BILL ANALYSIS Ó
AB 1704
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1704
(Dodd) - As Amended March 16, 2016
SUBJECT: Water rights
SUMMARY: Requires the State Water Resources Control Board
(SWRCB) to adopt general conditions for small irrigation use
according to certain timelines, and would specify some of the
conditions. Specifically, this bill:
1)Modifies the information to be included in a registration of
water use for appropriation of water to include a
certification that the registrant has provided a copy of the
registration form to the Department of Fish and Wildlife (DFW)
and agrees to comply with the general conditions applicable.
Requires that the registration form include instructions for
complying with those conditions.
2)Requires the SWRCB to consult with the DFW in establishing
general conditions for water appropriations for small
irrigation uses.
3)Requires the general conditions to include conditions required
by the DFW to comply with laws regarding streambed alteration
agreements.
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4)Allows the general conditions to include requirements
applicable only to specific methods of diversion or categories
of registration, commensurate with the project's environmental
impact. Specifies that such requirements may include, but are
not limited to, an assessment to avoid potential
site-specific impacts on fish and wildlife resources, and
submission of site-specific information.
5)States that it is the intent of the Legislature that the SWRCB
and DFW adopt general conditions that simplify the issuance of
registrations in a cost-effective and environmentally
protective manner, and that the regulatory burden of complying
with the general conditions will be commensurate with the
complexity and number of resources potentially affected by the
registration.
6)Repeals provisions of existing law providing that the SWRCB
does not need to adopt general conditions for small irrigation
use until the SWRCB determines that funds are available for
that purpose, prohibiting registrations for small irrigation
use from being authorized until the SWRCB adopts general
conditions to protect instream beneficial uses, and allowing
the SWRCB to adopt general conditions for some methods or uses
before others.
7)Requires the SWRCB no later than June 30, 2017, to adopt
general conditions that would permit a registrant to construct
facilities to store water for small irrigation use during
times of high stream flow in exchange for the registrant
reducing existing diversions during periods of low stream
flow, for all of the following:
a) Diversions from coastal streams entering the Pacific
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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. No diversion under this paragraph may result in
cumulative stream flow depletion at the one-square mile
drainage that exceeds 10 percent of the average annual
volume of stream flow. 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 one-half square mile 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 one-quarter square mile but no
more than one-half square mile, shall occur
only when stream flow exceeds the February
median flow at the point of diversion;
iii. Diversions from drainage areas
one-quarter square mile or less may occur
without season of diversion or minimum bypass
requirements.
b) Diversions from other streams for which, in the
judgment of the SWRCB, the reduction in existing
diversions during low flow periods will result in a
benefit to fish and wildlife.
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8)Requires that facilities to store water for small irrigation
uses shall be subject to all of the following general
conditions:
a) No water shall be diverted or used under the
registration and no construction shall commence until the
applicant has obtained and is in compliance with all
necessary permits and approvals required by other
agencies;
b) All appropriations, including the method of
diversion, purpose of use, and quantity of water
diverted, are subject to the continuing authority of the
SWRCB to protect the public trust and prevent waste and
unreasonable use.
c) Diversion of water under appropriation is subject to
prior rights, and applicants may be required to
compensate downstream holders of prior rights for any
injury caused by releases.
d) The appropriations are subject to available flows.
e) The appropriations do not authorize take of species
protected under state or federal endangered species acts.
f) The appropriations are subject to applicable SWRCB
water measurement and reporting regulations.
9)Requires the SWRCB to adopt general conditions for
registration of small irrigation use for purposes other than
those described in 7) above by no later than June 30, 2018.
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10)Requires that a registration fee of $500, and a renewal
registration fee of $250, be paid to the DFW for small
irrigation use registrations.
11)Authorizes the SWRCB to issue and renew registrations for
stream segments for which the DFW establishes proposed
streamflow requirements under Section 10002 of the Public
Resources Code (which requires DFW to identify and list those
streams and watercourses throughout the state for which
minimum flow levels need to be established in order to assure
the continued viability of stream-related fish and wildlife
resources) if the registration includes conditions consistent
with the proposed streamflow requirements, and strikes a
provision of existing law that prohibits new registrations for
small irrigation uses from being approved for streams for
which DFW establishes proposed instream flow requirements.
EXISTING LAW:
1)Requires the SWRCB to establish reasonable general conditions
to which all registrations of appropriations for Small
Domestic, Small Irrigation, and Livestock Stock pond Uses
shall be subject. Requires that the conditions include that
the appropriation is subject to prior rights, that all
conditions lawfully required by the DFW are conditions of the
appropriation, that diversions be constructed and water
applied to beneficial use with due diligence, and that the
registration be renewed and water use reported pursuant to law
and rules of the SWRCB.
2)Provides that the SWRCB is not required to adopt general
conditions for small irrigation use until the SWRCB determines
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that funds are available for that purpose.
3)Prohibits a registration for small irrigation use from being
authorized until the SWRCB establishes general conditions for
small irrigation use. Authorizes the SWRCB to establish
general conditions for some methods of diversion or categories
of small irrigation use before others.
