Amended in Assembly March 16, 2016

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 amended, 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 begin delete include in the general conditions end delete begin insert make end insert compliance with certain Fish and Game Code requirements applicable to the diversion of begin delete water. end delete begin insert water one of these conditions. The bill would also declare that it is the intent of the Legislature that the general conditions simplify the issuance of registrations. end insert

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 begin delete does not apply the conditions appropriating water for end delete begin insert exempts certain stream segments subject to minimum streamflow requirements under another law from these laws authorizing end insert small domestic, small irrigation, and livestock stockpond use begin delete to certain stream segments. end delete begin insert of water upon proper registration. end insert

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 begin delete set forth all of the following: end delete begin insert include instructions on
how the registrant should comply with the general conditions
adopted pursuant to Section 1228.6 and request the following from
the registrant: end insert

(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 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.

(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)  begin insert (1) end insert begin insert   end insert The board shall, in consultation with the
Department of Fish and Wildlife, 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:

begin delete

(1)

end delete

begin insert (A) end insert  The appropriation begin delete is end delete begin insert shall be end insert subject to prior rights.

begin delete

(2)

end delete

begin insert (B) end insert  General conditions begin insert shall be end insert 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. begin insert The general
conditions may include requirements applicable only to specific
methods of diversion or categories of registration, commensurate
with the project’s environmental impact. These requirements may
include, but shall not be limited to, both of the following: end insert

begin insert

(i) An assessment to avoid potential site-specific impacts on fish
and wildlife resources.

end insert begin insert

(ii) Submission of site-specific information.

end insert begin delete

(3)

end delete

begin insert (C) end insert  Diversion works shall be constructed and water applied to
beneficial use with due diligence.

begin delete

(4)

end delete

begin insert (D) end insert  Registration shall be renewed and water use reported
pursuant to law and to the rules of the board.

begin insert

(2) It is the intent of the Legislature that the board and the
Department of Fish and Wildlife adopt general conditions that
simplify the issuance of registrations in a cost-effective and
environmentally protective manner, and the regulatory burden of
complying with the general conditions be commensurate with the
complexity and number of resources potentially affected by the
registration.

end insert

(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.

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 begin delete for facilities to end delete begin insert that would permit a registrant
to construct a facility that would end insert store water for small irrigation
use during begin insert times of end insert high stream flow begin delete resulting in the reduction of
existing end delete begin insert in exchange for that registrant reducing end insert diversions during
periods of low stream flow, pursuant to Section 1228.6 and this
section, for the following:

begin delete

(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.

end delete begin insert

(1) (A) Diversions from coastal streams entering the Pacific
Ocean and streams entering the San Francisco Bay to off-stream
storage reservoirs or on-stream storage reservoirs located on
stream reaches where fish are not present.

end insert begin delete

(2) (A)

end delete

begin insert (B) end insert  Diversions begin insert under this paragraph end insert 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.

begin delete

(B)

end delete

begin insert (C) end insert   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.

begin insert

(2) Diversions from other streams for which, in the judgment
of the board, the reduction in existing diversions during low flow
periods will result in a benefit to fish and wildlife.

end insert begin delete

(3) The following shall be included in the general conditions
for facilities

end delete

begin insert (b) end insert begin insert   end insert begin insert Facilities end insert to store water for small irrigation use adopted
pursuant to begin delete this subdivision: end delete begin insert subdivision (a) are subject to the
following general conditions: end insert

begin delete

(A)

end delete

begin insert (1) end insert  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.

begin delete

(B)

end delete

begin insert (2) end insert  Pursuant to Sections 100 and 275 and the common law public
trust doctrine, all appropriations made under begin delete this section, end delete
begin insert subdivision (a), end insert 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.

begin delete

(C) (i) 

end delete

begin insert (3) end insert begin insert   end insert begin insert (A) end insert begin insert   end insert 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.

begin delete

(ii)

end delete

begin insert (B) end insert  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.

begin delete

(D)

end delete

begin insert (4) end insert  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.

begin delete

(E)

end delete

begin insert (5) end insert  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.).

begin delete

(F)

end delete

begin insert (6) end insert  The appropriation is subject to the applicable board water
measurement and reporting regulations.

begin delete

(b)

end delete

begin insert (c) end insert  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.

begin delete

(c) Notwithstanding subdivision (b) of

end delete

begin insert (d) end insert begin insert   end insert begin insert In addition to any fees imposed by the board in accordance
with end insert Section 1228.3 and Section 1525, the begin delete minimum end delete begin insert following end insert
fees for small irrigation use registrations shall be begin delete the following: end delete
begin insert paid to the Department of Fish and Wildlife: end insert begin insert end insert

(1) A registration fee of five hundred dollars begin delete ($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. end delete begin insert ($500). end insert

(2) A renewal of registration fee of two hundred fifty dollars
begin delete ($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. end delete begin insert ($250). end insert

SEC. 5.  

Section 1229.1 of the Water Code is amended to read:

1229.1.  

The board may issue and renew registrations on those
stream segments for which the Director of Fish and Wildlife
establishes proposed streamflow requirements pursuant to Section
10002 of the Public Resources Code, if the registration includes
conditions consistent with the proposed streamflow requirements.