BILL NUMBER: SB 665 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator La Malfa
FEBRUARY 18, 2011
An act relating to water. An act to amend
Sections 1600, 1602, 1605, 1610, 1615, and 2087 of the Fish and Game
Code, relating to water diversions.
LEGISLATIVE COUNSEL'S DIGEST
SB 665, as amended, La Malfa. Water: public trust
doctrine: groundwater. Lake and streambed alteration
agreements: endangered species.
(1) Existing law prohibits a person, a state or local governmental
agency, or a public utility from substantially diverting or
obstructing the natural flow of, or substantially changing or using
any material from the bed, channel, or bank of, any river, stream, or
lake, or depositing or disposing of debris, waste, or other material
containing crumbled, flaked, or ground pavement where it may pass
into any river, stream, or lake, unless prescribed requirements are
met, including written notification to the Department of Fish and
Game regarding the activity. Existing law requires the department to
determine whether the activity may substantially adversely affect an
existing fish and wildlife resource and, if so, to provide a draft
lake or streambed alteration agreement to the person, agency, or
utility. Existing law prescribes various requirements for lake and
streambed alteration agreements. Existing law also establishes
various exemptions, including exemptions for specified emergency work
and certain agreements relating to water supply, drainage, flood
control, or waste treatment and disposal facilities attained prior to
January 1, 1977, after the initial notification and agreement.
This bill would modify that prohibition to prohibit the
installation of a new diversion or means of diversion, or the
substantial alteration of an existing means of diversion, that will
substantially affect a river, stream, or lake as described above,
unless prescribed requirements are met.
The bill would delete that exemption for pre-1977 agreements, and,
instead exempt from the notice and agreement requirements, after the
initial notification and agreement, an activity that involves the
routine maintenance and operation of water supply, drainage, flood
control, or waste treatment and disposal facilities constructed and
in existence before 2000, unless the work has substantially changed
or conditions affecting fish and wildlife resources have
substantially changed, and those resources may be adversely affected
by the activity conducted under the agreement. The bill would require
the department to contact the entity performing the activity and
suggest alternative means of maintaining and operating the facilities
consistent with maintaining the full use and function of the
facilities and the full use of any water diverted or used by or
through those facilities. The bill would establish enforcement
procedures if no agreement is reached.
The bill would also exempt immediate emergency work necessary to
maintain the use of facilities employed and regularly used for the
diversion or discharge of water.
(2) The California Endangered Species Act, until January 1, 2014,
exempts from its provisions the accidental take of candidate,
threatened, or endangered species resulting from acts that occur on a
farm or a ranch in the course of otherwise lawful routine and
ongoing agricultural activities.
This bill would expand the exemption to include all acts in the
course of otherwise lawful routine and ongoing agricultural
activities, without regard to location. The bill would specify that
those acts include the diversion of water and use of water for
agricultural purposes.
Under the public trust doctrine, the State Water Resources Control
Board is required to take the public trust into account in the
planning and allocation of water resources and to protect the public
trust whenever feasible.
This bill would state the intent of the Legislature to enact
legislation that would clarify that the public trust doctrine does
not extend to groundwater.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1600 of the Fish and
Game Code is amended to read:
1600. The Legislature finds and declares that the protection and
conservation of the fish and wildlife resources of this state are of
utmost public interest. Fish and wildlife are the property of the
people and provide a major contribution to the economy of the state,
as well as providing a significant part of the people's food supply;
therefore their conservation is a proper responsibility of the state.
This chapter is enacted to provide conservation for these resources
and certainty and consistency with other requirements of law
.
SEC. 2. Section 1602 of the Fish and
Game Code is amended to read:
1602. (a) An entity may shall not
install a new diversion or means of diversion, or substantially
alter an existing means of diversion, that will substantially
divert or obstruct the natural flow of, or substantially change or
use any material from the bed, channel, or bank of, any river,
stream, or lake, or deposit or dispose of debris, waste, or other
material containing crumbled, flaked, or ground pavement where it may
pass into any river, stream, or lake, unless all of the following
occur:
(1) The department receives written notification regarding the
activity in the manner prescribed by the department. The notification
shall include, but is not limited to, all of the following:
(A) A detailed description of the project's location and a map.
(B) The name, if any, of the river, stream, or lake affected.
(C) A detailed project description, including, but not limited to,
construction plans and drawings, if applicable.
(D) A copy of any document prepared pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code.
(E) A copy of any other applicable local, state, or federal permit
or agreement already issued.
