BILL NUMBER: SB 565 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 2, 2010
AMENDED IN ASSEMBLY MAY 20, 2010
AMENDED IN ASSEMBLY FEBRUARY 1, 2010
AMENDED IN SENATE JUNE 2, 2009
AMENDED IN SENATE MAY 4, 2009
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senators Pavley and Steinberg
(Principal coauthor: Assembly Member Huffman)
FEBRUARY 27, 2009
An act to amend Sections 6103.1 and 6103.4 of the Government Code,
to amend Sections 1052, 1055, 1055.2, 1055.3, 1120, 1228.5, 1228.7,
1525, 1535, 1538, 1550, 1551, 1825, 1845, 5103,
and 5106 of, and to add Sections 1051.1, 1052.5, 1826, 1846, and 1847
to, the Water Code, relating to water resources.
LEGISLATIVE COUNSEL'S DIGEST
SB 565, as amended, Pavley. Water resources.
(1) Existing law generally prohibits the state, or a county, city,
district, or other political subdivision, or any public officer or
body acting in its official capacity on behalf of any of those
entities, from being required to pay any fee for the performance of
an official service. Existing law exempts from this provision any fee
or charge for official services required pursuant to specified
provisions of law relating to water use or water quality.
This bill would expand the exemption to other provisions relating
to water use, including provisions that require the payment of fees
to the State Water Resources Control Board (board) for official
services relating to statements of water diversion and use.
(2) Existing law authorizes the board to investigate all streams,
stream systems, lakes, or other bodies of water, take testimony
relating to the rights to water or the use of water, and ascertain
whether water filed upon or attempted to be appropriated is
appropriated under the laws of the state. Existing law requires the
board to take appropriate actions to prevent waste or the
unreasonable use of water. Under existing law, the board makes
determinations with regard to the availability of recycled water.
This bill would authorize the board, in conducting an
investigation or proceeding for these purposes, to order any person
or entity that diverts water or uses water to submit any
a technical or monitoring report related to the
diversion or use of water by that person or entity , if the
report is in that person's or entity's possession or
control, and would authorize the board to require specified persons
and entities to prepare and submit technical and monitoring reports
. The bill would authorize the board, in connection with the
investigation or proceeding , and with the consent of the owner
or possessor of the facilities or pursuant to a warrant , to
inspect the facilities of any person or entity to determine
compliance with specified water use requirements.
(3) Existing law declares that the diversion or use of water other
than as authorized by specified provisions of law is a trespass.
Existing law authorizes the administrative imposition of civil
liability by the board for a trespass in an amount not to exceed $500
for each day in which the trespass occurs. Moneys generated by the
imposition of civil liability under these provisions are deposited in
the Water Rights Fund.
This bill would provide that , for a first enforcement
proceeding, a person or entity committing a trespass may be
liable either in an amount not to exceed the sum of $1,000
or for each day in which the trespass
occurs, if the unauthorized diversion or use does not exceed 1,000
acre feet per day, or, if the unauthorized diversion or use exceeds
1,000 acre feet per day, in an amount not to exceed the sum of either
$1,000 for each day in which the trespass occurs or the highest
market value of the water, as specified, whichever is the greater
amount. For a subsequent enforcement proceeding, the bill
would provide that the person or entity committing the trespass may
be liable in an amount not to exceed either $5,000 for each day
in which the trespass occurs, as specified, or the highest market
value of the water, as specified, whichever is the greater amount.
The moneys would be required to be deposited in the Water Rights
Fund, as specified. The bill would establish the Water
Rights Protection Subaccount in the Water Rights Fund. Specified
penalties would be required to be deposited in the subaccount. The
bill would state legislative intent regarding the expenditure of the
moneys in the subaccount.
(4) Existing law, with certain exceptions, requires each person
who diverts water after December 31, 1965, to file with the 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.
