BILL NUMBER: SB 543	CHAPTERED  09/22/05

	CHAPTER  263
	FILED WITH SECRETARY OF STATE  SEPTEMBER 22, 2005
	APPROVED BY GOVERNOR  SEPTEMBER 22, 2005
	PASSED THE SENATE  AUGUST 31, 2005
	PASSED THE ASSEMBLY  AUGUST 25, 2005
	AMENDED IN ASSEMBLY  AUGUST 15, 2005
	AMENDED IN ASSEMBLY  JULY 11, 2005
	AMENDED IN SENATE  MAY 27, 2005
	AMENDED IN SENATE  APRIL 27, 2005

INTRODUCED BY   Senator Margett

                        FEBRUARY 18, 2005

   An act to amend Section 14666.8 of the Government Code, and to add
Chapter 6.5 (commencing with Section 12899) to Part 6 of Division 6
of the Water Code, relating to water.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 543, Margett  State Water Project.
   (1) Under existing law, the Department of Water Resources operates
the State Water Resources Development System (State Water Project).

    This bill would establish a permit program, administered by the
department, for encroachments on State Water Project rights-of-way.
The bill, with certain exceptions, would make any person who makes an
alteration, improvement, encroachment, or excavation within the
right-of-way acquired for the State Water Project, without a permit,
guilty of a misdemeanor. The bill would provide for civil penalties,
and, with certain exceptions, would also make it unlawful for any
person to drain water, or permit water to be drained from the person'
s lands onto the State Water Project right-of-way, or to obstruct any
natural watercourse or store or distribute water in a described
manner. The bill would allow persons to continue certain authorized
encroachments.
   By creating new crimes, this bill would impose a state-mandated
local program.
   (2) Existing law authorizes the Director of General Services to
enter into an agreement to lease state-owned real property to any
provider of wireless telecommunications services for the location of
its facilities.
   This bill would require the Director of General Services to
consult with the Department of Water Resources before making any
state-owned real property that is part of the State Water Project
available for leasing for that purpose.
  (3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) The State Water Resources Development System serves a critical
public infrastructure function by providing water to California's
residents, businesses, farms, environment, and other users.
   (b) It is vital for the Department of Water Resources to be able
to protect this infrastructure from encroachments that may threaten
the integrity, or interfere with the operation and maintenance, of
this system.
   (c) The Department of Water Resources needs the authority to
control encroachments while respecting the property rights of others.
However, certain encroachments that are located within the
department's right-of-way may need to be removed because those
encroachments threaten the integrity of the State Water Resources
Development System or interfere with its operation and maintenance.
  SEC. 2.  Section 14666.8 of the Government Code is amended to read:

   14666.8.  (a) The director shall, within 120 days of the operative
date of this section, compile and maintain an inventory of
state-owned real property that may be available for lease to
providers of wireless telecommunications services for location of
wireless telecommunications facilities. This inventory shall be the
state's sole inventory of state-owned real property available for
this purpose. The term "state-owned real property," as used in this
section, excludes property owned or managed by the Department of
Transportation and property subject to Section 7901 of the Public
Utilities Code.
   (b) The director shall provide, in a cost-effective manner, upon
payment of any applicable fee, a requesting party a copy of the
inventory.
   (c) On behalf of the state, the director may negotiate and enter
into an agreement to lease department-managed and state-owned real
property to any provider of wireless telecommunications services for
location of its facilities. A lease for this purpose shall do all of
the following:
   (1) Provide for fair market value to be paid by the provider of
wireless telecommunications service to the state to the extent
permitted under existing state law.
   (2) Designate a lease term that is acceptable to the director and
the state agency that has control over the property. The duration of
the initial lease term for any wireless facility may not exceed 10
years, and the lease may provide for a negotiated number of renewal
terms, not to exceed five years for each term.
   (3) Provide for the use of the wireless provider's facilities
located on the state-owned real property by any appropriate state
agency if technically, legally, aesthetically, and economically
feasible.
   (4) Facilitate, to the greatest extent possible, agreements among
providers of wireless telecommunications services for colocation of
their facilities on state-owned real property.
   (d) Nothing in this section alters any existing rights of
telegraph or telephone corporations pursuant to Section 7901 of the
Public Utilities Code.
   (e) Notwithstanding any other provision of law, any revenue
collected from a lease entered into pursuant to this section to use
property that was acquired with money from a fund other than the
General Fund shall be deposited into the fund from which the money
was obtained. Money received and deposited into a fund pursuant to
this section shall be available upon appropriation by the
Legislature, notwithstanding any other provision of law.
   (f) Before making any state-owned real property that is part of
the State Water Resources Development System, as described in Section
12931 of the Water Code, available for leasing under this section,
the director shall consult with the Department of Water Resources as
to whether the proposed location of a wireless telecommunication
facility is technically, legally, environmentally, and economically
feasible for wireless telecommunication purposes.
  SEC. 3.  Chapter 6.5 (commencing with Section 12899) is added to
Part 6 of Division 6 of the Water Code, to read:
      CHAPTER 6.5.  STATE WATER RESOURCES DEVELOPMENT SYSTEM
RIGHTS-OF-WAY

