§ 709. Instream Beneficial Use Assessment.
23 CA ADC § 709BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS
Barclays Official California Code of Regulations Currentness
Title 23. Waters
Division 3. State Water Resources Control Board and Regional Water Quality Control Boards
Chapter 2. Appropriation of Water
Article 6. Contents of Application and Instream Beneficial Use Assessment
23 CCR § 709
§ 709. Instream Beneficial Use Assessment.
(a) The instream beneficial use assessment required by Water Code Section 1250.5 shall provide information including but not limited to:
(1) design, construction and operation of the project;
(2) in the area affected by the project: identification, and quantification, to the extent possible, of fish, wildlife and botanical resources; aquatic, riparian and terrestrial habitats; hydrology, including water quality and quantity relationships; geologic and soil resources; recreational demand; cultural resources; aesthetic values; specially designated or protected species, habitats, areas, or stream sections; and landuse plans;
(3) the applicant's preliminary findings on the flow regime necessary to protect existing resources and beneficial use levels, and assumptions and methodologies used to make this determination;
(4) the applicant's assessment of the effect of the proposed project on existing resources and current beneficial use levels, and assumptions and methodologies used to make this determination.
(b) The board shall develop a mailing list in connection with such applications and make it available to the applicant within 30 days after the application is accepted and given a priority of right (as defined in Water Code Section 1450) so that applicants may contact the parties on the board's mailing list prior to beginning work on the instream beneficial use assessment to obtain their opinion as to the appropriate scope and content of the instream beneficial use assessment.
(c) Applicants for water rights for small hydroelectric projects who are required by Water Code Section 1250.5 to do an instream beneficial use assessment must complete the Instream Beneficial Use Assessment Form. The entire Instream Beneficial Use Assessment Form for Small Hydroelectric Facilities, adopted by the board in June 1983 is incorporated by reference in this section. It may be obtained from the Division of Water Rights of the board.
(1) The applicant should determine the depth of analysis required to complete the “Instream Beneficial Use Assessment Form” after an initial investigation that includes consultation with the appropriate local, state and federal agencies and other interested parties and organizations, which are identified on the board's mailing list. The applicant may also know other interested or potentially affected parties, who should be consulted.
(2) Following consultation with resources management agencies and other interested parties, the applicant should develop a written copy of work for completion of the “Instream Beneficial Use Assessment Form.” The written scope of work must be submitted to the Division of Water Rights for staff review. Based upon the staff review, the Division may agree that the applicant should proceed with the instream beneficial use assessment, or alternatively, the Division may schedule a meeting or scoping session to enable the applicant, the responsible resource agencies and other interested and concerned parties to discuss information needs and make recommendations for a revised scope of work acceptable to the Division.
(3) The following definitions are applicable to the Instream Beneficial Use Assessment Form:
(A) “Bedload” refers to the particles in a stream channel that mainly move by jumping, sliding or rolling on or near the bottom of the stream.
(B) “Bank-full capacity” refers to the rate of water flow that completely fills a channel; i.e., the rate at which the water surface is level with the flood plain. The bank-full state is the most effective or dominate channel-forming flow.
(C) “Change in streamflow regime” see (CC) “Streamflow Regime, Change In,” below.
(D) “Critical area” refers to the terrestrial or riparian area on either side of the critical reach that is influenced by the amount of streamflow.
(E) “Critical reach” refers to that section of the stream extending either from the point of diversion or, if the project includes an impoundment, the most upstream point of the impoundment to the point of return.
(F) “Critical riparian/wetland area” is the area on either side of the water course that is influenced by the amount of streamflow, and extends from the point of diversion or uppermost point of the impoundment, whichever is the highest upstream point, to the point of return. This area also includes stream influenced wetlands, including but not limited to wet meadows, marshes, swamps and overflow areas.
(G) “Deposition” refers to the laying down of material by erosion or transport by water.
(H) “Ecosystem” refers to a complex system composed of a community of fauna and flora taking into account the chemical and physical environment with which the system is interrelated.
(I) “Erosion” refers to a group of processes whereby earth or rock material is worn away, loosened or dissolved and removed from any part of the earth's surface. It includes the process of weathering, solution, corrosion and transportation.