This bill would establish a rebuttable presumption, as specified,
in any proceeding before the board in which it is alleged that a
right to appropriate water has ceased or is subject to prescribed
action, that no use required to be included in a statement of
diversion and use occurred unless that use is included in a statement
that is submitted to the board within a specified time period.
The bill would require certain statements submitted to the board,
that are canceled for nonpayment of fees, to be deemed
submitted for purposes of that presumption.
The bill would require a person who files a statement of diversion
and use, and certain petitions involving a change in a water right,
to pay an annual fee, for deposit in the Water Rights Fund. The bill
would include as recoverable costs, for which the board may be
reimbursed from the fund upon appropriation therefor, costs incurred
in connection with carrying out requirements relating to the
statements of diversion and use and the performance of duties under
provisions that require the reasonable use of water.
(5) Existing law authorizes the board to issue a cease and desist
order against a person who is violating, or threatening to violate,
certain requirements, including requirements set forth in a decision
or order relating to the unauthorized use of water. Any person who
violates a cease and desist order may be liable in an amount not to
exceed $1,000 for each day in which the violation occurs. Revenue
generated from these penalties is deposited in the Water Rights Fund.
This bill would increase, as specified, the civil penalties that
apply to a person who violates a cease and desist order. The bill
would impose civil liability, in an amount not to exceed $500 for
each day in which a violation occurs, for a failure to comply with
various reporting or monitoring requirements. The bill would
authorize the board to impose additional civil liability, in an
amount not to exceed $500 for each day in which a violation occurs,
for the violation of a permit, license, certificate, or registration,
or an order or regulation involving the unreasonable use of water.
The board would be required to establish a schedule of penalties that
applies to small farms for de minimus
minimis water right violations. Funds derived from the
imposition of these civil penalties would be deposited in the Water
Rights Fund, as specified.
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. Section 6103.1 of the Government Code is amended to
read:
6103.1. Section 6103 does not apply to any fee or charge for
official services required by Part 1 (commencing with Section 1000),
Part 2 (commencing with Section 1200), Part 3 (commencing with
Section 2000), Part 4 (commencing with Section 4000), Part 5
(commencing with Section 4999), or Part 5.1 (commencing with Section
5100), of Division 2, Division 7 (commencing with Section 13000), or
Division 35 (commencing with Section 85000) of the Water Code.
SEC. 2. Section 6103.4 of the Government Code is amended to read:
6103.4. Section 6103 does not apply to any fee or charge for
official services required by Section 100860
100860.1 of the Health and Safety Code.
SEC. 3. Section 1051.1 is added to the Water Code, to read:
1051.1. (a) (1) In conducting any investigation or proceeding
specified in Section 275 or 1051, or Article 7 (commencing with
Section 13550) of Chapter 7 of Division 7, the board may order any
person or entity that diverts or uses water to prepare and
submit to the board any technical or
monitoring program reports related to that person's or entity's
diversion or use of water as the board may specify.
, if the technical or monitoring program
reports are within that person's or entity's possession or control.
Except as provided in paragraph (2), the board shall not require a
person or entity to prepare any new report for purposes of this
section.
(2) The board may order a person or entity that diverts 200 or
more acre feet of water per year to prepare and submit technical or
monitoring program reports related to that person's or entity's
diversion or use of water, as the board may specify, for purposes of
paragraph (1). If the preparation of a technical or monitoring
program report would create a material financial hardship, the person
or entity may request the board to revise its order to avoid the
material financial hardship.
(2)
(3) The costs incurred by the person or entity in the
preparation of reports required pursuant to this subdivision shall
bear a reasonable relationship to the need for the report and the
benefit to be obtained from the report.
(3)
(4) If the preparation of individual reports would
result in a duplication of effort, or if the reports are necessary to
evaluate the cumulative effect of several diversions or uses of
water, the board may order any person or entity subject to this
subdivision to pay a reasonable share of the cost of preparing
reports.