(F) Any other information required by the department.
(2) The department determines the notification is complete in
accordance with Chapter 4.5 (commencing with Section 65920) of
Division 1 of Title 7 of the Government Code, irrespective of whether
the activity constitutes a development project for the purposes of
that chapter.
(3) The entity pays the applicable fees, pursuant to Section 1609.
(4) One of the following occurs:
(A)
(i)
(A) (i) The department informs
the entity, in writing, that the activity will not substantially
adversely affect an existing fish or wildlife resource, and that the
entity may commence the activity without an agreement, if the entity
conducts the activity as described in the notification, including any
measures in the notification that are intended to protect fish and
wildlife resources.
(ii) Each region of the department shall log the notifications of
activities where no agreement is required. The log shall list the
date the notification was received by the department, a brief
description of the proposed activity, and the location of the
activity. Each item shall remain on the log for one year. Upon
written request by any person, a regional office shall send the log
to that person monthly for one year. A request made pursuant to this
clause may be renewed annually.
(B) The department determines that the activity may substantially
adversely affect an existing fish or wildlife resource and issues a
final agreement to the entity that includes reasonable measures
necessary to protect the resource, and the entity conducts the
activity in accordance with the agreement.
(C) A panel of arbitrators issues a final agreement to the entity
in accordance with subdivision (b) of Section 1603, and the entity
conducts the activity in accordance with the agreement.
(D) The department does not issue a draft agreement to the entity
within 60 days from the date notification is complete, and the entity
conducts the activity as described in the notification, including
any measures in the notification that are intended to protect fish
and wildlife resources.
(b) (1) If an activity
involves the routine maintenance and operation of water supply,
drainage, flood control, or waste treatment and disposal facilities
constructed and in existence before 2000 , notice to and
agreement with the department shall not be required after the initial
notification and agreement, unless the department
determines either of the following :
(A)
(1) The work described in the agreement
has substantially changed.
(B)
(2) Conditions affecting fish and wildlife resources
have substantially changed, and those resources are
may be adversely affected by the activity
conducted under the agreement.
(2) This subdivision applies only if notice to, and agreement
with, the department was attained prior to January 1, 1977, and the
department has been provided a copy of the agreement or other proof
of the existence of the agreement that satisfies the department, if
requested.
(c) (1) Under either paragraph (1) or (2) of subdivision (b), the
department shall contact the entity performing the activity and
suggest alternative means of maintaining and operating the facilities
consistent with maintaining the full use and function of the
facilities and the full use of any water diverted or used by or
through those facilities. The entity and the department shall meet
and confer in good faith in regard to the issues. The department
shall not utilize threats of criminal proceedings or fines under this
chapter or threats of application of any other provision of state or
federal law prior to or during the meet and confer process.
(c)
(2) If no agreement is reached, and the diversion of water or
discharge of water is subject to the jurisdiction of a state court or
the State Water Resources Control Board, the department may file a
complaint or petition to require changes in the maintenance or
operation of the facilities with the agency having jurisdiction.
(3) If the diversion of water or discharge of water is not subject
to jurisdiction of a state court or the State Water Resources
Control Board, the department may file an action for public nuisance
with, and maintain that action in, the Superior Court having
jurisdiction over the site of the subject activity. If the court
determines that the activity constitutes a public nuisance because of
conditions described in paragraph (2) of subdivision (b) and that
the new practices or conditions required to avoid or abate the public
nuisance place additional costs or economic burdens suffered and
required to be incurred to remedy the public nuisance on the diverter
or the entity performing the operation and maintenance of the
facilities, the additional costs or economic burdens shall be deemed
a taking of property for the public purpose of protection of fish and
wildlife resources and shall be compensated by the department in
order to maintain reasonable certainty to persons, business entities,
and public entities within the state and to remedy the nuisance
conditions.
(d) It is unlawful for any person to violate this
chapter.
SEC. 3. Section 1605 of the Fish and
Game Code is amended to read:
1605. (a) (1) Except as otherwise provided in this section, the
term of an agreement regarding the installation of a new
diversion or means of diversion or the substantial alteration of an
existing means of diversion that will substantially affect a river,
stream, or lake as provided in subdivision (a) of Section 1602
shall not exceed five years.
(2) Notwithstanding paragraph (1), after the agreement expires,
the entity shall remain responsible for implementing any mitigation
or other measures specified in the agreement to protect fish and
wildlife resources.