   12899.  The following definitions govern the construction of this
chapter:
   (a) "State Water Resources Development System" means the State
Water Resources Development System as described in Section 12931,
including, but not limited to, all portions of the project authorized
pursuant to the Central Valley Project Act (Part 3 (commencing with
Section 11100)) and additions thereto.
   (b) "Encroachment" means any installation of any tower, pole,
pipe, fence, building, structure, object, or improvement of any kind
or character that is placed in, on, under, or over any portion of the
State Water Resources Development System or other use of the
department's right-of-way, including the alteration of the ground
surface elevation by more than one foot, or the planting of trees,
vines, or other vegetation on the department's right-of-way that may
pose a threat to the physical integrity of any facility of the State
Water Resources Development System or that could interfere with the
department's rights with regard to access, inspection, repair, or the
operation and maintenance of any State Water Resources Development
System facility.
   (c) "Person" means any person, firm, partnership, association,
corporation, other business entity, nonprofit organization, or
governmental entity.
   (d) "Right-of-way" means any property interest acquired by the
department for State Water Resources Development System purposes,
including but not limited to, an easement, license, permit, joint use
agreement, or fee ownership.
   12899.1.  (a) Except as provided by Section 12899.8, no person
shall make any alteration, improvement, encroachment, or excavation
within the right-of-way acquired for the State Water Resources
Development System, without first obtaining the written permission of
the department.
   (b) Any person proposing to make an alteration, improvement,
encroachment, or excavation within the right-of-way acquired for the
State Water Resources Development System shall submit an application
to the department on a form prescribed by the department, along with
other reports, studies, and analyses as required by the department.
   (c) The department may issue a written permit, in accordance with
this chapter, authorizing the permittee to do any act that is not
inconsistent with the functioning, operation, maintenance,
enlargement, and rehabilitation of any portion of the facilities of
the State Water Resources Development System.
   (d) By issuing the permits, the department is not responsible for
the competence or reliability of the permittee or the encroachment.
   (e) The department shall approve or deny an application for an
encroachment permit not later than 60 days from the date of receipt
of the complete application, as determined by the department. An
application for a permit is complete when all application
requirements and other statutory requirements, including, but not
limited to, the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code), have
been met. Not later than 30 days from the date on which the
application is received, the department shall determine whether an
application is complete. The department shall not unreasonably deny
an application for a permit. If the department denies an application
for a permit, it shall provide an explanation of the reason for the
denial at the time of notifying the applicant of the denial.
   (f) Except as provided by Section 12899.8, any person who makes an
alteration, improvement, encroachment, or excavation within the
right-of-way acquired for the State Water Resources Development
System, without a permit, is guilty of a misdemeanor.
   12899.2.  (a) Any act performed under the authority of a permit
issued pursuant to this chapter shall be in accordance with the
applicable provisions of this chapter and the terms and conditions of
the permit.
   (b) The department may prescribe requirements in the permit,
including a requirement that the permittee pay the entire expense of
restoring the affected State Water Resources Development System
facilities to a condition equivalent to that before the work was
performed, and requirements relating to the location and manner in
which the work shall be performed, as determined by the department to
be necessary for the protection of the department's facilities.
   (c) Any permit issued to a permittee shall include a provision
that requires the permittee to relocate or remove the encroachment in
the event the future repair, rehabilitation, or improvement of the
State Water Resources Development System requires the relocation or
removal of the encroachment at the sole expense of the permittee.