(b) Any order issued under this section shall be served by
personal service or registered mail on the party required to submit
technical or monitoring program reports or to pay a share of the
costs of preparing reports. Unless the board issues the order after a
hearing, the order shall inform the party of the right to request a
hearing within 30 days after the party has been served. If the party
does not request a hearing within that 30-day period, the order shall
take effect as issued. If the party requests a hearing within that
30-day period, the board may adopt a decision and order after
conducting a hearing.
(c) Upon application of any person or entity or upon its own
motion, the board may review and revise any order requiring
technical or monitoring program reports issued
pursuant to this section, in accordance with the procedures set forth
in subdivision (b).
(d) In conducting any investigation or proceeding specified in
Section 275 or 1051, or Article 7 (commencing with Section 13550) of
Chapter 7 of Division 7, the board , with the consent of the
owner or possessor of the facilities or, if the consent is withheld,
with a warrant duly issued pursuant to the procedure set forth in
Title 13 (commencing with Section 1822.50) of Part 3 of the Code of
Civil Procedure, may inspect the facilities of any person or
entity to ascertain whether the purposes of Section 100 and this
division are being met and to ascertain compliance with any permit,
license, certification, registration, decision, order, or regulation
issued under Section 275, this division, or Article 7 (commencing
with Section 13550) of Chapter 7 of Division 7. The board shall adopt
regulations for procedures pursuant to Article 13 (commencing with
Section 11460.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of the Government Code, and any time extensions necessary to
implement those regulations. Except in the event of an
emergency affecting the public health or safety, the inspection shall
be made with the consent of the owner or possessor of the facilities
or, if the consent is withheld, with a warrant duly issued pursuant
to the procedure set forth in Title 13 (commencing with Section
1822.50) of Part 3 of the Code of Civil Procedure.
SEC. 4. Section 1052 of the Water Code is amended to read:
1052. (a) The diversion or use of water subject to this division
other than as authorized in this division is a trespass.
(b) The Attorney General, upon request of the board, shall
institute in the superior court in and for any county in which the
diversion or use is threatened, is occurring, or has occurred an
action for the issuance of injunctive relief as may be warranted by
way of temporary restraining order, preliminary injunction, or
permanent injunction.
(c) (1) Any person or entity committing a trespass as defined in
this section may be liable in an amount not to exceed the
greater of either of the following amounts:
(A) One thousand dollars ($1,000) for each day in which the
trespass occurs for the first enforcement proceeding or five thousand
dollars ($5,000) for each day in which the trespass occurs for any
subsequent enforcement proceeding.
(A) For a first enforcement proceeding, if the unauthorized
diversion or use of water does not exceed 1,000 acre feet per day on
any day in which the trespass occurs, one thousand dollars ($1,000)
for each day in which the trespass occurs.
(B) For a first enforcement proceeding, if the unauthorized
diversion or use of water exceeds 1,000 acre feet per day on any day
in which the trespass occurs, the greater of either of the following
amounts:
(i) One thousand dollars ($1,000) for each day in which the
trespass occurs.
(ii) The highest market value of the water subject to the trespass
as determined pursuant to Section 1052.5.
(C) For any subsequent enforcement proceeding, the greater of
either of the following amounts:
(i) Five thousand dollars ($5,000) for each day in which the
trespass occurs.
(B)
(ii) The highest market value of the water subject to
the trespass as determined pursuant to Section 1052.5.
(2) The Attorney General, upon request of the board, shall
petition the superior court to impose, assess, and recover any sums
pursuant to this subdivision. In determining the appropriate amount,
the court shall take into consideration all relevant circumstances,
including, but not limited to, the extent of harm caused by the
violation, the nature and persistence of the violation, the length of
time over which the violation occurs, and, with respect to the
violator, the ability to pay, the effect on the ability to continue
in business, the corrective action, if any, taken by the violator,
and other matters as justice may require.
(3) Civil liability may be imposed by the board pursuant to
Section 1055.
