AB 1704,
as amended, Dodd. Waterbegin delete rights.end deletebegin insert rights: small irrigation use: lake or streambed alteration agreements.end insert
Existing law, the Water Rights Permitting Reform Act of 1988, authorizes a person to obtain a right to appropriate water for a small domestic use, small irrigation use, or livestock stockpond use upon first registering the use, as those uses are defined by the act, with the State Water Resources Control Board and thereafter applying the water to reasonable and beneficial use with due diligence. The act requires the registration of water use to be made upon a form prescribed by the board that requires, among other things, 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. The act requires the board to establish reasonable general conditions to which all appropriations made pursuant to the act are required to be subject, including, among other things, that all conditions lawfully required by the department are conditions upon the appropriations. The act provides that 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 that a registration for small irrigation use pursuant to the act is not authorized until the board establishes general conditions for small irrigation use to protect instream beneficial uses, as specified.
end insertbegin insertThis bill would require the board, on or before January 1, 2018, to adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high streamflow in exchange for the registrant reducing diversions during periods of low streamflow, as specified. The bill would require the board, on or before June 30, 2019, to adopt general conditions and, if necessary, amend existing general conditions for the registration of small irrigation use for other purposes.
end insertbegin insertExisting law exempts certain stream segments subject to certain minimum streamflow requirements from the provisions of the act upon proper registration.
end insertbegin insertThis bill would instead authorize the board to issue and renew registrations on those stream segments if the registration includes conditions consistent with the applicable streamflow requirements.
end insertbegin insertExisting law prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, without first notifying the department of that activity and entering into a lake or streambed alteration agreement, if required by the department to protect fish and wildlife resources. Under existing law, it is unlawful for any person to violate these notification and agreement provisions and a person who violates them is also subject to a civil penalty of not more than $25,000 for each violation.
end insertbegin insertThis bill would require the department, if an activity includes the diversion of water and the notification for the activity is accompanied with a proposed registration of water use, a renewal of registration, or an amended registration, to determine whether it is complete in the same manner as it determines whether a notification is complete and to propose any lawful conditions on the registration in a draft agreement. The bill would provide that lawful conditions on a registration that are included in a final lake or streambed alteration agreement are deemed conditions upon the appropriations of water under the registration. The bill would state the intent of the Legislature that these provisions simplify and reduce the regulatory burden for activities that require both notification to the department of the activity and registration of the water use pursuant to the act. Because the violation of a lake or streambed alteration agreement is a crime, by including lawful conditions on a registration in a final lake or streambed alteration agreement, this bill would impose a state-mandated local program.
end insertbegin insertThe California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
end insertbegin insertThis bill would provide that no reimbursement is required by this act for a specified reason.
end insertExisting 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.
end deleteThis bill would, instead, require the registrant to provide a copy of the registrant’s registration form to the Department of Fish and Wildlife and, for registration for small irrigation use, agree to specified general conditions.
end deleteExisting 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.
end deleteThis bill would end the application of these general conditions to small irrigation use and would instead require the board, in consultation with the Department of Fish and Wildlife, to establish general conditions specific to small irrigation use, as specified. The bill would require the Department of Fish and Wildlife to adopt general conditions applicable to the diversion of water upon determining that funds are available for that purpose. The bill would also declare that it is the intent of the Legislature that the general conditions simplify the issuance of registrations.
end deleteUnder 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.
end deleteThis 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.
end deleteExisting 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.
end deleteThis 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.
end deleteVote: majority.
Appropriation: no.
Fiscal committee: yes.
State-mandated local program: begin deleteno end deletebegin insertyesend insert.
The people of the State of California do enact as follows:
begin insertSection 1602 of the end insertbegin insertFish and Game Codeend insertbegin insert is
2amended to read:end insert
(a) An entitybegin delete mayend deletebegin insert shallend insert not substantially divert or
4obstruct the natural flow of, or substantially change or use any
5material from the bed, channel, or bank of, any river, stream, or
6lake, or deposit or dispose of debris, waste, or other material
7containing crumbled, flaked, or ground pavement where it may
8pass into any river, stream, or lake, unless all of the following
9occur:
10(1) The department receives written notification regarding the
11activity in the manner prescribed by the department. The
12notification shall include, but is not
limited to, all of the following:
13(A) A detailed description of the project’s location and a map.
14(B) The name, if any, of the river, stream, or lake affected.
15(C) A detailed project description, including, but not limited to,
16construction plans and drawings, if applicable.