(J) “Flood frequency curve” refers to a curve that plots over time the probability that floods of given magnitudes will recur.
(K) “Full length of the stream,” as used in the “Instream Beneficial Use Assessment Form,” will vary with individual site settings and will be determined on a case-by-case basis.
(L) “Groundwater recharge” refers to the addition to the water within the earth that occurs naturally from infiltration of rainfall and from water flowing over the earth materials that allow water to infiltrate below the land surface.
(M) “Habitat” or “primary habitat” refers to the place where an organism lives.
(N) “Habitat, migration” refers to that area which individuals periodically visit or through which individuals periodically pass on their way to another destination.
(O) “Habitat type” refers to a naturally occurring assemblage of plants. (For example: aspen, grove, white alder/willow forest, willow thicket, meadow.)
(P) “International whitewater scale” refers to a scale developed by the American Whitewater affiliation which is used to rate the boating difficulty of a river. Sections of a river are rated on a scale of I to VI, with VI being the most difficult.
(Q) “International scale of river difficulty”: (If rapids on a river generally fit into one of the following classifications, but if the water temperature is below 50 degrees Fahrenheit, or if the trip is an extended trip in a wilderness area, the river should be considered one class more difficult than normal.)
CLASS I. Moving water with a few riffles and small waves. Few or no obstructions.
CLASS II. Easy rapids with waves up to 3 feet, and wide, clear channels that are obvious without scouting. Some maneuvering is required.
CLASS III. Rapids with high, irregular waves often capable of swamping an open canoe. Narrow passages that often require complex maneuvering. May require scouting from shore.
CLASS IV. Long, difficult rapids with constricted passages that often require precise maneuvering in very turbulent waters. Scouting from shore is often necessary, and conditions make rescue difficult. Generally not possible for open canoes. Boaters in covered canoes and kayaks should be able to Eskimo roll.
CLASS V. Extremely difficult, long, and very violent rapids with highly congested routes which nearly always must be scouted from shore. Rescue conditions are difficult and there is significant hazard to life in event of mishap. Ability to Eskimo roll is essential for kayaks and canoes.
CLASS VI. Difficulties of Class V carried to the extreme of navigability. Nearly impossible and very dangerous. For teams of experts only, after close study and with all precautions taken.
(R) “Key species” refers to the species of concern in any given circumstances.
(S) “Landslides” refers to the failure of a slope in which the movement of the soil mass takes place along an interior surface of sliding.
(T) “Mudflows” refers to a moving mass of almost liquid material or wet earth caused by rain.
(U) “Nutrient transfer” refers to the transfer of nutrients from land to water through leaching and from water to land in times of floods.
(V) “Primary habitat” refers to the primary place where an organism lives.
(W) “Productivity” refers to the amount of living matter actually produced by the unit being discussed.
(X) “Change in streamflow regime” see (CC) “Streamflow Regime, Change In,” below.
(Y) “Riparian vegetation” refers to moisture-loving vegetation along a watercourse which is distinguished from other vegetation by its dependence on the combination of soil moisture and other environmental factors provided by a permanent or intermittent stream.
(Z) “Sediment transfer” refers to the quantity of sediment measured in dry weight or by volume, transported through a stream cross section in a given time. Consists of both suspended load and bedload.
(AA) “Slope stability” refers to an evaluation (almost always qualitative and expressed as a probability) of the tendency for the materials on or constituting a slope (e.g., rocks, soil, snow) to either remain in place or to move downhill.
(BB) “Spoils” refers to loose rock, solid and vegetation debris, left from construction activities.
(CC) “Streamflow regime, cange in” refers to the criteria which shall be considered in determining whether or not the project will change the streamflow regime, including but not limited to, the following:
1. Will the rate and volume of flow be changed?
2. Will the water temperature be changed?
3. Will there be changes in the concentration of dissolved oxygen?
4. Will there be changes in the timing of water releases from any existing water diversion or storage facility?
(DD) “Structural characteristics” refers to the physical or life -form characteristics of the habitat type described in terms of the vertical pattern, including but not limited to overstory, understory or seedling tree, tall or low shrub, perennial or annual herb, and moss or lichen, and the horizontal pattern described in terms of age-class.
