AG Opinion

• Year: 2009
• Instream Flow Rules - Doc Type: Post Rulemaking Documents

In the event Staff identifies a water right application in the resume that may injure an ISF right, Staff shall
file a Statement of Opposition to that application. In the event Staff identifies a water right application in
the resume that may interfere with an ISF right as contemplated in Rule 7, Staff may file a Statement of
Opposition to that application-
8c. Ratification of Statements of Opposition.
At a Board meeting following the filing of the Statement of Opposition, Staff shall apprise the Board of the
filing of a Statement of Opposition and the factual basis for the Staff action. At that time. the Board shall
ratify the filing. disapprove the filing, or table the decision to a future meeting if more information is
needed prior to making a decision.
8d. Notice.
Prior to ratification of a Statement of Opposition, the Staff shall mail the applicant a copy of the Board
memorandum concerning the ratification and a copy of the agenda of the meeting in which the ratification
will be considered. Folloti~;~ing a Board action considering a Statement of Opposition. the Staff shall notify
the applicant and~or its attorney in writing of the Board's action.
8e. De Minimis Rule.
In the event that Staff determines a water court application would result in a 1 percent depletive effect or
less on the stream reach or lake subject of the ISF right. and the stream reach or lake has not been
excluded from; :his ruse pursuant to Rules 8f. or 8h.. Staff shall determine vrhether to file a Statement of
Opposition. Star"f~s decision not to file a Statement of Oppostion does not constitute- (1l acceptance by
the Board o- injury to any potentially affected ISF v~rater right: or (2i a waiver of the Boards right to place
an administrative ca!I for any ISF °~rater right.
(1 ~ If Staff does net file a Statement of Opposition. Staff shall notify the Division Engineer for the
relevant :rater di~~ision that it has not filed a Statement of Opposition. but that it may place an
administrative call for the potentially affected ISF water right(s). Such a call could be enforced
against the water rights subject of the application by the Division Engineer in his or her
enforcement discretion. Staff also shall mail a letter to the applicant at the address provided on
the application notifying the applicant: (a) of Staff's decision not to file a Statement of Opposition
pursuant to this Rule: (b) that the CWCB may place a call for its ISF water rights to be
administered within the prior appropriation system: and (c) that the Division Engineer's
enforcement of the call could result in curtailment or other administration of the subject water
right(s).
(2 i If Staff files a Statement of Opposition; Staff shall seek Board ratification by identifying and
summarizing the Statement of Opposition on the Board meeting consent agenda pursuant to Rule
8c.
8f. Cumulative Impact.
In determining existence of a de minimis impact, Staff shall consider the existence of all previous de
minimis impacts on the same stream reach or lake. If the combined total of all such impacts exceeds 1
percent. then Staff will file a Statement of Opposition regardless of the individual depletive effect of an
application.
8g. Notification of Staff Action.
At a Board meeting following a Staff determination to apply the De Minimis rule, the Staff shall notify the
Board about the factual basis leading to its application of the De Minimis rule.