Wastewater Change Petitions

To request a wastewater change petition, the petitioner must follow these steps:

1. Review Program Criteria and Limitations. The prospective petitioner reviews the information about the program to determine if the petition is appropriate. A call to the State Water Board's Division of Water Rights at (916) 341-5300 may be helpful.
2. Submit a Petition. The process is initiated when a change petition is filed by the right holder. This petition specifically describes the proposed changes to the project. The petitioner must provide a copy of the complete petition package to, and request consultation with, both the Regional Water Quality Control Board and the California Department of Fish and Wildlife.
3. Review of the Petition Form. The Board notifies the petitioner shortly after receipt (typically within 30 days) if the petition is incomplete.
4. Environmental Review. Consideration of environmental effects is required by the California Environmental Quality Act before a change petition can be issued. The Board examines the proposed project's potential environmental impacts and determines whether mitigation measures will be needed. In addition to any obligation the State Water Board may have under the California Environmental Quality Act, the State Water Board has an independent obligation to consider the effect of the proposed project on public trust resources and to protect those resources where feasible.
5. Public Notice and Protest Resolution. If necessary, the State Water Board publishes a notice of the right holder's intent to change their project. Copies of any protests are given to the right holder who is required to respond.
6. Protest Resolution. The Board must address protests that have been filed. If both parties can agree to mutually acceptable conditions, the protest is resolved at this point in the process. In the event it is not resolved for small projects, Board may conduct a field investigation report to address the dispute. For appeals from the field investigation report and for large projects, a formal hearing is held before one or more members of the State Water Board. The State Water Board's decision is based upon the record produced during the hearing.
7. Hydrologic Analysis. Before granting a change petition, the State Board evaluates if the change could result in a decrease in stream flow. If analysis is needed, it may be conducted by the applicant, typically by an engineering consultant they retain, or by Board staff.
8. Compliance with Applicable Policies. Projects located in certain geographic areas are required to comply with applicable State Board Policies relevant to processing of a water right change petition. Petitions to change the point of discharge, place of use, or purpose of use of treated wastewater may be subject to the Policy for Maintaining Instream Flows in Northern California Coastal Streams (Policy), if the change may result in a decrease in natural flow in any portion of a watercourse located within the counties covered by the Policy (Marin, Sonoma, and portions of Napa, Mendocino, and Humboldt counties) unless the source of wastewater discharge is entirely comprised of imported water. To process wastewater change petitions, pursuant to the Policy, the State Water Resources Control Board requires sufficient information to determine whether the proposed change will impair instream beneficial uses due to a decrease in flow. The Policy includes processing requirements applicable to changes with and without the potential to impair instream beneficial uses due to a decrease in flow (Policy section 3.3.2.2). The Policy also includes processing requirements applicable to changes that may result in a decrease in flow on flow regulated main stem rivers (Policy section 3.2).

  Processing Flowchart: Evaluation of Wastewater Change Petitions Pursuant to the Instream Flow Policy

During the review process and before issuance, the Board will be looking for several requirements regarding the project and petition:

• Change can be made without injuring other legal users of water including the environment, and
• The petition is in the public interest, a concept that is an overriding concern in all Board decisions.
• The revised water right is then issued if the Board determines that the proposed change meets these criteria. If it determines otherwise, conditions may be imposed to ensure that the conditions are satisfied or the petition may be denied.
• Project Operation. Once the State Water Board has issued one or more orders approving one or more wastewater change petitions, the owner of the wastewater treatment facility must operate in accordance with the conditions of the order(s). Additional petitions may be required for the following two situations:
  • A Standard Change Petition if the owner of the wastewater treatment facility is proposing to change either: (1) the purpose of use, place of use, or point of discharge of treated wastewater, and the change will not result in a reduction of instream flows beyond the reduction already approved in an Order issued by the State Water Board; or, (2) any condition as described in any Order issued by the State Water Board.
  • An additional Wastewater Change Petition if the owner of the wastewater treatment facility is proposing to change the purpose of use, place of use, or point of discharge of treated wastewater and the change will result in a reduction of instream flows beyond the reduction already approved in the order or orders.

