BILL ANALYSIS Ó
AB 426
Page 1
ASSEMBLY THIRD READING
AB 426 (Salas)
As Amended April 23, 2013
Majority vote
WATER, PARKS & WILDLIFE 10-5 APPROPRIATIONS
12-5
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|Ayes:|Rendon, Blumenfield, |Ayes:|Gatto, Bocanegra, |
| |Bocanegra, Fong, Frazier, | |Bradford, |
| |Gatto, Gomez, Gray, | |Ian Calderon, Campos, |
| |Yamada, Bloom | |Eggman, Gomez, Hall, |
| | | |Rendon, Pan, Quirk, Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bigelow, Allen, Dahle, |Nays:|Harkey, Bigelow, |
| |Beth Gaines, Patterson | |Donnelly, Linder, Wagner |
| | | | |
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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
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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
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)Allows, 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, the water right holder to seek a change to that water
right through a change petition to the State Water Board.
6)Requires, if the statutory adjudication decree was issued before
January 1, 1981, and the water right is not based on a permit or
license, the water right holder to seek a change to that water
right by petitioning the court with jurisdiction over the
decreed rights.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, there are minor, absorbable costs associated with this
bill.
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.
A severe drought and significant water shortages between 1976 and
1977 highlighted the strengths and weaknesses of the state's water
rights laws, then-Governor Jerry Brown created the Governor's
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Commission to Review California Water Rights Law (Commission) and
mandated it review existing law and propose modifications. The
Final Report issued by that Commission contained detailed legal
analyses and recommendations for both administrative actions and
statutory changes to the Water Code.
One major area of the Final Report focused on improving
efficiencies in water use, including encouraging voluntary
short-term and long-term transfers. Those sections were enacted,
together with several other provisions, in AB 1147 (Filante),
Chapter 933, Statutes of 1980. AB 1147 addressed water rights;
clarified the ownership of waste water and waste water facilities;
and allowed for the transfer of water rights, including rights
held subject to a statutory adjudication decree. In the March 19,
1979, digest to AB 1147, the Legislative Counsel's office stated
that AB 1147 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), Chapter 1145, Statutes of 1988,
amended, repealed, and reordered several of the Water Code
Sections created under AB 1147. In the reorder, AB 982 moved the
provisions related to transferring rights subject to a statutory
adjudication decree from Water Code Section 1745 to Water Code
Section 1740 but left the statutory language virtually unchanged,
including the old effective date. That date was carried forward by
deleting "subsequent to the enactment of this legislation" and
inserting "after January 1, 1981." No reason for maintaining that
effective date was provided.
According to the author, 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 but
does not mandate that such water rights holders go to the State
Water Board for permission. The author states that by authorizing
an additional, voluntary process through an administrative agency,
that this bill encourages water transfers because it allows 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 this water transfer section to all but a few
adjudication decrees that were entered before that date.
AB 426
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Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096
FN: 0000584