(EE) “Suspended solids” refers to the small, solid particles in water that cause a cloudy condition. Particles of suspended sediment tend to settle at the channel bottom (settleable solids), but upward currents in turbulent flow counteract gravitational settling.
(FF) “Substrate” refers to the base on which an organism lives.
(GG) “Tailrace” refers to the channel, downstream of the draft tube, that carries the water discharged from the turbine. The draft tube is the discharge section of the turbine.
(HH) “Turbidity” refers to a measure of the extent to which light passing through water is reduced due to suspended materials. Excessive turbidity may interfere with light penetration and minimize photosynthesis, thereby causing a decrease in primary productivity. It may interfere directly with essential physiological functions of fish and other aquatic organisms, making it difficult for fish to locate a good food source, and altering water temperature.
(d) An instream beneficial use assessment shall be considered adequate when the Division of Water Rights has certified in writing, that:
(1) The applicant has filed with the Division of Water Rights 10 copies of the “Instream Beneficial Use Assessment Form,” legibly typed, properly executed, and has fully and adequately provided the information required in the form as determined by the Division of Water Rights.
(2) Within 10 days of the date the form is submitted to the board (1) the Division of Water Rights shall make copies available to resource management agencies, and (2) interested parties shall be notified of the availability of copies for examination at locations open to the public. This will include, at a minimum, two locations in the general area of the project, the Resources Agency Library, and Division of Water Rights headquarters. Copies also may be purchased from the Division at the cost of reproduction.
(3) The applicant has filed final and complete maps as required by the “Instream Beneficial Use Assessment Form,” as determined by the Division of Water Rights.
(e) Upon receipt of an instream beneficial use assessment, the division shall, within 90 calendar days, determine whether the assessment is adequate, taking into account the written scope of work, the discussion at the scoping session, if one is held, comments from other agencies and interested parties, and whether the assessment has met procedural requirements. Board approval of the adequacy of the assessment does not constitute endorsement of the assessment's preliminary findings on streamflow regime. (f) When the division determines that an instream beneficial use assessment is adequate, it shall inform the applicant, in writing, of such determination.
(g) If the division determines that an instream beneficial use assessment is inadequate, it shall, in writing, inform the applicant of that determination, shall specify those parts of the assessment that are inadequate, and shall indicate the manner in which they can be made adequate.
(h) To harmonize the provisions of Water Code Section 1250.5 with Article 5 of the Permit Streamlining Act (beginning with Government Code Section 65950) and the California Environmental Quality Act (beginning with Section 21000 of the Public Resources Code.):
(1) When an instream beneficial use assessment is required because a proposed project would change the streamflow regime, the one (or two) year time period within which the board must act pursuant to Water Code Section 1250.5 shall begin when a complete application has been filed and the Division of Water Rights has determined that the instream beneficial use assessment is adequate.
(i) An instream beneficial use assessment form shall not be accepted for filing unless it is filed concurrently with or after the application for the water right permit for the project.
(j) If there is a disagreement regarding any of the following which cannot be resolved at the division level:
(1) whether the streamflow regime will be changed and, therefore an instream beneficial use assessment required;
(2) the scope or content of the instream beneficial use assessment required from the applicant;
(3) the adequacy of an instream beneficial use assessment submitted by an applicant; then, within 30 days from the date of the staff determination any person may petition the board in writing to resolve the matter. Within 30 days following receipt of the petition, the Division of Water Rights shall schedule the matter for a workshop for a determination by the board. The board may either resolve the issue at the workshop or schedule a hearing on the matter.
Note: Authority cited: Section 1058, Water Code. Reference: Sections 106.7 and 1250.5, Water Code; and Section 21069, Public Resources Code.
1. Renumbering and amendment of Section 670.6 to Section 709 filed 1-16-87; effective thirtieth day thereafter (Register 87, No. 10). For prior history, see Register 83, No. 32.
2. Editorial correction amending subsections (c)(2), (c)(3)(N), (c)(3)(W), (c)(3)(Z), (d)(1), (d)(2) and (h)(1) (Register 2005, No. 17).
This database is current through 6/24/22 Register 2022, No. 25
23 CCR § 709, 23 CA ADC § 709
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