   (d) The department shall charge an application processing and
review fee for a permit to use the right-of-way.
   (e) The department may inspect and supervise the work performed
under any permit issued under this chapter, in which event the
permittee shall pay the reasonable cost of that inspection and
supervision to the department, not to exceed the amount estimated by
the department at the time of issuing the permit or commencement of
work. If the actual costs exceed the estimated costs, an additional
fee shall be required by the department before final permit approval
or at the end of the inspection. If the actual costs are less than
the estimated costs, the department shall refund the difference.
   (f) Before granting a permit under this chapter, the department
may require any applicant to provide proof of insurance naming the
department as an additional insured in an amount reasonably necessary
to protect the state's interest.
   (g) Before granting a permit under this chapter, the department
may require any applicant, other than a county, city, city and
county, or public agency that is authorized by law to establish and
maintain any works or facilities within the department's
right-of-way, to file with the department a satisfactory bond payable
to the department in an amount that the department determines to be
sufficient, conditioned on the proper compliance by the permittee
with this chapter. The department may require a bond from a county,
city, city and county, or public agency that, prior to submitting an
application, failed to comply with this chapter or with the
conditions of a previous permit.
   12899.3.  No corporation has any franchise rights within the
department's right-of-way, and no county, city, or city and county
has any right to grant a franchise within that right-of-way. This
section does not apply to a State Water Resources Development System
right-of-way located within city, county, or city and county public
roadways.
   12899.4.  The department may delegate, to any entity that has a
contract with the department pursuant to Section 11625, any of the
department's powers, duties and authority, other than approval, under
this chapter as to any facility of the State Water Resources
Development System that primarily benefits that entity, and may
withdraw that delegation of authority.
   12899.5.  (a) Except as provided by Section 12899.8, if any
encroachment exists within the department's right-of-way, the
department may require the removal of the encroachment in the manner
provided in this section.
   (b) Except as provided in subdivision (e), notice shall be given
to the owner, occupant, or person in possession of the encroachment,
or to any other person causing or permitting the encroachment to
exist, by serving a notice including a demand for the immediate
removal of the encroachment from within the right-of-way. The notice
shall describe the encroachment with reasonable certainty as to its
character and location. In lieu of service upon the person, service
of the notice may also be made by registered mail and posting for a
period of five days, a copy of the notice on the encroachment
described in the notice. In the case of an owner, occupant or person
in possession, who is not present in the county, the notice may be
given to an agent in lieu of service by mailing and posting.
   (c) The department may remove from the State Water Resources
Development System any right-of-way encroachment that meets both of
the following criteria:
   (1) Not later than 60 days from the date on which a notice was
given pursuant to subdivision (b), the owner, occupant, or person in
possession of the encroachment has not asserted a right to be in
possession consistent with Section 12899.8 and has not removed, or
commenced to remove in a diligent manner, the encroachment.
   (2) The encroachment obstructs, threatens, or prevents the proper
operation, maintenance, or rehabilitation of the State Water
Resources Development System.
   (d) The department may immediately remove from the State Water
Resources Development System any right-of-way encroachment that meets
both of the following criteria:
   (1) Not later than five days from the date on which a notice is
given pursuant to subdivision (b), the owner, occupant, or person in
possession of the encroachment has not asserted a right to be in
possession consistent with Section 12899.8 and has not removed, or
commenced to remove in a diligent manner, the encroachment.
   (2) The encroachment poses an imminent threat to the integrity of
one or more features of the State Water Resources Development System.