(b) Any The entity may request one
extension of a previously-approved agreement, if the entity requests
the extension prior to the expiration of its original term. The
department shall grant the extension unless it determines that the
agreement requires modification because the measures contained in the
agreement no longer protect the fish and wildlife resources that the
activity may substantially adversely affect. In the event the
department makes that determination, the department shall propose
measures intended to protect those resources.
(c) If the entity disagrees with the department's determination
that the agreement requires modification to protect fish and wildlife
resources or with the measures proposed by the department, the
disagreement shall be resolved pursuant to the procedures described
in subdivision (b) of Section 1603.
(d) The department may shall not
extend an agreement for more than five years.
(e) (1) An original agreement shall remain in effect until the
department grants the extension request, or new measures are imposed
to protect fish and wildlife resources by agreement or through the
arbitration process.
(2) Notwithstanding paragraph (1), an original agreement
may shall not remain in effect for more than one
year after its expiration date.
(f) If the entity fails to submit a request to extend an agreement
prior to its expiration, the entity shall submit a new notification
before commencing or continuing the activity covered by the
agreement.
(g) Notwithstanding paragraph (1) of subdivision (a), the
department may issue an agreement, that otherwise meets the
requirements of this chapter, for a term longer than five years if
the following conditions are satisfied:
(1) The information the entity provides to the department in its
notification meets the requirements of paragraph (1) of subdivision
(a) of Section 1602.
(2) The entity agrees to provide a status report to the department
every four years. The status report shall be delivered to the
department no later than 90 days prior to the end of each four-year
period, and shall include all of the following information:
(A) A copy of the original agreement.
(B) The status of the activity covered by the agreement.
(C) An evaluation of the success or failure of the measures in the
agreement to protect the fish and wildlife resources that the
activity may substantially adversely affect.
(D) A discussion of any factors that could increase the predicted
adverse impacts on fish and wildlife resources, and a description of
the resources that may be adversely affected.
(3) The department shall review the four-year status report, and
conduct an onsite inspection to confirm that the entity is in
compliance with the agreement and that the measures in the agreement
continue to protect the fish and wildlife resources. If the
department determines that the measures in the agreement no longer
protect the fish and wildlife resources that are being substantially
adversely affected by the activity, the department, in consultation
with the entity, and within 45 days of receipt of the report, shall
impose one or more new measures to protect the fish and wildlife
resources affected by the activity. If requested to do so by the
entity, the department shall make available the information upon
which it determined the agreement no longer protects the affected
fish and wildlife resources. If the entity disagrees with one or more
of the new measures, within seven days of receiving the new
measures, it shall notify the department, in writing, of the
disagreement. The entity and the department shall consult regarding
the disagreement. The consultation shall be completed within seven
days after the department receives the entity's notice of
disagreement. If the department and entity fail to reach agreement,
the entity may request, in writing, the appointment of a panel of
arbitrators to resolve the disagreement. The panel of arbitrators
shall be appointed within 14 days of the completed consultation. The
panel of arbitrators shall issue a decision within 14 days of the
date it is established. All other provisions of subdivision (b) of
Section 1603 regarding the panel shall apply to any arbitration panel
established in accordance with this subdivision. If the entity fails
to provide timely status reports as required by this subdivision,
the department may suspend or revoke the agreement.
(4) The agreement shall authorize department employees to conduct
onsite inspections relevant to the agreement, upon reasonable notice.
Nothing in this section limits the authority of department employees
to inspect private or public sites.
(5) Except as provided in paragraph (3), subparagraph (D) of
paragraph (4) of subdivision (a) of Section 1602 and the time periods
to process agreements specified in this chapter do not apply to
agreements issued pursuant to this section.
(h) Each region of the department shall log the notifications of
activities for which a long-term agreement is being considered
pursuant to subdivision (g). The log shall list the date the
notification was received by the department, a brief description of
the proposed activity, and the location of the activity. Each item
shall remain on the log for one year. Upon written request by any
person, a regional office shall send the log to that person monthly
for one year. A request made pursuant to this paragraph may be
renewed annually.
SEC. 4. Section 1610 of the Fish and
Game Code is amended to read:
1610. (a) Except as provided in subdivision (b), this chapter
does not apply to any of the following:
(1) Immediate emergency work necessary to protect life or
property.
(2) Immediate emergency work necessary to maintain the use of
facilities employed and regularly used for the diversion or discharge
of water.