(d) (1) All funds recovered
pursuant to this section shall be deposited in the Water Rights Fund
established pursuant to Section 1550.
(2) Any funds recovered pursuant to this section that exceed the
amounts that were authorized before January 1, 2011, shall be
deposited in the Water Rights Protection Subaccount in the Water
Rights Fund established pursuant to Section 1550.
(e) The remedies prescribed in this section are cumulative and not
alternative.
(f) The increase in the amount of penalties that may be imposed
pursuant to the amendments made to this section by Senate Bill 565 of
the 2009-10 Regular Session of the Legislature does not apply to
violations that occurred prior to January 1, 2011.
SEC. 5. Section 1052.5 is added to the Water Code, to read:
1052.5. In establishing the highest market value of water for
purposes of Sections 1052 and 1845, the board shall consider
the price of water transferred price, per acre foot,
of water transferred or exchanged within the watershed where
the trespass occurred during a period of one year immediately
preceding the first day on which the trespass occurred, or, if there
has been no transfer or exchange of water within the
watershed during that period, the board shall consider the
price of water transferred price, per acre foot, of
water transferred or exchanged within the watershed in the most
recent year in which there has been a transfer or exchange
. Board consideration shall include only transfers of one
year or less in duration. For purposes of this
section, the board shall consider only the price, per acre foot, of
water or water rights transferred or exchanged for a period of one
year or less. The one-year period shall not include any time required
for monitoring, reporting, or mitigation before or after the
transfer or exchange is made.
SEC. 6. Section 1055 of the Water Code is amended to read:
1055. (a) The executive director of the board may issue a
complaint to any person or entity on which administrative civil
liability may be imposed pursuant to Section 1052, Article 4
(commencing with Section 1845) of Chapter 12 of Part 2 of Division 2,
or Section 5107. The complaint shall allege the act or failure to
act that constitutes a trespass or violation, the provision of law
authorizing civil liability to be imposed, and the proposed civil
liability.
(b) The complaint shall be served by personal notice or certified
mail, and shall inform the party served that the party may request a
hearing not later than 20 days from the date the party was served.
The hearing shall be before the board or a member of the board in
accordance with Section 183.
(c) The board may adopt an order setting administrative civil
liability, or determining that no liability will be imposed, after
any necessary hearing.
(d) Orders setting administrative civil liability shall become
effective and final upon issuance thereof and payment shall be made.
SEC. 7. Section 1055.2 of the Water Code is amended to read:
1055.2. A person or entity shall not be subject to both civil
liability imposed under Section 1055 and civil liability imposed by
the superior court under Section 1052, 1845, or 1846 for the same act
or failure to act.
SEC. 8. Section 1055.3 of the Water Code is amended to read:
1055.3. In determining the amount of civil liability, the board
shall take into consideration all relevant circumstances, including,
but not limited to, the extent of harm caused by the violation, the
nature and persistence of the violation, the length of time over
which the violation occurs, and with respect to the violator, the
ability to pay, the effect on the ability to continue in business,
the corrective action, if any, taken by the violator, and other
matters as justice may require.
SEC. 9. Section 1120 of the Water Code is amended to read:
1120. This chapter applies to any decision or order issued under
this part or Section 275, Part 2 (commencing with Section 1200), Part
2 (commencing with Section 10500) of Division 6, Article 7
(commencing with Section 13550) of Chapter 7 of Division 7, Section
85230, or the public trust doctrine.
SEC. 10. Section 1228.5 of the Water Code is amended to read:
1228.5. (a) Registration of a small domestic or livestock
stockpond use pursuant to this article shall be renewed prior to the
expiration of each five-year period following completed registration.
(b) Renewal of registration shall be made upon a form prescribed
by the board and shall contain a report of water use made pursuant to
the registration as may be required by the board.
(c) The conditions established by the board pursuant to Section
1228.6 that are in effect at the time of renewal of registration
shall supersede the conditions that were applicable to the original
completed registration.