17(D) A copy of any document prepared pursuant to Division 13
18(commencing with Section 21000) of the Public Resources Code.
P5 1(E) A copy of any other applicable local, state, or federal permit
2or agreement already issued.
3(F) Any other information required by the department.
4(2) The department
determines the notification is complete in
5accordance with Chapter 4.5 (commencing with Section 65920)
6of Division 1 of Title 7 of the Government Code, irrespective of
7whether the activity constitutes a development project for the
8purposes of that chapter.
9(3) The entity pays the applicable fees, pursuant to Section 1609.
10(4) One of the following occurs:
11(A)
end delete12(i)
end delete
13begin insert(A)end insertbegin insert end insertbegin insert(i)end insertbegin insert end insertThe
department informs the entity, in writing, that the
14activity will not substantially adversely affect an existing fish or
15wildlife resource, and that the entity may commence the activity
16without an agreement, if the entity conducts the activity as
17described in the notification, including any measures in the
18notification that are intended to protect fish and wildlife resources.
19(ii) Each region of the department shall log the notifications of
20activities where no agreement is required. The log shall list the
21date the notification was received by the department, a brief
22description of the proposed activity, and the location of the activity.
23Each item shall remain on the log for one year. Upon written
24request by any person, a regional office shall send the log to that
25person monthly for one year. A request made pursuant to this
26clause may be renewed annually.
27(B) The department
determines that the activity may
28substantially adversely affect an existing fish or wildlife resource
29and issues a final agreement to the entity that includes reasonable
30measures necessary to protect the resource, and the entity conducts
31the activity in accordance with the agreement.
32(C) A panel of arbitrators issues a final agreement to the entity
33in accordance with subdivision (b) of Section 1603, and the entity
34conducts the activity in accordance with the agreement.
35(D) The department does not issue a draft agreement to the
36entity within 60 days from the date notification is complete, and
37the entity conducts the activity as described in the notification,
38including any measures in the notification that are intended to
39protect fish and wildlife resources.
P6 1(b) (1) If an activity involves the
routine maintenance and
2operation of water supply, drainage, flood control, or waste
3treatment and disposal facilities, notice to and agreement with the
4department shall not be required after the initial notification and
5agreement, unless the department determines either of the
6following:
7(A) The work described in the agreement has substantially
8changed.
9(B) Conditions affecting fish and wildlife resources have
10substantially changed, and those resources are adversely affected
11by the activity conducted under the agreement.
12(2) This subdivision applies only if notice to, and agreement
13with, the department was attained prior to January 1, 1977, and
14the department has been provided a copy of the agreement or other
15proof of the existence of the agreement that satisfies the
16department, if requested.
17
(c) (1) If an activity includes the diversion of water and the
18notification for the activity is accompanied with a proposed
19registration, renewal of registration, or amended registration of
20water use pursuant to Section 1228.3, 1228.5, or 1228.7 of the
21Water Code, the department shall do both of the following:
22
(A) Determine whether the proposed registration, renewal of
23registration, or amended registration of water use is complete in
24the same manner as it determines whether a notification is complete
25in accordance with paragraph (2) of subdivision (a).
26
(B) Propose any lawful conditions
on the registration, including,
27but not limited to, conditions upon the construction and operation
28of diversion works as authorized by Section 1228.3 of the Water
29Code, in a draft agreement issued pursuant to Section 1603.
30
(2) Any conditions on a registration that are included in a final
31agreement issued pursuant to Section 1603 shall be deemed
32conditions upon the appropriation as provided in paragraph (2)
33of subdivision (a) of Section 1228.6 of the Water Code.
34
(3) It is the intent of the Legislature that this subdivision simplify
35and reduce the regulatory burden for activities that require
36notification pursuant to this section and the registration of water
37use pursuant to Article 2.7 (commencing with Section 1228) of
38Chapter 1 of Part 2 of Division 2 of the Water Code.
39(c)
end delete40begin insert(d)end insert It is unlawful for any person to violate this chapter.
begin insertSection 1229 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
(a) The board is not required to adopt general conditions
3for small irrigation use pursuant to subdivision (a) of Section
41228.6begin insert and this sectionend insert until the board determines that funds are
5available for that purpose.
6(b) A registration for small irrigation use pursuant to this article
7is not authorized until the board establishes general conditions for
8small irrigation use pursuant to subdivision (a) of Section 1228.6
9to protect instream beneficial uses.