(2)
(3) Immediate emergency repairs to public service
facilities necessary to maintain service as a result of a disaster in
an area in which a state of emergency has been proclaimed by the
Governor pursuant to Chapter 7 (commencing with Section 8550) of
Division 1 of Title 2 of the Government Code.
(3)
(4) Emergency projects undertaken, carried out, or
approved by a state or local governmental agency to maintain, repair,
or restore an existing highway, as defined in Section 360 of the
Vehicle Code, within the existing right-of-way of the highway, that
has been damaged as a result of fire, flood, storm, earthquake, land
subsidence, gradual earth movement, or landslide, within one year of
the damage. Work needed in the vicinity above and below a highway may
be conducted outside of the existing right-of-way if it is needed to
stop ongoing or recurring mudslides, landslides, or erosion that
pose an immediate threat to the highway, or to restore those roadways
damaged by mudslides, landslides, or erosion to their predamage
condition and functionality. This paragraph does not exempt from this
chapter any project undertaken, carried out, or approved by a state
or local governmental agency to expand or widen a highway damaged by
fire, flood, storm, earthquake, land subsidence, gradual earth
movement, or landslide. The exception provided in this paragraph does
not apply to a highway designated as an official state scenic
highway pursuant to Section 262 of the Streets and Highways Code.
(b) The entity performing the emergency work described in
subdivision (a) shall notify the department of the work, in writing,
within 14 days of beginning the work. Any work described in the
emergency notification that does not meet the criteria for the
emergency work described in subdivision (a) is a violation of this
chapter if the entity did not first notify the department in
accordance with Section 1602.
SEC. 5. Section 1615 of the Fish and
Game Code is amended to read:
1615. (a) A person who violates this chapter
Section 1602 is subject to a civil penalty of not more
than twenty-five thousand dollars ($25,000) for each violation.
(b) The civil penalty imposed pursuant to subdivision (a) is
separate from, and in addition to, any other civil penalty imposed
pursuant to this section or any other provision of the law.
(c) In determining the amount of any civil penalty imposed
pursuant to this section, the court shall take into consideration all
relevant circumstances, including, but not limited to, the nature,
circumstance, extent, and gravity of the violation. In making this
determination, the court may consider the degree of toxicity and
volume of the discharge, the extent of harm caused by the violation,
whether the effects of the violation may be reversed or mitigated,
and, with respect to the defendant, the ability to pay, the effect of
any civil penalty on the ability to continue in business, any
voluntary cleanup efforts undertaken, any prior history of
violations, the gravity of the behavior, the economic benefit, if
any, resulting from the violation, and any other matters the court
determines that justice may require.
(d) Every civil action brought under this section shall be brought
by the Attorney General upon complaint by the department, or by the
district attorney or city attorney in the name of the people of the
State of California, and any actions relating to the same violation
may be joined or consolidated.
(e) (1) In any civil action brought pursuant to this chapter in
which a temporary restraining order, preliminary injunction, or
permanent injunction is sought, it is not necessary to allege or
prove at any stage of the proceeding any of the following:
(A) That irreparable damage will occur if the temporary
restraining order, preliminary injunction, or permanent injunction is
not issued.
(B) That the remedy at law is inadequate.
(2) The court shall issue a temporary restraining order,
preliminary injunction, or permanent injunction in a civil action
brought pursuant to this chapter without the allegations and without
the proof specified in paragraph (1).
(f) All civil penalties collected pursuant to this section shall
not be considered fines or forfeitures as defined in Section 13003,
and shall be apportioned in the following manner:
(1) Fifty percent shall be distributed to the county treasurer of
the county in which the action is prosecuted. Amounts paid to the
county treasurer shall be deposited in the county fish and wildlife
propagation fund established pursuant to Section 13100.
(2) Fifty percent shall be distributed to the department for
deposit in the Fish and Game Preservation Fund. These funds may be
expended to cover the costs of any legal actions or for any other law
enforcement purpose consistent with Section 9 of Article XVI of the
California Constitution.
SEC. 6. Section 2087 of the Fish and
Game Code is amended to read:
2087. (a) Accidental take of candidate, threatened, or endangered
species resulting from acts , including, but not limited to,
the diversion of water and use of water for agricultural purposes,
that occur on or outside of the site of a farm or a
ranch in the course of otherwise lawful routine and ongoing
agricultural activities is not prohibited by this chapter.
(b) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SECTION 1. It is the intent of the Legislature
to enact legislation that would clarify that the public trust
doctrine does not extend to groundwater.