Water Rights Applications: State Filed Applications
Introduction
State Filed Applications are a special type of post-1914 appropriative water right application, as defined by Water Code Section 10500 et seq.
In 1927, the California Legislature passed the Feigenbaum Act, which authorized the state to file applications for the appropriation of water for the development of water resources of the state. These State Filed Applications have a priority as of the date of the application, thus later appropriators take their water subject to the potential subsequent use of water under these more-senior filings. In general, California’s water rights laws provide the highest priority to appropriate water to the earliest users. This principle of “first in time, first in right” is an important feature in the law of water rights and defines water right priority expectations for appropriators. State Filed Applications have the potential to disrupt priority expectations for appropriators and need to be considered when establishing the amount of water available for appropriation.
Shasta Reservoir, an example of a project that was granted an assignment of a State Filed Application pursuant
to Water Code section 10500 et seq.
Frequently Asked Questions
A State Filed Application is an application filed by a state agency for the appropriation of water that may be required as part of implementation of a general or coordinated plan for the development of water resources of the state, as stipulated by Water Code section 10500 et seq. Such applications have been filed based on preliminary predictions of potential future project locations and represent large quantities of water. The first of these applications was filed in July 1927, and the most recent one was filed in September 1986.
The Water Code provides that State Filed Applications are to be held in trust by the State Water Board until they are assigned. (Wat. Code, § 10504.) The same legislation specifically exempts State Filed Applications from the requirement to diligently pursue a water right application that ordinarily applies. Parties with projects that do not conflict with the general or coordinated plan described in a State Filed Application or with water quality objectives established pursuant to law may petition the Board for assignment of all or part of that application. If the petition for assignment is granted, ownership of all or part of the state filing is transferred to that party. Once all or a portion of a State Filed Application has been assigned, the assignee is subject to the requirement to diligently pursue its water right application. (Wat. Code, § 10504.)
State Filed Applications have priority over all subsequent applications, except as to applications for which a release from priority has been granted. A major benefit of acquiring a State Filed Application is acquiring the priority date of that filing.
Current information pertaining to water rights records related to State Filed Applications can be accessed through State Water Board’s eWRIMS Database. You can search for State Filed Applications by selecting the “Appropriative (State Filing)” criteria under the “Water Right Type” field. You can access the application forms for State Filed Applications via the e-WRIMS Water Right Search Results page and the View Document link.
As of September 2019, there were 185 State Filed Applications available for assignment with all or a portion of their face value remaining for allocation. The face value of all of these applications is about 207 million acre-feet (MAF), and about 123 MAF if applications for hydroelectric power are excluded. The total amount of water available for appropriation by storage and direct diversion is about 89 million acre-feet per year and 75,000 cubic feet per second respectively, under all applications not filed for hydropower. For comparison, the sum of the face values of all active licensed, permitted or registered appropriative surface water rights on record is about 315 MAF.
Many State Filed Applications have been fully assigned since the Legislature first authorized such assignments. Water rights records indicate that 11 of the State Filed Applications currently available for assignment have been partially assigned. As of September 2019, petitions are pending to obtain ownership of all or a part of 13 of the state filings.
A party wishing to build a project that is substantially described by a State Filed Application or a portion thereof, may petition the State Water Board for the assignment of all or a part of that state filing.
The State Water Board may grant the petition for assignment when the proposed assignment is for the purpose of development not in conflict with the general or coordinated plan described in the State Filed Application or with water quality objectives established pursuant to law. The Board may not assign a State Filed Application if the county in which the water covered by the proposed application originates would be deprived of water necessary for its development.
A petition for assignment should include a cover letter and a completed application form which fully describes the project to be constructed. A bona fide attempt to conform to the rules of the State Water Board and the law must be made when completing the proposed application in accordance with Water Code section 1260 et seq. The applicable fee must also be submitted. If a water right application is accompanied by a petition for assignment of a State Filed Application pursuant to Water Code section 10504, then an additional fee must be provided ($5,000 as of September 2019). Multiple parties may petition for the same filing, and equally compete regardless of date of petition.
If you are considering pursuing an assignment, as a first step, please contact the Division of Water Rights permitting supervisor responsible for the area in which your project is located.
