BILL ANALYSIS
SB 565
Page 1
Date of Hearing: June 29, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
SB 565 (Pavley) - As Proposed to Be Amended: June 29, 2010
SENATE VOTE : Not relevant
SUBJECT : Water diversions and uses: reporting, fees, and
illegal activities
SUMMARY : This bill provides increased consequences for failing
to report water diversions and uses and provides the State Water
Resources Control Board (SWRCB) with new authorities and
resources to investigate and prosecute unauthorized diversions
and uses. Specifically, this bill , as presented in the attached
mock-up version:
1) Allows the SWRCB to charge fees for services related to: water
rights; distributions of water in watermaster serviced areas;
statements of water diversion and use; water quality; and,
duties required pursuant to the Sacramento-San Joaquin Delta
Reform Act.
2) Gives the SWRCB new powers in investigations or proceedings
related to unreasonable use of water and violations of cease
and desist orders, cleanup and abatement orders, waste
discharges, and oil spills. These powers include the ability
to:
a. Request technical or monitoring program reports in a
person or entity's possession which are related to that
entity's diversion and use; or, for diversions or uses over
200 acre feet (af) annually, the ability to request
preparation of technical or monitoring reports related to
that entity's diversion and use.
b. Charge others a portion of the cost of the report if a
report covers several diversions.
c. Enter onto property and make inspections with the owner's
permission or by a duly obtained warrant.
3) Sets the maximum civil liability for unauthorized diversion or
use of water or failure to comply with a cease and desist
order issued by the SWRCB at:
a. $1,000 per day for a first enforcement proceeding where
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the unauthorized diversion or use of water does not exceed
1,000 af on any day of the unauthorized diversion or use.
b. The greater of $1,000 per day or the market value of the
water for an unauthorized diversion or use of water
exceeding 1,000 af on any day of the unauthorized diversion
or use.
c. The greater of $5,000 per day or the market value of the
water for additional enforcement proceedings.
4) Requires the market value of the water, for purposes of civil
liability, be set in accordance with the most recent value,
per af, of local short-term water transfers.
5) Conforms the SWRCB's hearing process for illegal diversions
and uses to the process for hearings and investigations under
the SWRCB's general authorities.
6) Ensures that parties are not subject to duplicative penalties
for the same act or failure to act.
7) Adds "ability to pay" and "effect on business" to the criteria
for determining the amount of civil liability.
8) Conforms the Delta Watermaster's SWRCB-delegated authority to
the existing process for reconsideration, amendment, and
judicial review of water right decisions and orders.
9) Adds the following uses to those required to pay annual fees:
small domestic uses, livestock stockpond registrations,
dedications of in-stream flow pursuant to Water Code Section
1707, rights determined under court decree; and statements of
diversion and use, including those for riparian rights and
appropriative rights established prior to 1914.
10)Adds "statements" to the list of actions for which failure to
pay a fee may result in cancellation of the right conveyed by
the statement or referral to State Board of Equalization for
collection of the fee.
11)For unauthorized diversions or uses, failures to file or
material misstatements on a statement of diversion or use,
allows the SWRCB or a court to impose a fine equal to 150% of
the annual fees an authorized diversion or use would have
paid.
12)Subjects waste and unreasonable use of water, unreasonable
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method of diversion, and enforcing monitoring requirements to
vigorous enforcement.
13)Requires the SWRCB to establish a schedule of penalties that
apply to small farms for de minimis water right violations.
14)Establishes higher penalties or new categories of penalties
for: failure to comply with a cease and desist order;
misstatements in monitoring requirements; and, violations of
any term or condition in a permit, license, certificate, or
registration or any order or regulation adopted by the SWRCB.
15)Allows the SWRCB or a superior court to establish a penalty,
not to exceed $500 per day, for:
a. Violations of a reporting or monitoring requirement,
material misstatements in any record or report, or tampering
with or rendering inaccurate any monitoring device required
under the reporting or monitoring requirement; and,
b. Violations of any term or condition of a permit, license,
certificate, or registration issued under Water Code
division 2, or any order or regulation adopted by the SWRCB
to prevent waste or unreasonable use of water.
Allows the court to take into account various factors,
including, but not limited to, the extent and nature of harm
and ability to pay, when determining the appropriate amount of
the penalty.
16)Where compliance with a Bay Delta Authority grant or loan is
conditioned on submitting monthly records of water
diversions, adds "successor to the Bay Delta Authority."
17)Adds a rebuttable presumption of nonuse - which could lead to
forfeiture of a water right - for failure to submit a
statement of water use. Clarifies that a diversion or use in
a statement which is submitted but canceled for failure to pay
a fee is still considered submitted and not subject to the
presumption.
EXISTING LAW :
1) 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
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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.
2) Establishes the Water Rights Fund and requires specified fees
and penalties collected by the SWRCB, or State Board of
Equalization on behalf of the SWRCB, to be deposited in the
Water Rights Fund.
3) Establishes that the unauthorized diversion or use of water is
a trespass.
4) Allows civil liability to be imposed for the unauthorized
diversion or use of water not to exceed $500 per day.
5) Allows the SWRCB, in determining the amount of civil
liability, to take into consideration all relevant
circumstances, including the extent of the harm of the
violation, the nature and persistence of the violation over
time, and any corrective action taken by the violator.
6) Requires the SWRCB to appoint, for a term of four years, a
Delta Watermaster to provide timely monitoring and enforcement
of SWRCB orders and license and permit terms and conditions in
the Sacramento-San Joaquin Delta.
7) Requires the registration of small domestic or livestock
stockponds and allows revocation of any right acquired by
registering to be the penalty for failing to renew a
registration in substantial compliance with the section
governing those registrations.
8) Allows the SWRCB to establish reasonable general conditions
for small domestic or livestock stockponds uses.
9) Requires an amended registration form for a change in the
point of diversion or place of use of water.
10)Requires each person or entity that holds a permit or license
to appropriate water to pay an annual fee according to a fee
schedule established by the SWRCB.
11)Allows that if a fee is not paid when due, the SWRCB may
cancel the application, registration, petition, request, or
claim and may refer the matter to the State Board of
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Equalization for collection of the unpaid fee.
12)For unauthorized diversions or uses, allows the SWRCB or a
court to impose an additional liability in an amount equal to
the annual fees had the diversion or use been authorized.
