Amended in Assembly March 30, 2016

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 make compliance with certain Fish and Game Code requirements applicable to the diversion of 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.

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 exempts certain stream segments subject to minimum streamflow requirements under another law from these laws authorizing small domestic, small irrigation, and livestock stockpond use of water upon proper registration.

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 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:

(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) (1) 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:

(A) The appropriation shall be subject to prior rights.

(B) General conditions begin delete shall be end delete 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. 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, begin delete both end delete begin insert each end insert of the following:

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

(ii) Submission of site-specific information.

begin insert

(iii) Consultation with the Department of Fish and Wildlife
regarding the findings of the site-specific assessments and
information.

end insert begin insert

(iv) Implementation of additional measures the Department of
Fish and Wildlife lawfully deems necessary to avoid site-specific
impacts, identified pursuant to clauses (i) to (iii), inclusive, on fish
and wildlife resources.

end insert

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

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

(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.

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

(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.

(B) Diversions under this paragraph 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.

(C) 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.

(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.

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

(1) 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.

(2) Pursuant to Sections 100 and 275 and the common law public
trust doctrine, all appropriations made under subdivision (a),
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.

(3) (A) 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.

(B) 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.

(4) 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.

(5) 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.).

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

(c) 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.

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

(1) A registration fee of five hundred dollars ($500).

(2) A renewal of registration fee of two hundred fifty dollars
($250).

begin insert

(e) Beginning January 1, 2020, the board may periodically
adopt regulations to update the general conditions specified in
this section.

end insert begin insert

(f) (1) 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 and this section.

end insert begin insert

(2) 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 general conditions for the protection of instream
beneficial uses.

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.