Amended in Assembly May 31, 2016

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 begin delete and end delete begin insert and, for registration for small irrigation use, end insert agree to begin insert specified end insert general begin delete conditions, as specified. end delete begin insert conditions. end insert

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 begin insert end the application of these general conditions to small irrigation use and would instead end insert require the begin delete board to consult end delete begin insert board, in consultation end insert with the Department of Fish and begin delete Wildlife in establishing these end delete begin insert Wildlife, to establish end insert general conditions begin delete and make compliance with certain Fish and Game Code requirements end delete begin insert specific to small irrigation use, as specified. The bill would require the Department of Fish and Wildlife to adopt general conditions end insert applicable to the diversion of begin delete water one of these conditions. end delete begin insert water upon determining that funds are available for that purpose. end insert 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 begin insert or
1229, as applicable, end insert 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 begin delete 1228.6. end delete begin insert 1228.6 or 1229, as applicable. 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.

begin delete

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 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, each of the following:

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

(ii) Submission of site-specific information.

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

(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.

(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.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1228.6 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

1228.6.  

(a) The board shall establish, and may from time to
time revise, reasonable general conditions to which all
begin delete appropriations end delete begin insert appropriations, other than small irrigation use, end insert
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) All conditions lawfully required by the Department of Fish
and Wildlife are conditions upon the appropriations.

(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.

SEC. 4.  

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

1229.  

(a) The begin delete board, end delete begin insert board shall, in consultation with the
Department of Fish and Wildlife, establish and may from time to
time revise, reasonable general conditions for small irrigation
use. 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
conditions shall include, but shall not be limited to, the following: end insert

begin insert

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

end insert begin insert

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

end insert begin insert

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

end insert begin insert

(4) The conditions required by the Department of Fish and
Wildlife pursuant to subdivision (b).

end insert begin insert

(b) The Department of Fish and Wildlife shall adopt general
conditions applicable to the diversion of water 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, which may include the following:

end insert begin insert

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

end insert begin insert

(2) Submission of site-specific information.

end insert begin insert

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

end insert begin insert

(4) Implementation of additional measures the Department of
Fish and Wildlife lawfully deems necessary to avoid site-specific
impacts, identified pursuant to paragraphs (1) to (3), inclusive,
on fish and wildlife resources.

end insert begin insert

(c) (1) 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 type of resources potentially affected by the
registration.

end insert begin insert

(2) The Department of Fish and Wildlife is not required to adopt
general conditions for small irrigation use pursuant to this section
until it determines that funds are available for that purpose.

end insert begin insert

(3) The board may continue to approve small irrigation use
appropriations pursuant to any general conditions in effect
pursuant to Section 1228.6 or 1229, as each read on December
31, 2016, which shall include any conditions lawfully required by
the Department of Fish and Wildlife, before the adoption of general
conditions pursuant to this section by the Department of Fish and
Wildlife.

end insert

begin insert (d) end insert begin insert   end insert begin insert The board, end insert 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 begin delete Section 1228.6 and end delete
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.

begin delete

(b)

end delete

begin insert (e) end insert  Facilities to store water for small irrigation use adopted
pursuant to subdivision begin delete (a) end delete begin insert (d) end insert 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 begin delete (a), end delete begin insert (d), 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.

(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.

begin delete

(c)

end delete

begin insert (f) 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 begin delete (a) end delete begin insert (d) end insert no
later than June 30, 2018.

begin delete

(d)

end delete

begin insert (g) end insert  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 delete

(e)

end delete

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

begin delete

(f)

end delete

begin insert (i) end insert  (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 begin delete subdivision (a) of
Section 1228.6 and end delete this section.

(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.

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.