BILL NUMBER: AB 900 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 30, 2009
AMENDED IN ASSEMBLY APRIL 28, 2009
INTRODUCED BY Assembly Member De Leon
(Coauthors: Assembly Members Emmerson, Fuller, Gilmore, Salas, and
Solorio)
FEBRUARY 26, 2009
An act to amend Sections 5101 and 5103
5100, 5101, 5103, and 5107 of, to add Chapter 2.7 (commencing with
Section 348) to Division 1 of, and to repeal Section 5108 of,
of the Water Code, relating to water diversion.
LEGISLATIVE COUNSEL'S DIGEST
AB 900, as amended, De Leon. Water diversion: statements
of water diversion and use. Water diversion and use:
reporting.
Existing law, with certain exceptions, requires each person who
diverts water after December 31, 1965, to file with the State Water
Resources Control Board a prescribed statement of diversion and use.
Existing law requires a statement to include specified information,
including, on and after January 1, 2012, monthly records of water
diversions. Under existing law, the monthly record requirement does
not apply to a surface water diversion with a combined diversion
capacity from a natural channel that is less than 50 cubic feet per
second or to diverters using siphons in the tidal zone. Existing
law subjects a person who makes a material misstatement in
connection with t he filing of the diversion and use
statements to administratively imposed civil penalties in the amount
of $500 for each violation.
This bill would delete an exception to the statement requirement
for diversions included in the consumptive use data for the delta
lowlands published by the department in its hydrologic data
bulletins. The bill would add an exception to the statement
requirement for a surface water diversion from the Sacramento-San
Joaquin Delta, as defined, that has a combined diversion capacity of
less that 10 gallons per minute. The bill would, commencing January
1, 2011, impose the monthly record requirement on any surface water
diversion that has a specified diversion capacity that is within the
Delta, unless the board makes a specified determination. The bill
would also provide that the monthly record requirement would not
apply to a surface water diversion that is outside the Delta, and
that has a combined diversion capacity from a natural channel that is
less than 50 cubic feet per second. The bill would make related
findings and declarations.
This bill would revise the types of water diversions for which the
reporting requirement does not apply, including, among other
diversions, a diversion that occurs before January 1, 2009, if
certain requirements are met. The bill would revise those specified
exceptions that apply to the monthly record requirement, and
requirements relating to the contents of the statement of diversions
and use.
The bill would subject a person to civil liability if that person
fails to file, as required, a diversion and use statement for a
diversion or use that occurs after January 1, 2009, tampers with any
measuring device, or makes a material misstatement in connection with
the filing of a diversion and use statement. The board would be
authorized to impose the civil liability in accordance with a
specified schedule.
The bill would authorize the board and the Department of Water
Resources to adopt emergency regulations for the filing of reports of
water diversion or use that are required to be filed by those
respective state agencies under specified statutory provisions.
The bill would make additional conforming changes and would set
forth related legislative findings and declarations.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The San Francisco Bay-Sacramento-San Joaquin River Delta
(Delta) is in the midst of an ecological crisis. Its unique character
and capacity to serve California are threatened by a variety of
factors, including diversions of water, pollution, urbanization,
flood and seismic risks, and invasive species.
(b) The water that is found in, and delivered through, the Delta
is the source of drinking water for 25,000,000 Californians, fuels a
$37,000,000,000 agricultural industry, and serves as an important
habitat for over 750 plant and animal species.
(c) It has been estimated that there are approximately 1,800
agricultural, municipal, and industrial diversions in the Delta that,
combined, divert 5 percent of the freshwater flows from the Delta
watershed. However, because none of these in-Delta diverters are
required to measure and report their water diversion and use, there
is presently little data regarding the nature, extent, and location
of these diversions.
(d) Given the well-known importance of water to the state's
health, economy, and welfare, including to its ecosystems and natural
resources, water measurement and reporting is required in
virtually every part of the state, except in the Delta.
are required for most diversions.
(e) In order to develop the information necessary to inform
impending decisions regarding the allocation and use of water in, and
delivered through, the Delta, a baseline of water diversion
information from in-Delta diversions is necessary and appropriate.
(e) The Delta Vision Committee Implementation Report recommends
improved monitoring and reporting, including the elimination of
exemptions from requirements for the filing of statements of water
diversion and use.
SEC. 2. Chapter 2.7 (commencing with Section 348)
is added to Division 1 of the Water Code , to
read:
CHAPTER 2.7. WATER DIVERSION AND USE REPORTS
348. (a) The department or the board may adopt emergency
regulations providing for the electronic filing of reports of water
diversion or use required to be filed with the department or board
under this code, including, but not limited to, any report required
to be filed under Part 5.1 (commencing with Section 5100) of Division
2 and any report required to be filed by a water right permittee or
licensee.
