California Legislature—2015–16 Regular Session

Assembly Bill No. 1704

Introduced by Assembly Member Dodd

January 25, 2016

An act to amend Sections 1228.3, 1228.6, and 1229.1 of, and to repeal and add Section 1229 of, the Water Code, relating to water rights.

LEGISLATIVE COUNSEL’S DIGEST

AB 1704, as introduced, Dodd. Water rights.

Existing law requires applicants for appropriation of water for small domestic, small irrigation, or livestock stockpond use to register with the State Water Resources Control Board, as specified. Existing law requires the registration to include a certification that the registrant has contacted a representative of the Department of Fish and Wildlife and has agreed to comply with conditions set forth by the Department of Fish and Wildlife.

This bill would, instead, require the registrant to provide a copy of the registrant’s registration form to the Department of Fish and Wildlife and agree to general conditions, as specified.

Existing law requires the board to establish general conditions to which all appropriations of water for small domestic, small irrigation, and livestock stockpond use are subject.

This bill would require the board to consult with the Department of Fish and Wildlife in establishing these general conditions and include in the general conditions compliance with certain Fish and Game Code requirements applicable to the diversion of water.

Under existing law, the board is not required to adopt general conditions for small irrigation use until the board determines that funds are available for that purpose and forbids registration for small irrigation use until these general conditions are established.

This bill would, instead, require the board to adopt general conditions for small irrigation use meeting certain timelines, and would specify certain of those general conditions. The bill would impose certain fees for these purposes.

Existing law does not apply the conditions appropriating water for small domestic, small irrigation, and livestock stockpond use to certain stream segments.

This bill would, instead, permit the board to issue and renew appropriations on these stream segments if the registration is consistent with certain requirements established by the Director of Fish and Wildlife.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1228.3 of the Water Code is amended to
read:

1228.3.  

(a) Registration of water use pursuant to this article
shall be made upon a form prescribed by the board. The registration
form shall set forth all of the following:

(1) The name and post office address of the registrant.

(2) The source of water supply.

(3) The nature and amount of the proposed use.

(4) The proposed place of diversion.

(5) The place where it is intended to use the water.

(6) The time for completion of construction of diversion works
and for complete application of the water to the proposed use.

(7) A certification that the registrant begin delete has contacted a
representative of the Department of Fish and Wildlife designated
by that department for that purpose, has provided information to
that department that is set forth in the registration form, and has
agreed to comply with all lawful conditions, including, but not
limited to, conditions upon the construction and operation of
diversion works, required by the Department of Fish and Wildlife.
The certification shall include a copy of any conditions required
by the Department of Fish and Wildlife pursuant to this paragraph. end delete
begin insert has provided a copy of the completed registration form to a
representative of the Department of Fish and Wildlife designated
by the department for this purpose and agrees to comply with
general conditions in accordance with Section 1228.6. end insert

(8) Any other information that may reasonably be required by
the board.

(b) Registration of water use shall be deemed completed on the
date that the form, executed in substantial compliance with the
requirements of this section, and the registration fee specified in
Section 1525 are received by the board.

(c) The board shall issue monthly a list of registrations filed
under this article during the preceding calendar month. This list
shall contain the information required by paragraphs (1) to (6),
inclusive, of subdivision (a). The list shall set forth a date prior to
which an interested person may file a written protest in opposition
to the approval of a stockpond registration. That date shall be not
later than 30 days from the date on which the list is issued. The
board shall mail the monthly list of registrations filed to a person
who requests the list.

(d) Prior to the date set forth on the list required under
subdivision (c), an interested person may file with the board a
written protest in opposition to the approval of a stockpond
registration. The protest shall clearly set forth the protestant’s
objections to the registered use based on interference with prior
rights. The protest shall be served on the registrant by the protestant
by mailing a duplicate copy of the protest to the registrant, or
through service undertaken in another manner determined to be
adequate by the board. The procedures set forth in Article 1.5
(commencing with Section 1345) of Chapter 5 shall be used for
reviewing a protested registration.