Three sections of the Water Code explicitly address ownership and water rights with respect to treated wastewater:

Water Code Section 1210: "The owner of a waste water treatment plant operated for the purpose of treating wastes from a sanitary sewer system shall hold the exclusive right to the treated waste water as against anyone who has supplied the water discharged into the waste water collection and treatment system, including a person using water under a water service contract, unless otherwise provided by agreement. Nothing in this article shall affect the treatment plant owner's obligations to any legal user of the discharged treated waste water. Nothing in this article is intended to interfere with the regulatory authority of the board or any California regional water quality control board under Division 7 (commencing with Section 13000)."

Water Code Section 1211: "(a) Prior to making any change in the point of discharge, place of use, or purpose of use of treated wastewater, the owner of any wastewater treatment plant shall obtain approval of the board for that change. The board shall review the changes pursuant to the provisions of Chapter 10 (commencing with Section 1700) of Part 2 of Division 2. (b) Subdivision (a) does not apply to changes in the discharge or use of treated wastewater that do not result in decreasing the flow in any portion of a watercourse."

Water Code Section 1212: "The board shall not grant any permit or license to any person other than the treated waste water producer for the appropriation of treated waste water where the producer has introduced such water into the watercourse with the prior stated intention of maintaining or enhancing fishery, wildlife, recreational, or other instream beneficial uses. Holders of existing water rights may not use or claim such water."

  Processing Flowchart: Evaluation of Wastewater Change Petitions Pursuant to the Instream Flow Policy

Petitions to change the point of discharge, place of use, or purpose of use of treated wastewater may be subject to the Policy for Maintaining Instream Flows in Northern California Coastal Streams (Policy), if the change may result in a decrease in natural flow in any portion of a watercourse located within the counties covered by the Policy (Marin, Sonoma, and portions of Napa, Mendocino, and Humboldt counties) unless the source of wastewater discharge is entirely comprised of imported water.

To process wastewater change petitions, pursuant to the Policy, the State Water Resources Control Board requires sufficient information to determine whether the proposed change will impair instream beneficial uses due to a decrease in flow. The Policy includes processing requirements applicable to changes with and without the potential to impair instream beneficial uses due to a decrease in flow (Policy section 3.3.2.2). The Policy also includes processing requirements applicable to changes that may result in a decrease in flow on flow regulated main stem rivers (Policy section 3.2).

If I am going to pursue a wastewater change petition in the Policy area, what is my first step?

As discussed in the Frequently Asked Questions, you are encouraged to coordinate with the Division of Water Rights (Division) as part of the pre-consultation process. Division staff can assist you with understanding the requirements of the Policy and the wastewater change petition process. To facilitate this discussion, you should begin to complete the Petition for Change form and Environmental Information form. In addition, you should compile information demonstrating whether and how there is a potential for the change to impair instream beneficial uses due to a decrease in flow. This information should be submitted with your petition forms and the appropriate filing fee. The Deputy Director for Water Rights will consider the information you compile when determining whether the proposed change has the potential to impair instream beneficial uses due to a decrease in flow.

What happens if the Deputy Director determines the change has the potential to impair instream beneficial uses?

Changes that have the potential to impair instream beneficial uses due to a decrease in flow (with the exception of changes on a flow regulated main stem river) must be evaluated using the Cumulative Diversion Analysis (CDA) methods established in the Policy. Accordingly, you would need to prepare a CDA to evaluate the stream reaches potentially affected by the proposed change. Division staff will review the analysis upon submittal and determine whether and subject to what conditions the petition should be approved based on the analysis results. For projects with the potential to impair instream beneficial uses on a flow regulated main stem river, the CDA requirement does not apply, but other aspects of the Policy may apply. You should consult with Division staff regarding the procedures and analysis required to process your petition.

Whatis a Cumulative Diversion Analysis (CDA)?

The Policy utilizes a CDA to evaluate whether or not a proposed project, in combination with senior diversions, adversely affects the instream flows needed for the protection of fishery resources. Procedures for preparing a CDA are contained in Appendices A and B of the Policy. A wastewater change petition is different from an appropriative water right in that the wastewater change petition is not requesting a withdrawal from a surface water body. For purposes of the CDA, however, any reduction in discharge rates or volumes to a surface water body will be treated as a demand on current instream flows, analogous to a diversion. This is because the reduced discharge will cause a decrease in instream flows. The “demand” associated with a reduced discharge will be treated as the most junior priority demand in a watershed.