10(c) The board may establish general conditions for some
11methods of diversion or categories of small irrigation use before
12establishing general
conditions for other methods or categories,
13in which case a registration for small irrigation use is authorized
14only for those methods or categories for which the board has
15established the general conditions for the protection of instream
16beneficial uses.
17
(d) On or before January 1, 2018, the board shall adopt general
18conditions that would permit a registrant to construct a facility
19that would store water for small irrigation use during times of
20high streamflow in exchange for that registrant reducing diversions
21during periods of low streamflow, pursuant to this section, as
22follows:
23
(1) For diversions from coastal streams entering the Pacific
24Ocean and streams entering the San Francisco Bay
for the
25following:
26
(A) Off-stream storage reservoirs.
27
(B) On-stream storage reservoirs located on stream reaches
28where fish are not present.
29
(2) For diversions from streams not described in paragraph (1)
30that, in the judgment of the board, the reduction in existing
31diversions during low flow periods will result in a benefit to fish
32and wildlife.
33
(e) On or before June 30, 2019, the board shall adopt general
34conditions and, if necessary,
amend existing general conditions
35for the registration of small irrigation use for purposes not
36described in subdivision (d).
begin insertSection 1229.1 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
begin delete(a)end deletebegin delete end deletebegin deleteThis article does not apply to end deletebegin insertOn end insertthose stream
39segments for which the Director of Fish and Wildlife establishes
40proposed streamflow requirements pursuant to Section 10002 of
P8 1the Public Resourcesbegin delete Code, notwithstanding the July 1, 1989, begin insert Code and for which
2deadline for preparation of the requirements.end delete
3the state board has adopted streamflow requirements, the board
4may issue and renew a registration
in accordance with this article
5if the registration includes conditions consistent with the applicable
6streamflow requirements.end insert
7(b) Notwithstanding subdivision (a), this article applies to a
8registration filed before the Director of Fish and Wildlife
9establishes proposed streamflow requirements for the source of
10water supply for the registration. The conditions for renewal under
11subdivision (c) of Section 1228.5 may include any conditions the
12Department of Fish and Wildlife determines to be necessary to
13protect stream-related fish and wildlife resources on a source of
14
water supply for which the Director of Fish and Wildlife has
15established proposed streamflow requirements pursuant to Section
1610002 of the Public Resources Code.
No reimbursement is required by this act pursuant to
18Section 6 of Article XIII B of the California Constitution because
19the only costs that may be incurred by a local agency or school
20district will be incurred because this act creates a new crime or
21infraction, eliminates a crime or infraction, or changes the penalty
22for a crime or infraction, within the meaning of Section 17556 of
23the Government Code, or changes the definition of a crime within
24the meaning of Section 6 of Article XIII B of the California
25Constitution.
Section 1228.3 of the Water Code is amended to
27read:
(a) Registration of water use pursuant to this article
29shall be made upon a form prescribed by the board. The registration
30form shall include instructions on how the registrant should comply
31with the general conditions adopted pursuant to Section 1228.6 or
321229, as applicable, and request the following from the registrant:
33(1) The name and post office address of the registrant.
34(2) The source of water supply.
35(3) The nature and amount of the proposed use.
36(4) The proposed place of diversion.
37(5) The place where it is intended to use the water.
38(6) The time for completion of construction of diversion works
39and for complete application of the water to the proposed use.
P9 1(7) A certification that the registrant has provided a copy of the
2completed registration form to a representative of the Department
3of Fish and Wildlife designated by the department for this purpose
4and agrees to comply with general conditions in accordance with
5Section 1228.6 or 1229, as
applicable.
6(8) Any other information that may reasonably be required by
7the board.
8(b) Registration of water use shall be deemed completed on the
9date that the form, executed in substantial compliance with the
10requirements of this section, and the registration fee specified in
11Section 1525 are received by the board.
12(c) The board shall issue monthly a list of registrations filed
13under this article during the preceding calendar month. This list
14shall contain the information required by paragraphs (1) to (6),
15inclusive, of subdivision (a). The list shall set forth a date prior to
16which an interested person may file a written protest in opposition
17to the approval of a stockpond registration. That date shall
be not
18later than 30 days from the date on which the list is issued. The
19board shall mail the monthly list of registrations filed to a person
20who requests the list.