13)Makes it 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 SWRCB orders and decisions, and
to prevent the unlawful diversion of water.
14)Requires, with certain exceptions, that each person who
diverts water must file with the SWRCB a prescribed statement
of diversion and use. Requires a statement to include
specified information, including, on and after January 1,
2012, monthly records of water diversions. Conditions
eligibility for certain grants or loans on compliance with the
requirement for monthly records of water diversions, unless
subject to an enumerated exception.
15)Requires funds generated by specified civil penalties to be
deposited in the Water Rights Fund.
FISCAL EFFECT : Unknown
COMMENTS :
During its 2005-2006 Regular Session, the Legislature passed and
the Governor signed AB 1200 (Laird), AB 1803 (Assembly Budget
Committee), and SB 1574 (Kuehl). Together, these bills required
an assessment of the potential impacts on water supplies of
catastrophic failures in the Sacramento-San Joaquin Delta Estuary
(Delta), an identification and evaluation of options to protect
water supplies and the ecosystem of the Delta, the development of
a vision for a sustainable Delta, and a strategic plan to achieve
a sustainable Delta.
Specifically, SB 1574 directed the Resources Agency Secretary to
convene a committee to develop and submit to the legislature a
strategic vision for a sustainable Delta. On September 28, 2006,
Governor Schwarzenegger issued Executive Order S-17-06 which
incorporated the principles of AB 1200, AB 1803, and SB 1574,
including initiating the Delta Vision by requiring an independent
Blue Ribbon Task Force to submit to the Delta Vision Committee
and the Governor, by October 1, 2008, a strategic plan to
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implement the Delta Vision. Thereafter, the Executive Order
required the Delta Vision Committee, by December 31, 2008, to
make final recommendations to the Legislature and the Governor
for implementing the Delta Vision and Strategic Plan.
In 2008, during development of the Delta Vision, the SWRCB
explained to the Blue Ribbon Task Force that a lack of adequate
reporting information on water diversions and uses was limiting
the ability of the SWRCB to assess water availability and
determine where unauthorized diversions and uses were occurring.
Although, with certain exceptions, each person who diverts or
uses water must file a statement of use and diversion with the
SWRCB, there is no penalty for a riparian water user (one who
borders a water body and has a right to make reasonable use of
natural flow) or a "Pre-1914" water user (one whose appropriative
rights were grandfathered at the time of California's Water
Commission Act) to fail to file a statement of use. Reporting is
even spotty for post-1914 appropriative water rights holders over
whom the SWRCB has direct permitting and license authority. For
those water rights holders, the SWRCB estimated that only 68%
were submitting completed water use reports and that it was
difficult to verify the quality of the information except as part
of limited enforcement actions.
Also in 2008, the Delta Vision process received an analysis on
the "Economic Efficiency of Water Use and Allocation in
California." One focus of that report was on water rights
enforcement and found that "efficient enforcement requires that
penalties for non-compliance be sufficient to deter unauthorized
uses." As the report stated, if the value of the water exceeds
the cost of the fine divided by the chance of having to pay the
penalty, then an illegal water diverter may be tempted to make a
business decision to continue an unauthorized diversion or use.
The Delta Vision Committee Implementation Report (a.k.a. the
Chrisman Report), dated December 31, 2008, while not commenting
on this precise set of penalties and enforcement authorities,
called for legislation to enhance and expand the SWRCB's water
rights administrative accountability finding, "[t]hese
recommendations do not adversely affect the current water right
priority system, including area-of-origin priorities, but rather
strengthen the current administrative system." As the Chrisman
Report concluded, "appropriate enforcement will protect existing
water rights." After delivery of the Delta Vision
recommendations by the Delta Vision Blue Ribbon Task Force, the
Legislature began deliberations as to how to respond.
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SB 229 (Pavley), as amended July 9, 2009, sought to enact the
Delta Vision recommendations regarding water rights and water use
reporting. In August of 2009, SB 229 and four other bills
concerning key water and Delta issues - AB 39 (Huffman), AB 49
(Feuer), SB 12 (Simitian), and SB 458 (Wolk) - were introduced as
"pre-print" proposals for public review and discussion over the
summer recess. During August 2009, this Committee and Senate
Natural Resources and Water Committee held joint informational
hearings. After these hearings, legislative leadership appointed
a conference committee, which convened and held additional public
hearings, with legislator discussions of key issues. A
conference committee report was reported to the floors of the two
houses. Then, the policy provisions of that conference committee
report were consolidated into a single vehicle, SB 68
(Steinberg).
This bill is substantially similar to the provisions on water
rights enforcement contained in SB 68, which was heard and passed
by this committee on September 11, 2009. After the Legislature
adjourned without voting on SB 68, Governor Schwarzenegger called
a special session, the 7th Extraordinary Session, to finish
developing a water policy bill package to address pending Delta
and water issues. Up until the last week of the 7th
Extraordinary Session, provisions to expand the SWRCB's
enforcement toolbox, consistent with Senator Pavley's SB 229,
were a key part of the package.
Ultimately, the Legislature passed a 5-bill package which
included SBX7 1 (Simitian), SBX7 2 (Cogdill), SBX7 6 (Steinberg),
SBX7 7 (Steinberg), and SBX7 8 (Steinberg). SBX7 1 established a
new legal and policy framework for the State's management of the
Delta, including creating several new Delta governance entities
and a Delta Watermaster, while SBX7 8 included a narrower set of
SWRCB enforcement tools drawn mostly from another bill, AB 900
(De L?on). This bill addresses some of the critical remaining
Delta Vision recommendations on water rights and water use
reporting.
Supporters of this bill state that the "Blue Ribbon Delta Vision
Task Force found that information about current diversions and
use is inadequate and there is a need for better and more
comprehensive data." They quote the Delta Vision Strategic Plan
as stating, "The SWRCB will require secure annual funding for
additional positions to investigate water rights compliance,
illegal diversions, waste, and unreasonable use. The State
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Board's capacity should be expanded to be able to:
i. Require monitoring by all water diverters,
including those within the Delta who are currently not
required to report diversions;
ii. Authorize monetary penalties for monitoring and
reporting violations;
iii. Create adequate penalties for unauthorized diversions
and violations; and,
iv. Possess provisions for interim relief?"
