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NYWD and Its Permits
The Water Commission Act of 1914 established today’s permit process.
The Act created the agency that later evolved into the State Board and granted it the authority to administer permits and licenses for California’s surface water. A water right is a legal entitlement authorizing water to be diverted from a specified source and put to beneficial, nonwasteful use. Water rights are property rights, but their holders do not own the water itself. They possess the right to use it.
NYWD has three permits bestowing the right to use water from South Fork Feather River, Feather River, Dry Creek, Slate Creek, and Lost Creek. Between the two permits that include waters from South Fork Feather River, Feather River, Slate Creek, and Lost Creek, NYWD is authorized to take 23,700 acre feet of water. NYWD can take all or part of the 23,700 acre feet from any of the named rivers; the permits do not restrict the amount of acre feet per river. The two permits work together. NYWD also has a pre-1914 appropriative right to water from Orolevee Creek. It is important to bear in mind three things:
1) Water rights given to an agency can be taken away if the California State Department of Water Resources (DWR) determines that the water is not being used for the beneficial purpose identified in each individual permit.
2) Beneficial Uses are only those uses that are consumptive in nature. Irrigation and domestic water service are the only two consumptive uses that are allowed. Using water for hydropower generation or as a water sale are not beneficial uses.
3) A permit bestows the water right to the agency – not the customer. Customers pay for the privilege of service from the agency.
A water right permit is an authorization to develop a water diversion and use project. The right to use water is obtained through actual beneficial use of the water within the limits described in the permit. After a water right permit is received, the project has been constructed, and the water used, the DWR inspects the project. If the water was used beneficially and all of the conditions of the permit were complied with, an agency or entity can be granted a water right license . Having a license is like having tenure – the agency essentially can’t modify it or take it away. Permits however, can be modified easily and/or taken away. If an agency or entity has not used all the water allowed by their permit, or if the water was used unreasonably, a license for less water than the permit allowed may be issued. A license is received for only that water that can be shown to have been reasonably and beneficially used for consumptive purposes.
The fact that NYWD has not been taking all of the water granted to it via Permits 11518 and 11516 (for example) means that DWR can reduce the amount of water NYWD is permitted to take. It is vitally important that all the water is taken each year it is available and put to beneficial use. In 2018, 1,000 acre feet of our water in Little Grass Valley Reservoir was not taken and the water was available.
The DWR Division of Water Rights issues water right permits and licenses. You can research, download and view the water right permits any person or agency holds by using the eWRIMS database System. You can also use the website to research, download, and view all annual reports submitted for each permit. The eWRIMS database System is an online public resource available to all. All of the permits NYWD holds are in that database. Appropriative pre-1914 water rights documents are not in that system.
Permit 1270 (License 12984) gives NYWD a right to the use of (French) Dry Creek a “Tributary to Yuba River thence Feather River thence Sacramento River for the Purpose of Irrigation and Fire Protection Uses“. (April 26, 1988). No hydrologic studies have been conducted to identify the sources of water for Dry Creek which originates aboveground northeast of Brownsville. Both Collins Lake Reservoir and Lake Mildred are man-made water collection /power generation structures built by damming Dry Creek.
NYWD is required to ensure that 4 cfs remains in Dry Creek for the protection of fish and wildlife as long as the natural flow is going. Once the creek dries up, NYWD is not required to maintain the 4 cfs flow.
Permits 11516 and 11518 were part of the contentious negotiations with SFWP in 1959 and again in 2005.
Permit 11516 (originally drawn up September 20, 1950) authorizes NYWD to “divert and use” water from Slate Creek. Water from Slate Creek is diverted into the Slate Creek Power Tunnel where it dumps into Lost Creek just upstream of Sly Creek Reservoir. This water ultimately produces power at the Sly Creek Powerhouse, travels down into Lost Creek Reservoir where it is diverted again into the Woodleaf Power Tunnel and on into SF-14.
Permit 11518 authorizes NYWD to “Divert and Use” water from Lost Creek, Feather River, and South Fork Feather River. Water from Little Grass Valley Reservoir is released into South Fork Feather River and is diverted via the South Fork Diversion into the South Fork Power Tunnel. That water also dumps into Lost Creek just upstream of Sly Creek Reservoir. This water ultimately produces power at the Sly Creek Powerhouse, travels down into Lost Creek Reservoir where it is diverted again into the Woodleaf Power Tunnel and on into SF-14.
Rights to Orolevee Creek waters were not granted via permits or licenses. The water right to Orolevee Creek dates back to the 19th century and is a pre-1914 appropriative water right. Prior to 1914, there was no comprehensive permit system available to establish appropriative water rights in California, and the establishment of such a right required simply posting and recording a notice of intended diversion and the construction and use of actual diversion facilities. Appropriative water is generally defined as water that is diverted for use on non-riparian land. The pre-1914 appropriative water right to Orolevee Creek was granted to NYWD as a result of the 2005 agreement wherein SFWPA filed a quitclaim deed and relinquishing all interest in Orolevee Creek water right. You cannot find the pre-1914 appropriative water right document for Orolevee in the EWRIMS database as this is not a permit or a license.
The appropriative right to Orolevee Creek is lost if the water is not used. The continuity of use is as important as the origin of the right. Orolevee Creek is an important source of water for the Forbestown Ditch and the Forbestown Treatment Plant. This water source is frequently left out of the discussion and it rightfully belongs there.
“Orolevee” is how we see it currently spelled on USGS maps; however, it has had various spellings through the years: Oro Leiva, Oro Leve, Oroleve, and Orolevee.