(d) Failure to renew registration in substantial compliance with
the reporting requirements prescribed by the board within the time
period specified in subdivision (a), or to pay the renewal fee
specified in subdivision (b) of Section 1525, shall result by
operation of law in the revocation of any right acquired pursuant to
this article.
SEC. 11. Section 1228.7 of the Water Code is amended to read:
1228.7. (a) Any registrant may change the point of diversion or
place of use by delivering to the board an amended registration form
in accordance with Section 1228.3, including payment of the
registration fee specified in Section 1525, except that the purpose
of the use may not be changed and the change may not operate to the
injury of any legal user of the water involved.
(b) Any completed amended registration of water use continues in
effect the priority of right as of the date of the original completed
registration.
(c) All provisions of this article regarding appropriations made
pursuant thereto, including, but not limited to, provisions regarding
enforcement, are applicable to the appropriation as described in the
completed amended registration, except that the conditions
established by the board pursuant to Section 1228.6 which are in
effect at the time of completion of the amended registration shall
supersede the conditions which were applicable to the original
completed registration.
SEC. 12. Section 1525 of the Water Code is amended to read:
1525. (a) Each person or entity who holds a permit or license to
appropriate water, and each lessor of water leased under Chapter 1.5
(commencing with Section 1020) of Part 1, shall pay an annual fee
according to a fee schedule established by the board.
(b) Each person or entity who files any of the following shall pay
a fee according to a fee schedule established by the board:
(1) An application for a permit to appropriate water.
(2) A registration of appropriation for a small domestic use or
livestock stockpond use.
(3) A petition for an extension of time within which to begin
construction, to complete construction, or to apply the water to full
beneficial use under a permit.
(4) A petition to change the point of diversion, place of use, or
purpose of use, under a registration for small domestic use or
livestock stockpond use, or under a permit or license.
(5) A petition to change the conditions of a permit or license,
requested by the permittee or licensee, that is not otherwise subject
to paragraph (3) or (4).
(6) A petition under Section 1707 or 1740 to change the point of
diversion, place of use, or purpose of use of a water right that is
not subject to a permit or license to appropriate water.
(7) A petition to change the point of discharge, place of use, or
purpose of use, of treated wastewater, requested pursuant to Section
1211.
(8) An application for approval of a water lease agreement.
(9) A request for release from priority pursuant to Section 10504.
(10) An application for an assignment of a state-filed application
pursuant to Section 10504.
(11) A statement of water diversion and use pursuant to Part 5.1
(commencing with Section 5100).
(c) The board shall set the fee schedule authorized by this
section so that the total amount of fees collected pursuant to this
section equals that amount necessary to recover costs incurred in
connection with the issuance, administration, review, monitoring, and
enforcement of permits, licenses, certificates, and registrations to
appropriate water, water leases, statements of diversion and use,
and orders approving changes in point of discharge, place of use, or
purpose of use of treated wastewater. The board may include, as
recoverable costs, but is not limited to including, the costs
incurred in reviewing applications, registrations, statements of
diversion and use, petitions and requests, prescribing terms of
permits, licenses, registrations, and change orders, enforcing and
evaluating compliance with permits, licenses, certificates,
registrations, change orders, and water leases, inspection,
monitoring, planning, modeling, reviewing documents prepared for the
purpose of regulating the diversion and use of water, applying and
enforcing Section 275, the prohibition set forth in Section 1052
against the unauthorized diversion or use of water subject to this
division, the requirements under Part 5.1 (commencing with Section
5100) for filing statements of diversion and use, and the
administrative costs incurred in connection with carrying out these
actions.
(d) (1) The board shall adopt the schedule of fees authorized
under this section as emergency regulations in accordance with
Section 1530.
(2) For filings subject to subdivision (b), the schedule may
provide for a single filing fee or for an initial filing fee followed
by an annual fee, as appropriate to the type of filing involved, and
may include supplemental fees for filings that have already been
made but have not yet been acted upon by the board at the time the
schedule of fees takes effect.