Supporters state this bill is a reasonable and moderate piece of
much-needed legislation that would implement some, but not even
all, of the Delta Vision Task Force's very sensible
recommendations. They note it "will benefit the public and water
rights holders statewide by providing the SWRCB the tools it
needs to eliminate illegal diversions. These tools include
ensuring proper reporting of water diversion and use,
establishment of reporting incentives, and increases in fines for
illegal diversions." They conclude that at "a time when
conflicts about water are escalating and the state and water
agencies are making substantial investments in water
conservation, it is essential that we take reasonable steps to
ensure that illegal diversions of water are not tolerated."
This bill also addresses points that were raised in the economic
analysis report to Delta Vision which found that low penalties
may, in some cases, incentivize illegal behavior. This bill
raises the enforcement penalties for unauthorized diversions and
uses and, in the case of large unauthorized diversions (1,000 af
or over) or repeat offenders, makes the potential maximum penalty
equal to the market value, per acre foot, of the water which was
illegally diverted or used. As supporters remarked, "fines for
illegal activity established by current law have not been changed
since 1991 and do not serve as a disincentive since the value of
water illegally diverted is often substantially greater." In
addition, by requiring all diverters to report their use and pay
reasonable fees, this bill also addresses arguments that while
38% of California's water is diverted and used by riparians,
pre-1914 water users, and others not subject to direct SWRCB
permitting authority, those users are not paying a fair share of
monitoring and enforcement.
Opponents to this bill feel it would add sweeping new authority
to inspect private property for vaguely defined purposes and
without clear boundaries and require water users to perform
expensive engineering reports and technical monitoring studies.
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In addition, opponents were concerned that penalties for
unauthorized diversions and uses of water could be calculated on
the highest market value of the water. Opponents were also
concerned about the increased scope of new fee provisions, the
amount of fees, increased reporting requirements, and the
potential for forfeiture of water rights for failure to pay
fees. In addition, opponents did not feel it was appropriate to
place water diversion and use fees and penalties in a subaccount
of the Water Rights Fund which could be allocated to restoration
projects and conservancies.
In response to opponents' concerns, the attached proposed
Committee Amendments to this bill:
Limit SWRCB authority to request technical and monitoring study
reports to those reports already in the possession or control
of the entity diverting or using water unless that entity's
diversion or use is over 200 af annually. If an entity is
diverting or using more than 200 af annually, the SWRCB can
request preparation of technical or monitoring study reports.
The 200 af threshold was chosen because the Water Code defines
a minor water right application as direct diversion of 3
cubic-feet per second or less or storage of 200 af per year or
less. In addition, the SWRCB states 70% of the water rights
are issued for 100 af per year or less.
Clarify that the only notices and orders the SWRCB may change
on its own motion are notices and orders relating to
requirements for technical or monitoring program reports.
Clarify that property inspections may only be conducted with
the landowner's permission or a duly obtained warrant.
Establish that penalties based on the market value of water
only apply to repeat enforcement actions or unauthorized
diversions or uses which equaled or exceeded 1,000 af or
greater on any given day of the unauthorized diversion or use.
Eliminate language creating a subaccount in the Water Rights
Fund that could allocate funding to restoration projects and
conservancies.
Clarify that a statement of diversion or use that is submitted
but canceled is still deemed submitted and therefore will not
trigger the rebuttable presumption of nonuse which attaches
when no statement is submitted.
REGISTERED SUPPORT / OPPOSITION :
Support
Calif. League of Conservation Voters
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Clean Water Action
Defenders of Wildlife
East Bay Municipal Utility District
Environmental Defense Fund
Golden Gate Fishermen's Associations
Natural Resources Defense Council
Pacific Coast Federation of Fishermen's Associations
Planning and Conservation League
Sierra Club California
The Bay Institute
Water4Fish
Opposition
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Agricultural Council of California
Association of California Water Agencies
Calif. Assoc. of Nurseries and Garden Centers
Calif. Association of Wheat Growers
Calif. Bean Shippers Association
Calif. Building Industry Association
Calif. Cattlemen's Association
Calif. Chamber of Commerce
Calif. Citrus Mutual
Calif. Cotton Growers and Ginners Association
Calif. Farm Bureau Federation
Calif. Grain and Feed
Calif. Grape and Tree Fruit League
Calif. Municipal Utilities Association
Calif. Pear Growers
Calif. Rice Industry Association
Calif. Seed Association
Calif. State Flower Association
Calif. Tomato Growers Association
Calif. Warehouse Association
City of Sacramento (unless amended)
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Friant Water Authority
Glenn Colusa Irrigation District
Henry Miller Reclamation District
Imperial Irrigation District
Kern County Water Agency
Kings River Conservation District
Modesto Irrigation District
Nisei Farmer's League
Northern California Water Association
Pacific Egg and Poultry Association
Pacific Gas and Electric Company
Regional Council of Rural Counties
Sacramento Regional Water Alliance
San Juan Water District
Solano County Water Agency
Valley Ag Water Coalition
Western Agricultural Processors Association
Western Growers
Western Pistachio Association
Wine Institute
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Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096
SB 565
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AS PROPOSED TO BE AMENDED
BY THE COMMITTEE
--- AMENDMENTS ARE BOLD ---
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
SENATE BILL
No. 565
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, 1240.5, 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
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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
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SB 565 - 2 -
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 technical or
monitoring report
related to the diversion or use of water by that
person or entity in that person or entities
possession or, for diversions or uses over 200
acre-feet annually, the board may order
preparation of technical or monitoring reports.
The bill would authorize the board, in
connection with the investigation or proceeding,
to inspect the facilities of any person or
entity to determine compliance with specified
water use requirements either with that person
or entities permission or with a duly obtained
warrant.
(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
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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 a person or entity
committing a trespass
may be liable in an amount not to exceed the sum of $1,000
or $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
an
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SB 565
appropriative right 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 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 the public
trust doctrine
and 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
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a violation occurs, for a failure to comply with various
reporting or
monitoring requirements , including requirements imposed
pursuant to
the public trust doctrine . 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 water
right violations. Funds derived from the imposition of
these civil
penalties would be deposited in the Water Rights Fund, as
specified.