21(d) Prior to the date set forth on the list required under
22subdivision (c), an interested person may file with the board a
23written protest in opposition to the approval of a stockpond
24registration. The protest shall clearly set forth the protestant’s
25objections to the registered use based on interference with prior
26rights. The protest shall be served on the registrant by the protestant
27by mailing a duplicate copy of the protest to the registrant, or
28through service undertaken in another manner determined to be
29adequate by the board. The procedures set forth in Article 1.5
30(commencing with Section 1345) of Chapter 5 shall be used for
31reviewing a protested
registration.
Section 1228.6 of the Water Code is amended to read:
(a) The board shall establish, and may from time to
34time revise, reasonable general conditions to which all
35appropriations, other than small irrigation use, made pursuant to
36this article shall be subject. The conditions shall include, but shall
37not be limited to, the following:
38(1) The appropriation is subject to prior rights.
39(2) All conditions lawfully required by the Department of Fish
40and Wildlife are conditions upon the appropriations.
P10 1(3) Diversion works shall be constructed and water applied to
2beneficial use with due diligence.
3(4) Registration shall be renewed and water use reported
4pursuant to law and to the rules of the board.
5(b) Immediately upon registration pursuant to Section 1228.3,
6renewal of registration pursuant to Section 1228.5, or amended
7registration pursuant to Section 1228.7, the board shall provide
8the registrant with a written document setting forth the conditions
9required by this section, and the perfection and exercise of rights
10acquired pursuant to this article shall at all times be subject to those
11conditions.
12(c) The conditions required by this section shall be deemed
13“terms and conditions” within the meaning of Section 1825 and
14the expression of legislative intent contained in that section shall
15be
applicable thereto. The authority of the board to enforce the
16terms and conditions of permits and licenses to appropriate water,
17and to prevent the unlawful diversion of water, including, but not
18limited to, provisions regarding cease and desist orders and the
19revocation of permits and licenses, shall be applicable to
20appropriations initiated or perfected pursuant to this article.
Section 1229 of the Water Code is repealed.
Section 1229 is added to the Water Code, to read:
(a) The board shall, in consultation with the Department
24of Fish and Wildlife, establish and may from time to time revise,
25reasonable general conditions for small irrigation use. The general
26conditions may include requirements applicable only to specific
27methods of diversion or categories of registration, commensurate
28with the project’s environmental impact. These conditions shall
29include, but shall not be limited to, the following:
30(1) The appropriation shall be subject to prior rights.
31(2) Diversion works shall be constructed and water applied to
32beneficial use with due diligence.
33(3) Registration shall be renewed and water use reported
34pursuant to law and to the rules of the board.
35(4) The conditions required by the Department of Fish and
36Wildlife pursuant to subdivision (b).
37(b) The Department
of Fish and Wildlife shall adopt general
38conditions applicable to the diversion of water required by the
39Department of Fish and Wildlife to comply with the requirements
P11 1in Chapter 6 (commencing with Section 1600) of Division 2 of
2the Fish and Game Code, which may include the following:
3(1) An assessment to avoid potential site-specific impacts on
4fish and wildlife resources.
5(2) Submission of site-specific information.
6(3) Consultation with the Department of Fish and Wildlife
7regarding the findings
of site specific-assessments and information.
8(4) Implementation of additional measures the Department of
9Fish and Wildlife lawfully deems necessary to avoid site-specific
10impacts, identified pursuant to paragraphs (1) to (3), inclusive, on
11fish and wildlife resources.
12(c) (1) It is the intent of the Legislature that the board and the
13Department of Fish and Wildlife adopt general conditions that
14simplify the issuance of registrations in a cost-effective and
15environmentally protective manner, and the regulatory burden of
16complying with the general conditions be commensurate with the
17complexity and type of resources potentially affected by the
18
registration.
19(2) The Department of Fish and Wildlife is not required to adopt
20general conditions for small irrigation use pursuant to this section
21until it determines that funds are available for that purpose.
22(3) The board may continue to approve small irrigation use
23appropriations pursuant to any general conditions in effect pursuant
24to Section 1228.6 or 1229, as each read on December 31, 2016,
25which shall include any conditions lawfully required by the
26Department of Fish and Wildlife, before the adoption of general
27conditions pursuant to this section by the Department of Fish and
28Wildlife.
29(d) The board, no later than June 30, 2017, shall adopt general
30conditions that would permit a registrant to construct a facility that
31would store water for small irrigation use during times of high
32stream flow in exchange for that registrant reducing diversions
33during periods of low stream flow, pursuant to
this section, for the
34following:
35(1) (A) Diversions from coastal streams entering the Pacific
36Ocean and streams entering the San Francisco Bay to off-stream
37storage reservoirs or on-stream storage reservoirs located on stream
38reaches where fish are not present.