(3) The board shall set the amount of total revenue collected each
year through the fees authorized by this section at an amount equal
to the revenue levels set forth in the annual Budget Act for this
activity. The board shall review and revise the fees each fiscal year
as necessary to conform with the revenue levels set forth in the
annual Budget Act. If the board determines that the revenue collected
during the preceding year was greater than, or less than, the
revenue levels set forth in the annual Budget Act, the board may
further adjust the annual fees to compensate for the over or under
collection of revenue.
(e) Annual fees imposed pursuant to this section for the 2003-04
fiscal year shall be assessed for the entire 2003-04 fiscal year.
(f) Fees imposed on holders of riparian water rights or rights to
water appropriated prior to December 19, 1914, pursuant to this
chapter shall bear a fair or reasonable relationship to the payor's
burden on, or benefits from, the board's water rights program funded
by those fees.
SEC. 13. Section 1535 of the Water Code is amended to read:
1535. (a) Any fee subject to this chapter that is required in
connection with the filing of an application, registration, request,
statement, or proof of claim, other than an annual fee required after
the period covered by the initial filing fee, shall be paid to the
board.
(b) If a fee established under subdivision (b) of Section 1525,
Section 1528, or Section 13160.1 is not paid when due, the board may
cancel the application, registration, petition, request, statement,
or claim, or may refer the matter to the State Board of Equalization
for collection of the unpaid fee.
SEC. 14. Section 1538 of the Water Code is amended to read:
1538. (a) In any proceeding pursuant to Section 1052 in which it
is determined that there has been a violation of the prohibition
against the unauthorized diversion or use of water subject to this
division, the board or court, as the case may be, may impose an
additional liability in the amount of 150 percent of any annual fees
that would have been required under this division if the diversion or
use had been authorized by a permit or license to appropriate water.
(b) In any proceeding pursuant to Section 5107 in which the board
imposes liability for a failure to file a statement of diversion and
use or for a material misstatement in a statement of diversion and
use, the board may impose an additional liability in the amount of
150 percent of any fees that have not been paid but would have been
required under this division if the statement of diversion and use
had been filed and did not make any material misstatement.
(c) The additional liability imposed under this section may
include interest, at the rate provided under Section 685.010 of the
Code of Civil Procedure, from the dates the annual fees would have
been assessed.
SEC. 15. Section 1550 of the Water Code is
amended to read:
1550. (a) There is in the State Treasury a Water Rights Fund,
which is hereby established.
(b) There is hereby established the Water Rights Protection
Subaccount in the Water Rights Fund. It is the intent of the
Legislature that the moneys in the Water Rights Protection Subaccount
be available for expenditure, upon appropriation by the Legislature,
to reduce fees on water right holders, for water restoration
projects, and conservancies.
SEC. 16. SEC. 15. Section 1551 of
the Water Code is amended to read:
1551. All of the following shall be deposited in the Water Rights
Fund:
(a) All fees, expenses, and penalties collected by the board or
the State Board of Equalization under this chapter and Part 3
(commencing with Section 2000).
(b) All funds collected under Section 1052, Article 4 (commencing
with Section 1845) of Chapter 12, and Section 5107.
(c) All fees collected under Section 13160.1 in connection with
certificates for activities involving hydroelectric power projects
subject to licensing by the Federal Energy Regulatory Commission.
SEC. 17. SEC. 16. Section 1825 of
the Water Code is amended to read:
1825. It is the intent of the Legislature that the state should
take vigorous action to enforce the terms and conditions of permits,
licenses, certifications, and registrations to appropriate water, to
enforce state board orders and decisions, to prevent the unlawful
diversion of water, and to prevent the waste, unreasonable use,
unreasonable method of use, or unreasonable method of diversion, of
water, and to enforce reporting and monitoring requirements.