The bill would establish, in a proceeding before the
board in which
it is alleged that an appropriative water right has ceased,
or is subject
to prescribed action, a rebuttable presumption that no use
occurred on
or after January 1, 2010, unless that diversion or use was
included in a
specified statement submitted to the board within 6 months
after the
statement is required to be filed with the board, as
specified.
Vote: majority. Appropriation: no. Fiscal
committee: yes.
State-mandated local program: no.
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SB 565 - 4 -
The people of the State of California do enact as
follows:
1 SECTION 1. Section 6103.1 of the Government
Code is
2 amended to read:
3 6103.1. Section 6103 does not apply to any fee
or charge for
4 official services required by Part 1 (commencing with
Section
5 1000), Part 2 (commencing with Section 1200), Part 3
6 (commencing with Section 2000), Part 4 (commencing
with Section
7 4000), Part 5 (commencing with Section 4999), or Part
5.1
8 (commencing with Section 5100), of Division 2,
Division 7
9 (commencing with Section 13000), or Division 35
(commencing
10 with Section 85000) of the Water Code.
11 SEC. 2. Section 6103.4 of the Government Code
is amended
12 to read:
13 6103.4. Section 6103 does not apply to any fee
or charge for
14 official services required by Section 100860 100860.1
of the Health and
15 Safety Code.
16 SEC. 3. Section 1051.1 is added to the Water
Code, to read:
17 1051.1. (a) (1) In conducting any
investigation or proceeding
18 specified in Section 275 or 1051, or Article 7
(commencing with
19 Section 13550) of Chapter 7 of Division 7,
the board may order
20 any person or entity that diverts or uses
water to prepare and submit
21 to the board any technical or monitoring program
reports related
22 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
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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 and use of
water as the board may specify, for purposes
of paragraph (1). If the preparation of such
technical or monitoring program reports would
create a material financial hardship, the
person or entity may request that the board
revise its order to avoid such material
financial hardship.
23 The
24 (3) (2) The costs incurred by the person or entity
in the preparation
25 of those reports reports required pursuant to this
subdivision shall
26 bear a reasonable relationship to the need for the
report and the
27 benefit to be obtained from the report. If
28 (4) (3) If the preparation of individual reports
would result in a
29 duplication of effort, or if the reports are
necessary to evaluate the
30 cumulative effect of several diversions or uses of
water, the board
31 may order any person or entity subject to this
subdivision to pay
32 a reasonable share of the cost of preparing reports.
33 (b) Any order issued under this section shall be
served by
34 personal service or registered mail on the party
required to submit
35 technical or monitoring program reports or to pay a
share of the
36 costs of preparing reports. Unless the board issues
the order after
37 a hearing, the order shall inform the party of the
right to request a
38 hearing within 30 days after the party has been
served. If the party
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SB 565
1 does not request a hearing within that
30-day period, the order
2 shall take effect as issued. If the party
requests a hearing within
3 that 30-day period, the board may adopt a
decision and order after
4 conducting a hearing.
5 (c) Upon application of any person or
entity or upon its own
6 motion, the board may review and revise
any order requiring technical or monitoring
program reports issued pursuant
7 to this section, in accordance with the
procedures set forth in
8 subdivision (b).
9 (d) In conducting any investigation
or proceeding specified in
10 Section 275 or 1051, or Article 7
(commencing with Section
11 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
12 facilities of any person or entity to
ascertain whether the purposes
13 of Section 100 and this division are being
met and to ascertain
14 compliance with any permit, license, certification,
registration,
15 decision, order, or regulation issued under Section
275, this
16 division, or Article 7 (commencing with Section
13550) of Chapter
17 7 of Division 7. The board shall adopt regulations
for procedures
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18 pursuant to Article 13 (commencing with Section
11460.10) of
19 Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government
20 Code, and any time extensions necessary to implement
those
21 regulations. Except in the event of an
emergency affecting the
22 public health or safety the inspection
shall be made with the
23 consent of the owner or possessor of the
facilities or, if the consent 24 is withheld,
with a warrant duly issued pursuant to the
procedure 25 set forth in Title 13 (commencing
with Section 1822.50) of Part
26 3 of the Code of Civil Procedure.
27 SEC. 4. Section 1052 of the Water
Code is amended to read:
28 1052. (a) The diversion or use of water subject
to this division
29 other than as authorized in this division is a
trespass.
30 (b) The Attorney General, upon request of the
board, shall
31 institute in the superior court in and for any county
in which the
32 diversion or use is threatened, is occurring, or has
occurred an
33 action for the issuance of injunctive relief as may
be warranted by
34 way of temporary restraining order, preliminary
injunction, or
35 permanent injunction.
36 (c) (1) Any person or entity committing a
trespass as defined
37 in this section may be liable in an amount not to
exceed the greater
38 of either of the following amounts:
39 (A) For a first enforcement proceeding
where the unauthorized diversion or use of
water does not exceed 1,000 acre feet per day
on any day, One one thousand dollars ($1,000)
for each day in which the
40 trespass occurs for the first enforcement
proceeding or five .
(B) For a first enforcement proceeding where
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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:
(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:
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1 (i) five Five thousand dollars ($5,000)
for each day in which the trespass occurs for any
subsequent enforcement proceeding .
3 (B) (ii) The highest market value of the water
subject to the trespass
4 as determined on a regional basis pursuant to
Section 1052.5.
5 (2) The Attorney General, upon request of the
board, shall
6 petition the superior court to impose, assess, and
recover any sums
7 pursuant to this subdivision. In determining the
appropriate amount,
8 the court shall take into consideration all relevant
circumstances,
9 including, but not limited to, the extent of harm
caused by the
10 violation, the nature and persistence of the
violation, the length of
11 time over which the violation occurs, and, with
respect to the
12 violator, the ability to pay, the effect on the
ability to continue in
13 business, the corrective action, if any, taken by the
violator, and
14 other matters as justice may require.
15 (3) Civil liability may be imposed by the board
pursuant to
16 Section 1055.
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17 (d) (1) All funds recovered pursuant to this
section shall be
18 deposited in the Water Rights Fund established
pursuant to Section
19 1550.
20 (2) Any funds recovered pursuant to this
section that exceed
21 the amounts that were authorized before
January 1, 2011, shall be
22 deposited in the Water Rights Protection
Subaccount in the Water
23 Rights Fund established pursuant to Section 1550.
24 (e) The remedies prescribed in this section are
cumulative and
25 not alternative.