   (e) In the case of an emergency, the department has the authority
to take any action necessary to avert, alleviate, repair, or mitigate
any threat to the State Water Resources Development System. For the
purposes of this chapter, "emergency" means a sudden, unexpected
occurrence that poses a clear and imminent danger, requiring
immediate action to prevent or mitigate the loss or impairment of
life, health, property, or essential public services.
   (f) If the department removes any encroachment upon the failure of
the owner to comply with the notice pursuant to this section, the
department may recover the expense of the removal, costs and expenses
of suit, including attorneys fees, and, in addition, the sum of one
thousand dollars ($1,000) for each day the encroachment remains after
the expiration of the applicable response period described in
subdivision (c) or (d).
   (g) If the owner, occupant, or person in possession of the
encroachment, or person causing or suffering the encroachment to
exist, or the agent of any of these parties, disputes or denies the
existence of the encroachment, asserts a right to be in possession
consistent with Section 12899.8, or refuses to remove or permit the
removal of the encroachment, the department may commence, in any
court of competent jurisdiction, an action to abate the encroachment
as a public nuisance. If judgment is recovered by the department, it
may, in addition to having the encroachment adjudged a nuisance and
abated, recover one thousand dollars ($1,000) for each day the
encroachment remains after the expiration of the applicable response
period described in subdivision (c) or (d), and may also recover the
expense of that removal, and costs and expenses of the suit,
including attorney's fees.
   12899.6.  (a) Unless a person is otherwise authorized, by permit
or agreement, to do so, it is unlawful for any person to do any of
the following acts:
   (1) Drain water, or permit water to be drained, from the person's
lands onto the State Water Resources Development System right-of-way
by any means, which results in damage to the system or the department'
s right-of-way, except where the water naturally drains onto the
department's right-of-way.
   (2) Obstruct any natural watercourse in a manner that does any of
the following:
   (A) Prevents, impedes, or restricts the natural flow of waters
from any portion of the department's right-of-way into and through
the watercourse or State Water Resources Development System cross
drainage structures, unless other adequate and proper drainage is
provided.
   (B) Causes waters to be impounded within the department's
right-of-way that damages the State Water Resources Development
System or the department's right-of-way, except where the water
naturally drains onto the department's right-of-way.
   (C) Causes interference with, or damages or makes hazardous the
operation, maintenance, and rehabilitation of the State Water
Resources Development System.
   (3) Stores or distributes water for any purpose so as to permit
the water to overflow onto, causing damage to, or to obstruct or
damage any portion of, the State Water Resources Development System
or the department's right-of-way.
   (b) When notice is given by the department, in the manner provided
in Section 12899.5, to any person permitting a condition to exist,
as described in subdivision (a) the person shall immediately cease
and discontinue the diversion of waters or shall discontinue and
prevent the drainage, seepage, or overflow and shall repair, or pay
for the repair, of any damage to the State Water Resources
Development System or the department's right-of-way. The person to
whom the notice is provided may challenge, administratively in
accordance with regulations adopted pursuant to Section 12899.9, or
in a court of competent jurisdiction, the propriety of the
determination by the department.
   (c) If any person is notified pursuant to subdivision (d) and
fails, neglects, or refuses to cease and discontinue the diversion,
drainage, seepage, or overflow of the waters or to make or pay for
the repairs, the department may make repairs and perform work as it
determines necessary to prevent the further drainage, diversion,
overflow, or seepage of the waters.
   (d) The department may recover in an action at law, in any court
of competent jurisdiction, the amount expended for those repairs and
work, and in addition, the sum of one thousand dollars ($1,000) for
each day the drainage, diversion, overflow, or seepage of the waters
is permitted to continue, after the service of the notice in the
manner specified in this chapter, together with the costs and
expenses, including attorneys fees, incurred in the action.
   12899.7.  Any person who by any means willfully or negligently
injures or damages any feature of the State Water Resources
Development System or the department's right-of-way is liable for
necessary repairs, and the department may recover in an action at law
the amount expended for the repairs, together with the costs and
expenses, including attorneys fees, incurred in that action.
   12899.8.  (a) Notwithstanding any other provision of this chapter,
and except as otherwise provided in an agreement between the
department and landowner or predecessor-in-interest, any person
owning a legal real property interest over a portion of the State
Water Resources Development System right-of-way, or who has an
agreement with the department for the construction, operation, and
maintenance of an encroachment, is not required to obtain a permit
from the department for exercising their property or other rights,
but shall submit their plans to the department for review and comment
before undertaking any additional work within the department's
right-of-way. A person's legal real property or other interests shall
be determined by the department upon the review of the appropriate
document, agreement, or reservation of rights. The department shall
respond not later than 30 days from the date of the receipt of the
plans.
   (b) Notwithstanding any other provision of this chapter, any
holder of a current State Water Resources Development System
encroachment permit on January 1, 2007, or a person who has an
agreement with the department for the construction, operation, and
maintenance of an encroachment as of that date, may continue the
authorized encroachment pursuant to the terms, conditions, and
limitations of that permit or agreement.
   12899.9.  The department may adopt regulations to implement this
chapter, including regulations that provide for the filing of an
application for a permit, related administrative review and
inspection, the imposition of permit fees and permit terms and
conditions, an administrative appeal process, and a process for
administrative review and regulation of existing encroachments in
accordance with this chapter.
   12899.10.  This chapter does not apply to the activities of a
public agency that operates facilities of the State Water Resources
Development System that are jointly owned by the state and the United
States, including facilities of the San Luis Unit of the Central
Valley Project, if the activities are conducted pursuant to, and
consistent with, an agreement with the United States for the
operation and maintenance of those facilities.
   12899.11.  (a) The department, not later than 60 days from the
date on which it receives a complete application, shall issue a
general encroachment permit, for a period not to exceed 10 years, for
routine operation and maintenance activities of public agencies with
a contract with the department for delivery of water pursuant to
subdivision (b) of Section 12937.
   (b) For the purposes of this section, "operation and maintenance"
means inspection, equipment testing and maintenance, water quality
monitoring and testing, weed and pest abatement, and other activities
that the department determines are consistent with existing
agreements between the department and its water contractors.
  SEC. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.