SEC. 18. SEC. 17. Section 1826 is
added to the Water Code, to read:
1826. The board shall establish a schedule of penalties that
applies to small farms for de minimis water right violations under
this division.
SEC. 19. SEC. 18. Section 1845 of
the Water Code is amended to read:
1845. (a) Upon the failure of any person to comply with a cease
and desist order issued by the board pursuant to this chapter, the
Attorney General, upon the request of the board, shall petition the
superior court for the issuance of prohibitory or mandatory
injunctive relief as appropriate, including a temporary restraining
order, preliminary injunction, or permanent injunction.
(b) (1) Any person or entity who violates a cease and desist order
issued pursuant to this chapter may be liable in an amount not to
exceed the greater of either of the following
amounts:
(A) One thousand dollars ($1,000) for each day in which the
violation occurs for the first enforcement proceeding or five
thousand dollars ($5,000) for each day in which the violation occurs
for any subsequent enforcement proceeding.
(A) For a first enforcement proceeding, if the violation of a
cease and desist order does not involve an unauthorized diversion or
use of water exceeding 1,000 acre feet per day on any day in which
the violation occurs, one thousand dollars ($1,000) for each day in
which the violation occurs.
(B) For a first enforcement proceeding, if the violation of a
cease and desist order involves an unauthorized diversion or use of
water exceeding 1,000 acre feet per day on any day in which the
violation occurs, the greater of either of the following amounts:
(i) One thousand dollars ($1,000) for each day in which the
violation occurs.
(ii) The highest market value of the water subject to the
violation as determined pursuant to Section 1052.5.
(C) For any subsequent enforcement proceeding, the greater of
either of the following amounts:
(i) Five thousand dollars ($5,000) for each day in which the
violation occurs.
(B)
(ii) The highest market value of the water subject
to the violation as determined pursuant to Section 1052.5.
(2) Civil liability may be imposed by the superior court. The
Attorney General, upon the request of the board, shall petition the
superior court to impose, assess, and recover those sums.
(3) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(c) In determining the appropriate amount, the court, or the
board, as the case may be, shall take into consideration all relevant
circumstances, including, but not limited to, the extent of harm
caused by the violation, the nature and persistence of the violation,
the length of time over which the violation occurs, and, with
respect to the violator, the ability to pay, the effect on the
ability to continue in business, the corrective action, if any, taken
by the violator, and other matters as justice may require.
(d) (1) All funds recovered
pursuant to this section shall be deposited in the Water Rights Fund
established pursuant to Section 1550.
(2) Any funds recovered pursuant to this section that exceed the
amounts that were authorized before January 1, 2011, shall be
deposited in the Water Rights Protection Subaccount in the Water
Rights Fund established pursuant to Section 1550.
(e) The increase in the amount of penalties that may be imposed
pursuant to the amendments made to this section by Senate Bill 565 of
the 2009-10 Regular Session of the Legislature does not apply to
violations that occurred prior to January 1, 2011.
SEC. 20. SEC. 19. Section 1846 is
added to the Water Code, to read:
1846. (a) Any person or entity subject to a monitoring or
reporting requirement specified in subdivision (f) who violates that
reporting or monitoring requirement, makes a material misstatement in
any record or report submitted under that
reporting or monitoring requirement, or tampers with
or renders inaccurate any monitoring device required under that
reporting or monitoring requirement shall be liable for a sum not to
exceed five hundred dollars ($500) for each day in which the
violation occurs.
(b) Civil liability may be imposed by the superior court. The
Attorney General, upon the request of the board, shall petition the
superior court to impose, assess, and recover those sums.
(c) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(d) In determining the appropriate amount, the court, or the
board, as the case may be, shall take into consideration all relevant
circumstances, including, but not limited to, the extent of harm
caused by the violation, the nature and persistence of the violation,
the length of time over which the violation occurs, and, with
respect to the violator, the ability to pay, the effect on the
ability to continue in business, the corrective action, if any, taken
by the violator, and other matters as justice may require.