26 (f) The increase in the amount of penalties that
may be imposed
27 pursuant to the amendments made to this section by
this act during
28 Senate Bill 565 of the 2009?10 Regular Session of the
Legislature
29 does not apply to violations that occurred prior to
January 1, 2011.
30 SEC. 5. Section 1052.5 is added to the Water
Code, to read:
31 1052.5. In establishing the highest market
value of water for
32 purposes of Sections 1052 and 1845, the board shall
consider the
33 price, per acre foot, of water transferred or
exchanged within the watershed where the trespass
34 occurred during a period of one year immediately
preceding the
35 first day on which the trespass occurred, or, if
there has been no
36 transfer or exchange of water within the watershed
during that period, the
37 board shall consider the price per acre foot of water
transferred within the
38 watershed in the most recent year in which there has
been a
39 transfer or exchange. Board Consideration shall
include only transfers of one year or less in
duration. For the purposes of this section, the
board shall only consider the price per acre foot
of transfers or exchanges of water or water rights
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for a period of one year or less. The one-year
period does not include any time required for
monitoring, reporting, or mitigation before or
after the transfer or exchange is carried out.
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1 SEC. 5.
2 SEC. 6. Section 1055 of the Water Code is
amended to read:
3 1055. (a) The executive director of the board
may issue a
4 complaint to any person or entity on which
administrative civil
5 liability may be imposed pursuant to Section 1052,
Article 4
6 (commencing with Section 1845) of Chapter 12 of Part
2 of
7 Division 2, or Section 5107. The complaint shall
allege the act or
8 failure to act that constitutes a trespass or
violation, the provision
9 of law authorizing civil liability to be imposed, and
the proposed
10 civil liability.
11 (b) The complaint shall be served by personal
notice or certified
12 mail, and shall inform the party served that the
party may request
13 a hearing not later than 20 days from the date the
party was served.
14 The hearing shall be before the board or a member of
the board in
15 accordance with Section 183.
16 (c) The board may adopt an order setting
administrative civil
17 liability, or determining that no liability will be
imposed, after any
18 necessary hearing.
19 (d) Orders setting administrative civil liability
shall become
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20 effective and final upon issuance thereof and payment
shall be
21 made.
22 SEC. 6.
23 SEC. 7. Section 1055.2 of the Water Code is
amended to read:
24 1055.2. No person or entity shall A person or
entity shall not
25 be subject to both civil liability imposed under
Section 1055 and
26 civil liability imposed by the superior court under
Section 1052,
27 1845, or 1846 for the same act or failure to act.
28 SEC. 7.
29 SEC. 8. Section 1055.3 of the Water Code is
amended to read:
30 1055.3. In determining the amount of civil
liability, the board
31 shall take into consideration all relevant
circumstances, including,
32 but not limited to, the extent of harm caused by the
violation, the
33 nature and persistence of the violation, the length
of time over
34 which the violation occurs, and with respect to the
violator, the
35 ability to pay, the effect on the ability to continue
in business, the
36 corrective action, if any, taken by the violator, and
other matters
37 as justice may require.
38 SEC. 8.
39 SEC. 9. Section 1120 of the Water Code is
amended to read:
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1 1120. This chapter applies to any decision or
order issued under
2 this part or Section 275, Part 2 (commencing with
Section 1200),
3 Part 2 (commencing with Section 10500) of Division 6,
Article 7
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4 (commencing with Section 13550) of Chapter 7 of
Division 7,
5 Section 85230, or the public trust doctrine.
6 SEC. 9.
7 SEC. 10. Section 1228.5 of the Water Code is
amended to read:
8 1228.5. (a) Registration of a small domestic
or livestock
9 stockpond use pursuant to this article shall be
renewed prior to the
10 expiration of each five-year period following
completed
11 registration.
12 (b) Renewal of registration shall be made upon a
form prescribed
13 by the board and shall contain such a report of
water use made
14 pursuant to the registration as may be required by
the board.
15 (c) The conditions established by the board
pursuant to Section
16 1228.6 which that are in effect at the time of
renewal of registration
17 shall supersede the conditions which that were
applicable to the
18 original completed registration.
19 (d) Failure to renew registration in substantial
compliance with
20 the reporting requirements prescribed by the board
within the time
21 period specified in subdivision (a), or to pay the
renewal fee
22 specified in subdivision (b) of Section 1525, shall
result by
23 operation of law in the revocation of any right
acquired pursuant
24 to this article.
25 SEC. 10.
26 SEC. 11. Section 1228.7 of the Water Code is
amended to read:
27 1228.7. (a) Any registrant may change the point
of diversion
28 or place of use by delivering to the board an amended
registration
29 form in accordance with Section 1228.3, including
payment of the
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30 registration fee specified in Section 1525, except
that the purpose
31 of the use may not be changed and the change may not
operate to
32 the injury of any legal user of the water involved.
33 (b) Any completed amended registration of water
use continues
34 in effect the priority of right as of the date of the
original completed
35 registration.
36 (c) All provisions of this article regarding
appropriations made
37 pursuant thereto, including, but not limited to,
provisions regarding
38 enforcement, are applicable to the appropriation as
described in
39 the completed amended registration, except that the
conditions
40 established by the board pursuant to Section 1228.6
which are in
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1 effect at the time of completion of the amended
registration shall
2 supersede the conditions which were applicable to the
original
3 completed registration.
4 SEC. 11. Section 1240.5 is added to the Water
Code, to read:
5 1240.5. (a) In any proceeding before the board
in which it is
6 alleged that a right to appropriate water has ceased
or is subject to
7 forfeiture or revocation for nonuse, there shall be a
rebuttable
8 presumption that no use occurred unless that use is
included in a
9 statement submitted pursuant to any reporting or
monitoring
10 requirement established under any permit, license,
certificate,
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11 registration, decision or order, or regulation issued
by the board
12 pursuant to this division, Section 275,Article 7
(commencing with
13 Section 13550) of Division 7, or the public trust
doctrine under
14 this part, and the statement is submitted within six
months after it
15 is required to be filed with the board. This section
does not apply
16 to any diversion or use that occurred before January
1, 2010.