(b) Emergency regulations adopted pursuant to this section, or any
amendments thereto, shall be adopted by the department or the board
in accordance with Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code. The adoption
of these regulations is an emergency and shall be considered by the
Office of Administrative Law as necessary for the immediate
preservation of the public peace, health, safety, and general
welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, any
emergency regulations or amendments to those regulations adopted
under this section shall remain in effect until revised by the
department or the board that adopted the regulations or amendments.
SEC. 3. Section 5100 of the Water Code
is amended to read:
5100. As used in this part:
(a) "Best available technologies" means technologies at the
highest technically practical level, using flow totaling devices, and
if necessary, data loggers and telemetry.
(b) "Best professional practices" means practices attaining and
maintaining the accuracy of measurement and reporting devices and
methods.
(c) "Diversion" means taking water by gravity or pumping from a
surface stream or subterranean stream flowing through a known and
definite channel, or other body of surface water, into a canal,
pipeline, or other conduit, and includes impoundment of water in a
reservoir.
(d) "Person" means all persons whether natural or artificial,
including the United States of America, State of California, and all
political subdivisions, districts, municipalities, and public
agencies.
(e) "Tidal zone" means those portions of the Sacramento-San
Joaquin Delta as described in Section 12220 that are ordinarily
subject to tidal action.
SEC. 2. SEC. 4. Section 5101 of the
Water Code is amended to read:
5101. Each person who, after December 31, 1965, diverts water
shall file with the board, prior to July 1 of the succeeding year, a
statement of his or her diversion and use, except that a statement is
not required to be filed if the diversion is any of the following:
(a) From a spring that does not flow off the property on which it
is located and from which the person's aggregate diversions do
not exceed 25 acre-feet in any year .
(b) Covered by an application, a
registration for small domestic or livestock stockpond uses, or
permit or license to appropriate water on file with the board.
(c) Included in a notice filed pursuant to Part 5 (commencing with
Section 4999).
(d) Regulated by a watermaster appointed by the department
and included in annual reports filed with a court or the board by the
watermaster, which reports identify the persons who have diverted
water and describe the general purposes and the place, the use, and
the quantity of water that has been diverted from each source.
.
(e) Reported by the department in its hydrologic data bulletins.
(f)
(e) A surface water diversion from the Sacramento-San
Joaquin Delta, as defined in Section 12220, that has a combined
diversion capacity of less than 10 gallons per minute.
(g)
(f) Included in annual reports filed with a court or
the board by a watermaster appointed by a court or pursuant to
statute to administer a final judgment determining rights to water,
which reports identify the persons who have diverted water and give
the general place of use and the quantity of water that has been
diverted from each source.
(h)
(g) For use in compliance with the provisions
of Article 2.5 (commencing with Section 1226) or
Article 2.7 (commencing with Section 1228) of Chapter 1 of Part
2.
(h) A diversion that occurs before January 1, 2009, if any of the
following applies:
(1) The diversion is from a spring that does not flow off the
property on which it is located, and the person's aggregate
diversions exceed 25 acre-feet in any year.
(2) The diversion is covered by an application to appropriate
water on file with the board.
(3) The diversion is reported by the department in its hydrologic
data bulletins.
(4) The diversion is included in the consumptive use data for the
Delta lowlands published by the department in its hydrologic data
bulletins.
SEC. 3. SEC. 5. Section 5103 of the
Water Code is amended to read:
5103. Each statement shall be prepared on a form provided by the
board. The statement shall include all of the following information:
(a) The name and address of the person who diverted water and of
the person filing the statement.
(b) The name of the stream or other source from which water was
diverted, and the name of the next major stream or other body of
water to which the source is tributary.
(c) The place of diversion. If a public land survey has
been made, location of diversion works shall be described to the
nearest 40-acre subdivision. If not, it shall be described by
reference to nearest local landmarks or other recorded surveys.
The location of the diversion works shall be depicted
on a specific United States Geological Survey topographic map, or
shall be identified using the California Coordinate System, or
latitude and longitude measurements. If assigned, the public land
description to the nearest 40-acre subdivision and the assessor's
parcel number shall also be provided.
(d) The capacity of the diversion works and of the storage
reservoir, if any, and the months in which water was used during the
preceding calendar year.
(e) (1) On and after January 1, 2012, monthly records of water
diversions. The measurements of the diversion shall be made using
best available technologies and best professional practices. Nothing
in this paragraph shall be construed to require the implementation of
technologies or practices that are by a
person who provides to the board documentation demonstrating that the
implementation of those practices is not locally cost
effective.
(2) Except as specified in paragraph (3), paragraph (1) does not
apply to a surface water diversion that is outside the Sacramento-San
Joaquin Delta, as defined in Section 12220, and that has a combined
diversion capacity from a natural channel that is less than 50 cubic
feet per second.
(3) Commencing January 1, 2011, paragraph (1) shall apply to any
surface water diversion that has a combined diversion capacity of 10
gallons per minute or greater that is within the Sacramento-San
Joaquin Delta, as defined in Section 12220, unless the board
determines that requiring the reporting of those diversions is
necessary for the efficient management of water rights.