SEC. 2.  

Section 1228.6 of the Water Code is amended to read:

1228.6.  

(a) The board begin delete shall end delete begin insert shall, in consultation with the
Department of Fish and Wildlife, end insert establish, and may from time to
time revise, reasonable general conditions to which all
appropriations made pursuant to this article shall be subject. The
conditions shall include, but shall not be limited to, the following:

(1) The appropriation is subject to prior rights.

(2)  begin delete All conditions lawfully required by the Department of Fish
and Wildlife are conditions upon the appropriations. end delete begin insert General
conditions applicable to the diversion of water as required by the
Department of Fish and Wildlife to comply with the requirements
in Chapter 6 (commencing with Section 1600) of Division 2 of the
Fish and Game Code. end insert

(3) Diversion works shall be constructed and water applied to
beneficial use with due diligence.

(4) Registration shall be renewed and water use reported
pursuant to law and to the rules of the board.

(b) Immediately upon registration pursuant to Section 1228.3,
renewal of registration pursuant to Section 1228.5, or amended
registration pursuant to Section 1228.7, the board shall provide
the registrant with a written document setting forth the conditions
required by this section, and the perfection and exercise of rights
acquired pursuant to this article shall at all times be subject to those
conditions.

(c) The conditions required by this section shall be deemed
“terms and conditions” within the meaning of Section 1825 and
the expression of legislative intent contained in that section shall
be applicable thereto. The authority of the board to enforce the
terms and conditions of permits and licenses to appropriate water,
and to prevent the unlawful diversion of water, including, but not
limited to, provisions regarding cease and desist orders and the
revocation of permits and licenses, shall be applicable to
appropriations initiated or perfected pursuant to this article.

SEC. 3.  

Section 1229 of the Water Code is repealed.

begin delete

1229.  

(a) The board is not required to adopt general conditions
for small irrigation use pursuant to subdivision (a) of Section
1228.6 until the board determines that funds are available for that
purpose.

(b) A registration for small irrigation use pursuant to this article
is not authorized until the board establishes general conditions for
small irrigation use pursuant to subdivision (a) of Section 1228.6
to protect instream beneficial uses.

(c) The board may establish general conditions for some
methods of diversion or categories of small irrigation use before
establishing general conditions for other methods or categories,
in which case a registration for small irrigation use is authorized
only for those methods or categories for which the board has
established the general conditions for the protection of instream
beneficial uses.

end delete

SEC. 4.  

Section 1229 is added to the Water Code, to read:

1229.  

(a) The board, no later than June 30, 2017, shall adopt
general conditions for facilities to store water for small irrigation
use during high stream flow resulting in the reduction of existing
diversions during periods of low stream flow, pursuant to Section
1228.6 and this section, for the following:

(1) Three classes of diversions as follows:

(A) Diversions to off-stream storage reservoirs with points of
diversion located on Class I, II, or III streams.

(B) Diversions to on-stream storage reservoirs located on Class
II or Class III streams, except streams within the area described
in paragraph (1) of subdivision (a) of Section 1259.4.

(C) Diversions to on-stream storage reservoirs located on Class
III streams within the area described in paragraph (1) of subdivision
(a) of Section 1259.4, which shall be deemed to adequately address
the principles described in Section 2.2 of the North Coast Instream
Flows Policy adopted by the board on October 22, 2013, and any
subsequent amendments.

(2) (A) Diversions from watersheds that support salmonid
fisheries and from drainage areas of one square mile or less shall
be subject to the following general conditions:

(i) Diversions from drainage areas greater than 0.50 square miles
but no more than one square mile shall occur only from November
1 to March 31 of each year and only when stream flow exceeds
the February median flow at the point of diversion.

(ii) Diversions from drainage areas greater than 0.25 square
miles but no more than 0.50 square miles shall occur only when
stream flow exceeds the February median flow at the point of
diversion.