17 (b) The rebuttable presumption established in
subdivision (a)
18 applies only if the failure to file the statement is
shown to be
19 willful.
20 SEC. 12. Section 1525 of the Water Code is
amended to read:
21 1525. (a) Each person or entity who holds a
permit or license
22 to appropriate water, and each lessor of water leased
under Chapter
23 1.5 (commencing with Section 1020) of Part 1, shall
pay an annual
24 fee according to a fee schedule established by the
board.
25 (b) Each person or entity who files any of the
following shall
26 pay a fee according to a fee schedule established by
the board:
27 (1) An application for a permit to appropriate
water.
28 (2) A registration of appropriation for a small
domestic use or
29 livestock stockpond use.
30 (3) A petition for an extension of time within
which to begin
31 construction, to complete construction, or to apply
the water to
32 full beneficial use under a permit.
33 (4) A petition to change the point of diversion,
place of use, or
34 purpose of use, under a registration for small
domestic use or
35 livestock stockpond use, or under a permit or
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license.
36 (5) A petition to change the conditions of a
permit or license,
37 requested by the permittee or licensee, that is not
otherwise subject
38 to paragraph (3) or (4).
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SB 565 - 10 -
1 (6) A petition under Section 1707 or 1740 to
change the point
2 of diversion, place of use, or purpose of use of a
water right that
3 is not subject to a permit or license to appropriate
water.
4 (7) A petition to change the point of discharge,
place of use, or
5 purpose of use, of treated wastewater, requested
pursuant to Section
6 1211.
7 (8) An application for approval of a water lease
agreement.
8 (9) A request for release from priority pursuant
to Section 10504.
9 (10) An application for an assignment of a
state-filed application
10 pursuant to Section 10504.
11 (11) A statement of water diversion and use
pursuant to Part
12 5.1 (commencing with Section 5100).
13 (c) The board shall set the fee schedule
authorized by this section
14 so that the total amount of fees collected pursuant
to this section
15 equals that amount necessary to recover costs
incurred in
16 connection with the issuance, administration, review,
monitoring,
17 and enforcement of permits, licenses, certificates,
and registrations
18 to appropriate water, water leases, statements of
diversion and use,
19 and orders approving changes in point of discharge,
place of use,
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20 or purpose of use of treated wastewater. The board
may include,
21 as recoverable costs, but is not limited to
including, the costs
22 incurred in reviewing applications, registrations,
statements of
23 diversion and use, petitions and requests,
prescribing terms of
24 permits, licenses, registrations, and change orders,
enforcing and
25 evaluating compliance with permits, licenses,
certificates,
26 registrations, change orders, and water leases,
inspection,
27 monitoring, planning, modeling, reviewing documents
prepared
28 for the purpose of regulating the diversion and use
of water,
29 applying and enforcing the public trust doctrine,
Section 275, the
30 prohibition set forth in Section 1052 against the
unauthorized
31 diversion or use of water subject to this division,
the requirements
32 under Part 5.1 (commencing with Section 5100) for
filing
33 statements of diversion and use, and the
administrative costs
34 incurred in connection with carrying out these
actions.
35 (d) (1) The board shall adopt the schedule of
fees authorized
36 under this section as emergency regulations in
accordance with
37 Section 1530.
38 (2) For filings subject to subdivision (b), the
schedule may
39 provide for a single filing fee or for an initial
filing fee followed
40 by an annual fee, as appropriate to the type of
filing involved, and
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1 may include supplemental fees for filings that have
already been
2 made but have not yet been acted upon by the board at
the time
3 the schedule of fees takes effect.
4 (3) The board shall set the amount of total
revenue collected
5 each year through the fees authorized by this section
at an amount
6 equal to the revenue levels set forth in the annual
Budget Act for
7 this activity. The board shall review and revise the
fees each fiscal
8 year as necessary to conform with the revenue levels
set forth in
9 the annual Budget Act. If the board determines that
the revenue
10 collected during the preceding year was greater than,
or less than,
11 the revenue levels set forth in the annual Budget
Act, the board
12 may further adjust the annual fees to compensate for
the over or
13 under collection of revenue.
14 (e) Annual fees imposed pursuant to this section
for the 2003?04
15 fiscal year shall be assessed for the entire 2003?04
fiscal year.
16 (f) Fees imposed on holders of riparian water
rights or rights to
17 water appropriated prior to December 19, 1914,
pursuant to this
18 chapter shall bear a fair or reasonable relationship
to the payor's
19 burden on, or benefits from, the board's water rights
program
20 funded by those fees.
21 SEC. 13. Section 1535 of the Water Code is
amended to read:
22 1535. (a) Any fee subject to this chapter that
is required in
23 connection with the filing of an application,
registration, request,
24 statement, or proof of claim, other than an annual
fee required after
25 the period covered by the initial filing fee, shall
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be paid to the
26 board.
27 (b) If a fee established under subdivision (b) of
Section 1525,
28 Section 1528, or Section 13160.1 is not paid when
due, the board
29 may cancel the application, registration, petition,
request, statement,
30 or claim, or may refer the matter to the State Board
of Equalization
31 for collection of the unpaid fee.
32 SEC. 14. Section 1538 of the Water Code is
amended to read:
33 1538. (a) In any proceeding pursuant to Section
1052 in which
34 it is determined that there has been a violation of
the prohibition
35 against the unauthorized diversion or use of water
subject to this
36 division, the board or court, as the case may be, may
impose an
37 additional liability in the amount of 150 percent of
any annual fees
38 that would have been required under this division if
the diversion
39 or use had been authorized by a permit or license to
appropriate
40 water.
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1 (b) In any proceeding pursuant to Section 5107 in
which the
2 board imposes liability for a failure to file a
statement of diversion
3 and use or for a material misstatement in a statement
of diversion
4 and use, the board may impose an additional liability
in the amount
5 of 150 percent of any fees that have not been paid
but would have
6 been required under this division if the statement of
diversion and
7 use had been filed and did not make any material
misstatement.
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8 (c) The additional liability imposed under this
section may
9 include interest, at the rate provided under Section
685.010 of the
10 Code of Civil Procedure, from the dates the annual
fees would
11 have been assessed.
