BILL ANALYSIS Ó
AB 426
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 426 (Salas) - As Amended: April 23, 2013
SUBJECT : Water Transfers: Statutory Adjudications
SUMMARY : Allows a party with a water right that was decreed
through a statutory adjudication prior to January 1, 1981 to use
an alternative voluntary method for seeking a temporary,
long-term, or permanent transfer of that water right. Allows
that party, instead of going back to court, to seek a change
through the same administrative processes at the State Water
Resources Control Board (State Water Board) that are available
to parties with statutorily adjudicated water rights that date
after January 1, 1981 or who hold permits or licenses,
regardless of the date.
EXISTING LAW:
1)Requires, since 1914, that a party seeking to appropriate
surface waters of the State apply to the State Water Board for
a permit or license and empowers the State Water Board with
continuing jurisdiction over those permits and licenses.
Grants continued recognition to other types of water rights
that existed at the time the permit system was created
including riparian rights, pre-1914 appropriative rights, and
others, subject to certain conditions.
2)Allows a water rights applicant, permittee, or licensee to
petition the State Water Board in order to make a change in
the point of diversion, place of use, or purpose of use from
that specified in a water rights application, permit, or
license ("change petition").
3)Allows the State Water Board to approve a valid change
petition as long as, among other requirements, the change
would not result in substantial injury to any legal user of
water and would not unreasonably affect fish, wildlife, or
other instream beneficial uses.
4)Establishes procedures for determining all of the water rights
on a stream system, including rights based on appropriation,
riparian right, or other basis, pursuant to administrative
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proceedings before the State Water Board followed by judicial
proceedings and the issuance of a decree that is conclusive as
to the rights of all existing claimants or would-be claimants
upon that stream system ("statutory adjudication decree").
5)For a water right obtained pursuant to a statutory
adjudication decree issued after January 1, 1981, or for a
water right pursuant to a statutory adjudication decree but
that is based on a permit or license, regardless of the date
of the decree, allows the water right holder to seek a change
to that water right through a change petition to the State
Water Board.
6)If the statutory adjudication decree was issued before January
1, 1981, and the water right is not based on a permit or
license, requires the water right holder to seek a change to
that water right by petitioning the court with jurisdiction
over the decreed rights.
FISCAL EFFECT : Unknown
COMMENTS : The original statute first allowing the holder of
rights under a statutorily adjudicated decree to transfer them
by voluntarily going to the State Water Board, instead of a
court, was enacted on January 1, 1981. What is less clear is why
the statute, by its own terms, only applied to decrees that were
issued after its enactment.
In 1977, then-Governor Jerry Brown issued an Executive Order
creating the Governor's Commission to Review California Water
Rights Law (Commission) and mandating it to review existing law
and propose modifications. In its Final Report issued in 1978,
the Commission acknowledged that "drought succeeds like nothing
else in reminding Californians of their enormous dependence upon
water" and stated that the severe drought and significant water
shortages of 1976 to 1977 had "served to highlight the principal
strengths and weaknesses of the state's water rights law." The
report contained detailed analyses of existing law and
recommendations for both administrative actions and statutory
changes. In fact, the Final Report was so specific with respect
to proposed statutory changes that it presented them as draft
bill language complete with strikeouts and underlines to the
then-existing Water Code.
One major area of the Final Report focused on improving
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efficiencies in water use, including encouraging voluntary
short-term and long-term transfers. Among the draft statutory
language provided in order to potentially implement those
changes was a new Chapter 10.5 in Division 2, Part 2, of the
Water Code which included the following article:
Article 3. Transfer of Decreed Rights
1746. Any water right determined under a court decree
issued pursuant to [a statutory adjudication]
subsequent to the enactment of this legislation shall
be transferable pursuant to the provisions of chapters
10 and 10.5 of this code. The court having the
appropriate jurisdiction over the decreed rights shall
enter a supplemental decree modifying any rights
involved upon motion of the board or any interested
party.
AB 1147 (Filante), Chapter 933, Statutes of 1980, enacted the
portion of the State Water Rights Commission's recommendations.
As Assemblymember Filante noted in his press release, "AB 1147
amends several sections of the Water Code, dealing with water
rights; clarifies the ownership of waste water and waste water
facilities; and allows for the transfer of water rights." AB
1147 included the above language, almost verbatim, as Water Code
Section 1745. In its March 19, 1979 digest to AB 1147, the
Legislative Counsel's office stated Section 1745 would, "permit
the transfer of any water right, including riparian rights,
which has been quantified after the effective date of the bill
pursuant to a statutory adjudication."
Eight years later AB 982 (Costa), c. 1145, Statutes of 1988
amended, repealed, and reordered several of the Water Code
sections created under AB 1147. AB 982 deleted the provisions
regarding temporary transfers and instead allowed short-term
(less than 1 year) CEQA-exempt transfers, among other changes.
In the reorder, AB 982 moved Water Code 1745 to Water Code
Section 1740 but left it virtually unchanged except for deleting
"subsequent to the enactment of this legislation" and
substituting the enactment date of the original legislation:
"after January 1, 1981."
Supporting arguments : The author states that "this bill
provides an optional, voluntary process for water right holders
to gain permission from the State of California to transfer
their water rights to other parties. Importantly, it does not
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mandate that such water rights holders go to the State Water
Board for permission." By authorizing an additional, voluntary
process through and administrative agency, the author states
that "this bill encourages water transfers" by allowing "those
with old water rights to participate in the transfer market
through a simpler process than petitioning a court to reopen an
entire adjudication." The author adds that the "effect of the
limitation to post-1981 decrees has severely limited the
applicability of section 1740 as all but a few adjudication
decrees were entered before that date."
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096