In addition to filing a petition for assignment of a State Filed Application, a number of parties have filed a “backup” companion application along with a request for a release from priority of a state filing. Companion applications are filed to establish a water right pursuant to the Water Code’s ordinary water right application procedures in the event that the petition for the assignment of a state filing is not granted. Companion applications follow the standard water right application process, including the applicable filing fee.
A water right applicant proposing a project that is substantially different, but not in conflict with, the project described by a State Filed Application, may request from the State Water Board a release from priority of a State Filed Application. A release from priority operates as a limited exception to the rule of priority, precluding the eventual assignee of the State Filed Application from asserting priority against the water right holder who obtained the release. The recipient of the release from priority does not acquire the priority of the State Filed Application or any other priority date different from the priority of its date of filing.
The State Water Board may grant a release from priority when the proposed release is for the purpose of development not in conflict with the general or coordinated plan described in a State Filed Application or with water quality objectives established pursuant to law. The Board may not assign a State Filed Application if the county in which the water covered by the proposed application originates would be deprived of water necessary for its development.
A request for a release should include a cover letter and there must be either an application already on file with the Board or one must be submitted with the request describing the project to be favored by release. The applicable fee must also be submitted. As of September 2019, the fee for a request from priority of a state filed application pursuant to Water Code 10504 is $5,000. A person who files a request for release from priority must pay to the board a filing fee for each water right application covered by the request.
If you are considering pursuing a release from priority at the time of initial application filing, as a first step, please contact the Division of Water Rights permitting supervisor responsible for the area in which your project is located. A request for a release from priority may also be submitted for a pending application already on file with the State Water Board.
In accordance with Water Code section 10504.1, the State Water Board must hold a public hearing before any application is released from priority. Additional information on the State Water Board’s hearing process can be found on the Water Rights Hearing Program website.
Once the petition for the assignment of a State Filed Application is accepted, the State Water Board will generally adhere to its standard permitting practices to process the petitions and the associated water right applications. Before a permit is issued, a water availability analysis, consideration of environmental effects as required by California Environmental Quality Act, and consideration of the effect of the proposed project on public trust resources will need to be completed.
In accordance with Water Code section 10504.1, the State Water Board must hold a public hearing before any application is assigned. Two or more petitions for assignment of the same or related applications may be consolidated for purposes of hearing. When multiple parties are competing for the same State Filed Application, priority of right to assignment may not be gained by merely filing the first petition. Additional information on the State Water Board’s hearing process can be found on the Water Rights Hearing Program website.
Generally, water availability analyses should take into account the demand of all senior diversions. This encompasses all pending senior applications including known potential appropriations reserved under State Filed Applications. If there are no State Filed Applications in your project’s watershed or along the flow path of your proposed project, or the contributory flows from tributaries draining into the flow path, state filings do not need to be considered.
Division staff recommend that parties conducting water availability analysis evaluate their project under two scenarios, one with inclusion of the State Filed Application(s) and one without. The second scenario is useful to assess if the project is viable in the event a release from priority is granted, as in some watersheds sufficient water may not be available regardless of whether the State Filed Application ultimately results in a perfected water right.
There is the potential that the consideration of State Filed Applications in the water availability analysis for your application compels the conclusion that unappropriated water is not available for your project. In this scenario, applicants may wish to request from the State Water Board a release from priority of the State Filed Application. If your project is granted a release from priority of a State Filed Application, your application will no longer be subject to the senior water needs of that state filing. Your project would not acquire the priority of the state filing, but because your application would be considered senior to the State Filed Application your water availability analysis would no longer need to consider it.
If you have a pending application for which you have already completed a water availability analysis, please contact the permitting staff lead assigned to your project to discuss the need to supplement your analysis.
No, a release from priority may only be pursued on a currently pending State Filed Application – i.e., before a permit has been issued pursuant to an assignment of a State Filed Application. If only a portion of a State Filed Application has been both assigned and permitted, a water right applicant or appropriator may request a release from priority as to the remaining portion that has not yet been permitted.
Water Plan – 1957 California Water Plan,
an example of a general or coordinated plan which served as the basis
for some of the state filings that have been made.
Guidance
- Information Pertaining to “State Filings’ (SWRCB, June 1976). Please note that some of the information provided in this document has been superseded.
Staff Contact
For more information on State Filed Applications, please contact the Division of Water Rights permitting supervisor responsible for the area in which your project is located.