12 SEC 15. Section 1550 of the Water Code is
amended to read:
13 1550. (a) There is in the State Treasury a Water
Rights Fund,
14 which is hereby established.
15 (b) There is hereby established the Water Rights
Protection
16 Subaccount in the Water Rights Fund. It is the
intent of the
17 Legislature that the moneys in the Water Rights
Protection
18 Subaccount be available for expenditure, upon
appropriation by
19 the Legislature, to reduce fees on water rights
holders, for water
20 restoration projects, conservancies, and for General
Fund purposes.
21 and conservancies.
22 SEC. 16. 15. Section 1551 of the Water Code is
amended to read:
23 1551. All of the following shall be deposited
in the Water
24 Rights Fund:
25 (a) All fees, expenses, and penalties collected
by the board or
26 the State Board of Equalization under this chapter
and Part 3
27 (commencing with Section 2000).
28 (b) All funds collected under Section 1052,
Article 4
29 (commencing with Section 1845) of Chapter 12, and
Section 5107.
30 (c) All fees collected under Section 13160.1 in
connection with
31 certificates for activities involving hydroelectric
power projects
32 subject to licensing by the Federal Energy Regulatory
Commission.
33 SEC. 17. 16. Section 1825 of the Water Code is
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amended to read:
34 1825. It is the intent of the Legislature that
the state should
35 take vigorous action to enforce the terms and
conditions of permits,
36 licenses, certifications, and registrations to
appropriate water, to
37 enforce state board orders and decisions, to prevent
the unlawful
38 diversion of water, and to prevent the waste,
unreasonable use,
39 unreasonable method of use, or unreasonable method of
diversion,
40 of water, and to enforce reporting and monitoring
requirements.
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1 SEC. 18. 17. Section 1826 is added to the Water
Code, to read:
2 1826. The board shall establish a schedule of
penalties that
3 applies to small farms for de minimis water right
violations under
4 this division.
5 SEC. 19. 18. Section 1845 of the Water Code is
amended to read:
6 1845. (a) Upon the failure of any person to
comply with a
7 cease and desist order issued by the board pursuant
to this chapter,
8 the Attorney General, upon the request of the board,
shall petition
9 the superior court for the issuance of prohibitory or
mandatory
10 injunctive relief as appropriate, including a
temporary restraining
11 order, preliminary injunction, or permanent
injunction.
12 (b) (1) Any person or entity who violates a
cease and desist
13 order issued pursuant to this chapter may be liable
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in an amount
14 not to exceed the greater of either of the following
amounts :
15 (A) For a first enforcement proceeding
where the violation of a cease and desist
order does not involve an unauthorized
diversion or use of water exceeding 1,000 acre
feet, one thousand dollars ($1,000) for each
day in which the
16 violation occurs for the first enforcement
proceeding or five .
(B) For a first enforcement proceeding where
the violation of a cease and desist order
involves a 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:
(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:
17 (i) Five thousand dollars ($5,000) for
each day in which the violation
18 occurs for any subsequent enforcement
proceeding .
19 (ii) The highest market value of the
water subject to the violation as determined on a
20 regional basis pursuant to Section 1052.5.
21 (2) Civil liability may be imposed by the
superior court. The
22 Attorney General, upon the request of the board,
shall petition the
23 superior court to impose, assess, and recover those
sums.
24 (3) Civil liability may be imposed
administratively by the board
25 pursuant to Section 1055.
26 (c) In determining the appropriate amount, the
court, or the
27 board, as the case may be, shall take into
consideration all relevant
28 circumstances, including, but not limited to, the
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extent of harm
29 caused by the violation, the nature and persistence
of the violation,
30 the length of time over which the violation occurs,
and, with respect
31 to the violator, the ability to pay, the effect on
the ability to
32 continue in business, the corrective action, if any,
taken by the
33 violator, and other matters as justice may require.
34 (d) (1) All funds recovered pursuant to this
section shall be
35 deposited in the Water Rights Fund established
pursuant to Section
36 1550.
37 (2) Any funds recovered pursuant to this
section that exceed
38 the amounts that were authorized before
January 1, 2011, shall be 39 deposited in the
Water Rights Protection Subaccount in the Water 40
Rights Fund established pursuant to Section
1550.
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SB 565 - 14 -
1 (e) The increase in the amount of penalties that
may be imposed
2 pursuant to the amendments made to this section by
this act during
3 Senate Bill 565 of the 2009?10 Regular Session of the
Legislature
4 does not apply to violations that occurred prior to
January 1, 2011.
5 SEC. 20. 19. Section 1846 is added to the Water
Code, to read:
6 1846. (a) Any person or entity subject to a
monitoring or
7 reporting requirement specified in subdivision (f)
who violates
8 that reporting or monitoring requirement, makes a
material
9 misstatement in any record or report submitted under
that reporting
10 or monitoring requirement, or tampers with or renders
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inaccurate
11 any monitoring device required under that reporting
or monitoring
12 requirement shall be liable for a sum not to exceed
five hundred
13 dollars ($500) for each day in which the violation
occurs.
14 (b) Civil liability may be imposed by the
superior court. The
15 Attorney General, upon the request of the board,
shall petition the
16 superior court to impose, assess, and recover those
sums.
17 (c) Civil liability may be imposed
administratively by the board
18 pursuant to Section 1055.
19 (d) In determining the appropriate amount, the
court, or the
20 board, as the case may be, shall take into
consideration all relevant
21 circumstances, including, but not limited to, the
extent of harm
22 caused by the violation, the nature and persistence
of the violation,
23 the length of time over which the violation occurs,
and, with respect
24 to the violator, the ability to pay, the effect on
the ability to
25 continue in business, the corrective action, if any,
taken by the
26 violator, and other matters as justice may require.
27 (e) All funds recovered pursuant to this section
shall be
28 deposited in the Water Rights Protection Subaccount
in the Water
29 Rights Fund established pursuant to Section 1550.
30 (f) (1) This section applies to any reporting or
monitoring
31 requirement established under any permit, license,
certificate,
32 registration, decision or order, or regulation issued
by the board
33 pursuant to this division, Section 275, or Article 7
(commencing
34 with Section 13550) of Division 7 , or the public
trust doctrine .
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35 (2) This section also applies to any reporting or
monitoring
36 requirement established by the department under
Section 275, if
37 the department requests enforcement pursuant to this
section.
