§ 1728
450 words·~2 min read·
/ca/water-code/1728A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(a)The board shall review a petition for a temporary change of water rights in accordance with this section.
(b)The board shall approve a temporary change if it determines that a preponderance of the evidence shows both of the following:
(1)The proposed temporary change would not injure any legal user of the water, during any potential hydrologic condition that the board determines is likely to occur during the proposed change, through significant changes in water quantity, water quality, timing of diversion or use, consumptive use of the water, or reduction in return flows.
(2)The proposed temporary change would not unreasonably affect fish, wildlife, or other instream beneficial uses.
(c)The petitioner shall have the burden of establishing that a proposed temporary change would comply with paragraphs
(1)and
(2)of subdivision (b). If the board determines that that petitioner has established a prima facie case, the burden of proof shall shift to any party that has filed a comment pursuant to subdivision
(f)of Section 1726 to prove that the proposed temporary change would not comply with paragraphs
(1)and
(2)of subdivision (b). The board may make a determination required by this subdivision without a hearing.
(d)In reviewing a petition for a temporary change, the board shall not modify any term or condition of the petitioner’s permit or license, including those terms that protect other legal users of water, fish, wildlife, and other instream beneficial uses, except as necessary to carry out the temporary change in accordance with this article.
(e)In applying the standards set forth in paragraphs
(1)and
(2)of subdivision (b), the board shall not deny, or place conditions on, a temporary change to avoid or mitigate impacts that are not caused by the temporary change. Neither the Department of Fish and Wildlife, nor any other state agency that comments on the proposed temporary change, shall propose conditions to mitigate effects on fish, wildlife, or other instream beneficial uses that are not caused by the proposed temporary change. This subdivision does not limit the board, the Department of Fish and Wildlife, or any other state agency, in proceedings pursuant to any provision of law other than this article.
(f)The board shall explain its decision on a petition in writing and provide copies of the decision to the petitioner, the Department of Fish and Wildlife, the board of supervisors of the county or counties in which the petitioner currently stores or uses the water subject to the petition, the board of supervisors of the county or counties to which the water is proposed to be transferred, the proposed transferee, and any party who has filed a written comment on the petition.