(e) All funds recovered pursuant to this section shall be
deposited in the Water Rights Protection Subaccount in the
Water Rights Fund established pursuant to Section 1550.
(f) (1) This section applies to any reporting or monitoring
requirement established under any permit, license, certificate,
registration, decision or order, or regulation issued by the board
pursuant to this division, Section 275, or Article 7 (commencing with
Section 13550) of Division 7.
(2) This section also applies to any reporting or monitoring
requirement established by the department under Section 275, if the
department requests enforcement pursuant to this section.
(3) This section does not provide a basis for imposing liability
on a watermaster who is subject to reporting or monitoring
requirements but does not divert or use the water subject to those
requirements.
SEC. 21. SEC. 20. Section 1847 is
added to the Water Code, to read:
1847. (a) Any person or entity who violates any term or condition
of a permit, license, certificate, or registration issued under this
division or any order or regulation adopted by the board under
Section 275 may be liable in an amount not to exceed five hundred
dollars ($500) for each day in which the violation occurs.
(b) Civil liability may be imposed by the superior court. The
Attorney General, upon the request of the board, shall petition the
superior court to impose, assess, and recover those sums.
(c) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(d) In determining the appropriate amount, the court, or the
board, as the case may be, shall take into consideration all relevant
circumstances, including, but not limited to, the extent of harm
caused by the violation, the nature and persistence of the violation,
the length of time over which the violation occurs, and, with
respect to the violator, the ability to pay, the effect on the
ability to continue in business, the corrective action, if any, taken
by the violator, and other matters as justice may require.
(e) No liability shall be recoverable under this section for any
violation for which liability is recovered under Section 1052 or
1846.
(f) All funds recovered pursuant to this section shall be
deposited in the Water Rights Protection Subaccount in the
Water Rights Fund established pursuant to Section 1550.
SEC. 22. SEC. 21. 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. 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 by a person who provides to the board
documentation demonstrating that the implementation of those
practices is not locally cost effective.
(2) (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, or its successor 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) The purpose of use.
(g) A general description of the area in which the water was 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.
(h) The year in which the diversion was commenced as near as is
known.
SEC. 23. SEC. 22. Section 5106 of
the Water Code is amended to read:
5106. (a) Neither the statements submitted under this part nor
the determination of facts by the board pursuant to Section 5105
shall establish or constitute evidence of a right to divert or use
water.
(b) (1) The board may rely on the names and addresses included in
statements submitted under this part for the purpose of determining
the names and addresses of persons who are to receive notices with
regard to proceedings before the board.
(2) Notwithstanding paragraph (1), any person may submit, in
writing, a request to the board to provide notification to a
different address, and the board shall provide the notification to
that address.
(3) If the board provides notice to persons who file statements
under this part, the notice shall not be determined to be inadequate
on the basis that notice was not received by a person, other than a
party to whom the board's action is directed, who fails to file a
statement required to be filed under this part.
(4) This subdivision does not affect the requirement in Section
2527 to provide notice to all persons who own land that appears to be
riparian to the stream system.
(c) In any proceeding before the board to determine whether an
application for a permit to appropriate water should be approved, any
statement submitted under this part or determination by the board
pursuant to Section 5105 is evidence of the facts stated therein.
(d) (1) In any proceeding before the board in which it is alleged
that a right to appropriate water has ceased or is subject to
forfeiture for nonuse, there shall be a rebuttable presumption that
no use required to be included in a statement submitted under this
part occurred unless that use is included in a statement submitted
under this part and that the statement is submitted within six months
after it is required to be filed with the board. For purposes
of this paragraph, a use that is included in a statement that is
canceled pursuant to subdivision (b) of Section 1535 shall be deemed
submitted.
(2) Paragraph (1) does not apply to any use that occurred before
January 1, 2010.