P12 1(B) Diversions under this paragraph from watersheds that
2support salmonid fisheries and from drainage areas of one square
3mile or less shall be subject to the following general conditions:
4(i) Diversions from drainage areas greater than 0.50 square miles
5but no more than one square mile shall occur only from November
61 to March 31 of each year and only when stream flow exceeds
7the February median flow at the point of diversion.
8(ii) Diversions from drainage areas greater than 0.25 square
9miles but no more than 0.50 square miles shall occur only when
10stream flow exceeds the February median flow at the point of
11diversion.
12(iii) Diversions from drainage areas 0.25 square miles or less
13may occur without season of diversion or minimum bypass
14requirements.
15(C) No diversion under this paragraph may result in a cumulative
16stream flow depletion at the one square mile drainage that exceeds
1710 percent of the average annual volume of stream flow.
18(2) Diversions from other streams for which, in the judgment
19of the board, the reduction in existing diversions during low flow
20periods will
result in a benefit to fish and wildlife.
21(e) Facilities to store water for small irrigation use adopted
22pursuant to subdivision (d) are subject to the following general
23conditions:
24(1) No water shall be diverted or used under the registration,
25and no construction related to the diversion shall commence, until
26the applicant has obtained and is in compliance with
all necessary
27permits and other approvals required by other agencies.
28(2) Pursuant to Sections 100 and 275 and the common law public
29trust doctrine, all appropriations made under subdivision (d),
30including the method of diversion, purpose of water use, and
31quantity of water diverted, are subject to the continuing authority
32of the board in accordance with law and in the interest of the public
33welfare to protect public trust uses and to prevent waste,
34unreasonable use, unreasonable purpose of use, or unreasonable
35method of diversion of water.
36(3) (A) Diversion of water under the
appropriation is subject
37to prior rights. An applicant may be required to curtail diversion
38or release water stored during the most recent collection season if
39diversion under the appropriation results in injury to holders of
40legal downstream senior water rights.
P13 1(B) If the applicant holds collected water in a reservoir, as
2defined by Section 6004.5, the applicant may be required to bypass
3or release water through, over, or around the dam. If the release
4of the collected water would not effectively satisfy the prior
5downstream water rights, the applicant may be required to
6otherwise compensate the holders of the prior rights for any injury
7caused.
8(4) All appropriations are issued subject to available flows. If
9the source contains treated wastewater, water imported from
10another
stream system, or return flow from other projects, the state
11makes no guarantee that the supply will continue.
12(5) The appropriation does not authorize any act that results in
13the taking of a threatened, endangered, or candidate species, or
14any act that is now prohibited, or becomes prohibited in the future,
15under either the California Endangered Species Act (Chapter 1.5
16(commencing with Section 2050) of Division 3 of the Fish and
17Game Code) or the federal Endangered Species Act (16 U.S.C.
18Section 1531 et seq.).
19(6) The appropriation is subject to the applicable board water
20measurement and reporting regulations.
21(f) The board shall adopt general conditions and, if necessary,
22amend existing general conditions for the registration of small
23irrigation use for purposes not described in subdivision (d) no later
24than June 30, 2018.
25(g) In addition to any fees imposed by the board in
accordance
26with Section 1228.3 and Section 1525, the following fees for small
27irrigation use registrations shall be paid to the Department of Fish
28and Wildlife:
29(1) A registration fee of five hundred dollars ($500).
30(2) A renewal of registration fee of two hundred fifty dollars
31($250).
32(h) Beginning January 1, 2020, the board may periodically adopt
33regulations to update the general conditions specified in this
34section.
35(i) (1) A registration for small irrigation use pursuant to this
36article is not authorized until the board establishes general
37conditions for small irrigation use pursuant to this section.
38(2) The board may establish general conditions for some
39methods of diversion or categories of small irrigation use before
40establishing general conditions for other methods or categories,
P14 1in which case a registration for small irrigation use is authorized
2only for those methods or categories for which the board has
3established general conditions for the protection of instream
4
beneficial uses.
Section 1229.1 of the Water Code is amended to read:
The board may issue and renew registrations on those
7stream segments for which the Director of Fish and Wildlife
8establishes proposed streamflow requirements pursuant to Section
910002 of the Public Resources Code, if the registration includes
10conditions consistent with the proposed streamflow requirements.
O
95