(iii) Diversions from drainage areas 0.25 square miles or less
may occur without season of diversion or minimum bypass
requirements.

(B)  No diversion under this paragraph may result in a
cumulative stream flow depletion at the one square mile drainage
that exceeds 10 percent of the average annual volume of stream
flow.

(3) The following shall be included in the general conditions
for facilities to store water for small irrigation use adopted pursuant
to this subdivision:

(A) No water shall be diverted or used under the registration,
and no construction related to the diversion shall commence, until
the applicant has obtained and is in compliance with all necessary
permits and other approvals required by other agencies.

(B) Pursuant to Sections 100 and 275 and the common law
public trust doctrine, all appropriations made under this section,
including the method of diversion, purpose of water use, and
quantity of water diverted, are subject to the continuing authority
of the board in accordance with law and in the interest of the public
welfare to protect public trust uses and to prevent waste,
unreasonable use, unreasonable purpose of use, or unreasonable
method of diversion of water.

(C) (i) Diversion of water under the appropriation is subject to
prior rights. An applicant may be required to curtail diversion or
release water stored during the most recent collection season if
diversion under the appropriation results in injury to holders of
legal downstream senior water rights.

(ii) If the applicant holds collected water in a reservoir, as
defined by Section 6004.5, the applicant may be required to bypass
or release water through, over, or around the dam. If the release
of the collected water would not effectively satisfy the prior
downstream water rights, the applicant may be required to
otherwise compensate the holders of the prior rights for any injury
caused.

(D) All appropriations are issued subject to available flows. If
the source contains treated wastewater, water imported from
another stream system, or return flow from other projects, the state
makes no guarantee that the supply will continue.

(E) The appropriation does not authorize any act that results in
the taking of a threatened, endangered, or candidate species, or
any act that is now prohibited, or becomes prohibited in the future,
under either the California Endangered Species Act (Chapter 1.5
(commencing with Section 2050) of Division 3 of the Fish and
Game Code) or the federal Endangered Species Act (16 U.S.C.
Section 1531 et seq.).

(F) The appropriation is subject to the applicable board water
measurement and reporting regulations.

(b) The board shall adopt general conditions and, if necessary,
amend existing general conditions for the registration of small
irrigation use for purposes not described in subdivision (a) no later
than June 30, 2018.

(c) Notwithstanding subdivision (b) of Section 1228.3 and
Section 1525, the minimum fees for small irrigation use
registrations shall be the following:

(1) A registration fee of five hundred dollars ($500) shall be
paid to the board and a registration fee of five hundred dollars
($500) shall be paid to the Department of Fish and Wildlife.

(2) A renewal of registration fee of two hundred fifty dollars
($250) shall be paid to the board and a renewal of registration fee
of two hundred fifty dollars ($250) shall be paid to the Department
of Fish and Wildlife.

SEC. 5.  

Section 1229.1 of the Water Code is amended to read:

1229.1.  

begin delete (a) end delete begin delete   end delete begin delete This article does not apply to end delete begin insert The board may issue
and renew registrations on end insert those stream segments for which the
Director of Fish and Wildlife establishes proposed streamflow
requirements pursuant to Section 10002 of the Public Resources
begin delete Code, notwithstanding the July 1, 1989, deadline for preparation
of the requirements. end delete begin insert Code, if the registration includes conditions
consistent with the proposed streamflow requirements. end insert

begin delete

(b) Notwithstanding subdivision (a), this article applies to a
registration filed before the Director of Fish and Wildlife
establishes proposed streamflow requirements for the source of
water supply for the registration. The conditions for renewal under
subdivision (c) of Section 1228.5 may include any conditions the
Department of Fish and Wildlife determines to be necessary to
protect stream-related fish and wildlife resources on a source of
water supply for which the Director of Fish and Wildlife has
established proposed streamflow requirements pursuant to Section
10002 of the Public Resources Code.

end delete