38 (3) This section does not provide a basis for
imposing liability
39 on a watermaster who is subject to reporting or
monitoring
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1 requirements but does not divert or use the water
subject to those
2 requirements.
3 SEC. 21. 20. Section 1847 is added to the Water
Code, to read:
4 1847. (a) Any person or entity who violates
any term or
5 condition of a permit, license, certificate, or
registration issued
6 under this division or any order or regulation
adopted by the board
7 under Section 275 may be liable in an amount not to
exceed five
8 hundred dollars ($500) for each day in which the
violation occurs.
9 (b) Civil liability may be imposed by the
superior court. The
10 Attorney General, upon the request of the board,
shall petition the
11 superior court to impose, assess, and recover those
sums.
12 (c) Civil liability may be imposed
administratively by the board
13 pursuant to Section 1055.
14 (d) In determining the appropriate amount, the
court, or the
15 board, as the case may be, shall take into
consideration all relevant
16 circumstances, including, but not limited to, the
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extent of harm
17 caused by the violation, the nature and persistence
of the violation,
18 the length of time over which the violation occurs,
and, with respect
19 to the violator, the ability to pay, the effect on
the ability to
20 continue in business, the corrective action, if any,
taken by the
21 violator, and other matters as justice may require.
22 (e) No liability shall be recoverable under this
section for any
23 violation for which liability is recovered under
Section 1052 or
24 1846.
25 (f) All funds recovered pursuant to this section
shall be deposited
26 in the Water Rights Protection Subaccount in the
Water Rights
27 Fund established pursuant to Section 1550.
28 SEC. 22. 21. Section 5103 of the Water Code , as
amended by
29 Section 5 of Chapter 2 of the Seventh Extraordinary
Session of
30 the Statutes of 2009, is amended to read:
31 5103. Each statement shall be prepared on a form
provided by
32 the board. The statement shall include all of the
following
33 information:
34 (a) The name and address of the person who
diverted water and
35 of the person filing the statement.
36 (b) The name of the stream or other source from
which water
37 was diverted, and the name of the next major stream
or other body
38 of water to which the source is tributary.
39 (c) The place of diversion. The location of the
diversion works
40 shall be depicted on a specific United States
Geological Survey
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1 topographic map, or shall be identified using the
California
2 Coordinate System, or latitude and longitude
measurements. If
3 assigned, the public land description to the nearest
40-acre
4 subdivision and the assessor's parcel number shall
also be provided.
5 (d) The capacity of the diversion works and of
the storage
6 reservoir, if any, and the months in which water was
used during
7 the preceding calendar year.
8 (e) (1) On and after January 1, 2012, monthly
records of water
9 diversions. The measurements of the diversion shall
be made using
10 best available technologies and best professional
practices. Nothing
11 in this paragraph shall be construed to require the
implementation
12 of technologies or practices by a person who provides
to the board
13 documentation demonstrating that the implementation
of those
14 practices is not locally cost effective.
15 (2) (A) The terms of, and eligibility for, any
grant or loan
16 awarded or administered by the department, the board,
or the
17 California Bay-Delta Authority, or its successor on
behalf of a
18 person that is subject to paragraph (1) shall be
conditioned on
19 compliance with that paragraph.
20 (B) Notwithstanding subparagraph (A), the board
may determine
21 that a person is eligible for a grant or loan even
though the person
22 is not complying with paragraph (1), if both of the
following apply:
23 (i) The board determines that the grant or loan
will assist the
24 grantee or loan recipient in complying with paragraph
(1).
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25 (ii) The person has submitted to the board a
one-year schedule
26 for complying with paragraph (1).
27 (C) It is the intent of the Legislature that the
requirements of
28 this subdivision shall complement and not affect the
scope of
29 authority granted to the board by provisions of law
other than this
30 article.
31 (f) The purpose of use.
32 (g) A general description of the area in which
the water was
33 used. The location of the place of use shall be
depicted on a specific
34 United States Geological Survey topographic map and
on any other
35 maps with identifiable landmarks. If assigned, the
public land
36 description to the nearest 40-acre subdivision and
the assessor's
37 parcel number shall also be provided.
38 (h) The year in which the diversion was commenced
as near as
39 is known.
40 SEC. 23. 22. Section 5106 of the Water Code is
amended to read:
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1 5106. (a) Neither the statements submitted
under this part nor
2 the determination of facts by the board pursuant to
Section 5105
3 shall establish or constitute evidence of a right to
divert or use
4 water.
5 (b) (1) The board may rely on the names and
addresses included
6 in statements submitted under this part for the
purpose of
7 determining the names and addresses of persons who
are to receive
8 notices with regard to proceedings before the board.
9 (2) Notwithstanding paragraph (1), any person may
submit, in
10 writing, a request to the board to provide
notification to a different
11 address, and the board shall provide the notification
to that address.
12 (3) If the board provides notice to persons who
file statements
13 under this part, the notice shall not be determined
to be inadequate
14 on the basis that notice was not received by a
person, other than a
15 party to whom the board's action is directed, who
fails to file a
16 statement required to be filed under this part.
17 (4) This subdivision does not affect the
requirement in Section
18 2527 to provide notice to all persons who own land
that appears
19 to be riparian to the stream system.
20 (c) In any proceeding before the board to
determine whether an
21 application for a permit to appropriate water should
be approved,
22 any statement submitted under this part or
determination by the
23 board pursuant to Section 5105 is evidence of the
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facts stated
24 therein.
25 (d) (1) In any proceeding before the board in
which it is alleged
26 that an appropriative right a right to appropriate
water has ceased
27 or is subject to forfeiture for nonuse because water
has not been
28 put to beneficial use , there shall be a rebuttable
presumption that
29 no use required to be included in a statement
submitted under this
30 part occurred unless that use is included in a
statement submitted
31 under this part and that the statement is submitted
within six
32 months after it is required to be filed with the
board. For the
purposes of this subsection, a use included in a
statement canceled
pursuant to Section1535(b) is still deemed
submitted.
33 (2) Paragraph (1) does not apply to any use that
occurred before
34 January 1, 2010.
35 (3) The rebuttable presumption established in
paragraph (1)
36 applies only if the failure to file the statement is
shown to be
37 willful.
O