(2) Paragraph (1) does not apply to a surface water diversion that
has a combined diversion capacity from a natural channel that is
less than 10 gallons per minute.
(4)
(3) (A) The terms of, and eligibility for, any grant or
loan awarded or administered by the department, the board, or the
California Bay-Delta Authority on behalf of a person that is subject
to paragraph (1) shall be conditioned on compliance with that
paragraph.
(B) Notwithstanding subparagraph (A), the board may determine that
a person is eligible for a grant or loan even though the person is
not complying with paragraph (1), if both of the following apply:
(i) The board determines that the grant or loan will assist the
grantee or loan recipient in complying with paragraph (1).
(ii) The person has submitted to the board a one-year schedule for
complying with paragraph (1).
(C) It is the intent of the Legislature that the requirements of
this subdivision shall complement and not affect the scope of
authority granted to the board by provisions of law other than this
article.
(f) For persons not subject to paragraph (1) of subdivision (e), a
description of the acreage of each crop irrigated, the average
number of people served with water, the average number of stock
watered, and the nature and extent of any other use during the
preceding calendar year, or other equivalent information that
indicates the quantity of water used as may be prescribed by the
board. Those who maintain water measuring devices and keep monthly
records of water diversions shall state the quantity of water
diverted by months during the preceding calendar year.
(g) The purpose of use.
(h) A general description of the area in which the water was
used. If the water was used on an area within the
1/16 section containing the point of
diversion, a statement to that effect will suffice; otherwise a
description or sketch of the general area of use shall be given.
used. The location of the place of use shall be
depicted on a specific United States Geological Survey topographic
map and on any other maps with identifiable landmarks. If assigned,
the public land description to the nearest 40-acre subdivision and
the assessor's parcel number shall also be provided.
(i) The year in which the diversion was commenced as near as is
known.
SEC. 6. Section 5107 of the Water Code
is amended to read:
5107. (a) The making of any willful misstatement pursuant to this
part is a misdemeanor punishable by a fine not exceeding one
thousand dollars ($1,000) or by imprisonment in the county jail for
not to exceed six months, or both.
(b) Any person who fails to file a statement required to be
filed under this part for a diversion or use that occurs after
January 1, 2009, who tampers with any measuring device, or who
makes a material misstatement pursuant to this part may be liable
civilly as provided in subdivision
subdivisions (c) and (d) .
(c) Civil liability may be administratively imposed by the board
pursuant to Section 1055 in an amount not to exceed five
hundred dollars ($500) for each violation. In determining the
appropriate amount, the board shall consider all relevant
circumstances, including, but not limited to, all of the following
factors: the following amounts:
(1) For failure to file a statement, one thousand dollars
($1,000), plus five hundred dollars ($500) per day for each
additional day of violation if the person fails to file a statement
within 30 days after the board has called the violation to the
attention of that person.
(2) For a violation resulting from a physical malfunction of a
measuring device not caused by the person or any other unintentional
misstatement, two hundred fifty dollars ($250), plus two hundred
fifty dollars ($250) per day for each additional day on which the
measuring device continues to malfunction or the misstatement is not
corrected if the person fails to correct or repair the measuring
device or correct the misstatement within 60 days after the board has
called the malfunction or violation to the attention of that person.
(3) For knowingly tampering with any measuring device or knowingly
making a material misstatement in a statement filed under this part,
twenty-five thousand dollars ($25,000), plus one thousand dollars
($1,000) for each day in which the violation continues if the person
fails to correct the violation within 30 days after the board has
called the violation to the attention of that person.
(4) For any other violation, five hundred dollars ($500), plus two
hundred fifty dollars ($250) for each additional day of violation if
the person fails to correct the violation within 30 days after the
board has called the violation to the attention of that person.
(d) When an additional penalty may be imposed under subdivision
(c) for failure to correct a violation or correct or repair a
malfunctioning measuring device within a specified period after the
violation has been called to a person's attention by the board, the
board, for good cause, may provide for a longer period for correction
of the problem, and the additional penalty shall not apply if the
violation is corrected within the period specified by the board.
(e) In determining the appropriate amount, the board shall
consider all relevant circumstances, including, but not limited to,
all of the following factors:
(1) The extent of harm caused by the violation.
(2) The nature and persistence of the violation.
(3) The length of time over which the violation occurs.
(4) Any corrective action undertaken by the violator.
(d)
(f) All funds recovered pursuant to this section shall
be deposited in the Water Rights Fund established pursuant to Section
1550.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal.
SEC. 7. Section 5108 of the Water Code
is repealed.
5108. Statements filed pursuant to this part shall be for
informational purposes only, and neither the failure to file a
statement nor any error in the information filed shall have any legal
consequences whatsoever other than those specified in this part.