FISCAL EFFECT: Unknown
COMMENTS: This bill requires the SWRCB, by a specified date and
in consultation with the DFW, to adopt general conditions for
registrations to divert and store water for small irrigation
uses, and specifies in statute what some of the conditions shall
be.
1)Author's Statement: This bill modifies current law pertaining
to conditions for registrations of small irrigation ponds by
enabling the SWRCB to jointly develop general conditions with
the DFW, and requiring the registrant to demonstrate
compliance with these general conditions. This bill also
facilitates small irrigation use registrations statewide
during periods of high stream flow that result in the
reduction of existing diversions during periods of low stream
flow. This bill is a measure that will assist growers and
benefit habitat for fish species in our streams and rivers.
2)Background: The small irrigation registration process was
created by AB 964 (Huffman), Chapter 579, Statutes of 2011, in
response to resource conflicts that were occurring when
sprinklers used to protect vineyards against frost were
creating simultaneous water demands that, when combined with
other water uses, were causing drops in river flows that could
be harmful to salmon and other fish. The small irrigation use
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registration process was created in order to create an
expedited water right for a pond that stores less than 20
acre-feet annually so that a vineyard could draw from its pond
for frost protection instead of directly from the stream.
However, the bill was not limited to frost protection uses.
The SWRCB at that time identified that one quarter of its
currently-pending water rights applications were for uses of
20 acre-feet per year or less. Therefore, creation of a small
irrigation registration process was expected to streamline
permitting for some of those small irrigation uses and help
the SWRCB eliminate some of its water right permitting
backlog.
In addition to DFW's ability under existing law to impose
project-specific terms and conditions on water registrations,
AB 964 required the SWRCB to develop general conditions that
protect in-stream beneficial uses before the small irrigation
registration process may be used. AB 964 allowed the SWRCB to
develop general conditions for some areas or uses before
others but mandated that the SWRCB develop general conditions
for frost protection uses in the northern California coastal
stream area by June 30, 2012, unless the SWRCB determined it
had insufficient funds for that purpose. On July 25, 2012,
the SWRCB approved an initial set of general conditions for
Small Irrigation Use registrations.
The conditions were developed by the SWRCB's Division of Water
Rights staff in consultation with a stakeholder group that
included representatives from DFW, Trout Unlimited, the Wine
Institute, the California Association of Wine Grape Growers
and others.
The author and sponsors of this bill indicate that although
the SWRCB did adopt general conditions for small irrigation
use registrations for purposes of frost protection in the
north coast region, registrants still needed to comply with
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additional conditions and processes imposed by the DFW. The
information that was required by DFW to be included for a
successful application was not always clear to the applicant,
and registrations still were being reviewed and acted upon by
the DFW on a case by case basis. As a result, according to
the sponsors, many of the proposed registrations were not
acted upon in a timely manner due in part to limited staff
resources at DFW, and to a lack of information as to what
should be included in the application. In addition, the
author and sponsors of this bill object to a provision in the
existing law that prohibits new small irrigation use
registrations from being issued for diversions from streams
for which DFW recommends instream flow requirements. Instead,
this bill would allow the registrations to be issued for such
streams if the registration includes conditions that are
consistent with the proposed streamflow requirements.
The author and sponsors indicate that this bill is a work in
progress, and that the author is committed to continuing to
work with the SWRCB and the DFW to address concerns with this
bill. Among other things, the SWRCB is concerned that the
timeframe of June 30, 2017 is an insufficient length of time
to complete the process of establishing general conditions.
Concerns have also been raised regarding the deletion of
existing provisions of the law that protect public trust
resources by requiring that general conditions be established
before registrations for small irrigation use are approved,
and that allow the SWRCB to establish general conditions for
some methods of diversion or categories of use before others.
In addition, concerns have also been raised regarding the
need to preserve the authority of DFW to impose additional
site-specific conditions where necessary to protect fish and
wildlife. Committee amendments are proposed (described below)
to address these issues.
3)Prior or Related Legislation: AB 964 (Huffman), Chapter 579,
Statutes of 2011, authorized any person to obtain a right to
appropriate water for a small irrigation use, as defined by
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the bill, upon registering the use with the SWRCB and applying
the water to reasonable and beneficial use with due diligence.
AB 964 provided that the SWRCB is not required to adopt
general conditions applicable to appropriations for small
irrigation use until the board determines that funds are
available for that purpose. AB 964 also required the SWRCB,
prior to adopting other general conditions for small
irrigation use, and no later than June 30, 2012, to adopt
general conditions for small irrigation use for facilities
used for frost protection with respect to specified north
coast streams.
AB 1244 (Gray) of this Session would require the SWRCB, when
adopting general conditions, to consult with the Department of
Food and Agriculture and the University of California
Cooperative Extension, regarding relevant agricultural
information, and with DFW regarding potential impacts on fish
and wildlife species, for small irrigation use. AB 1244 is
pending in the Senate Natural Resources & Water Committee.
SB 798 (Committee on Natural Resources & Water), Chapter 683,
Statutes of 2015, deleted an obsolete provision of the law
added by AB 964, which required the SWRCB, prior to adopting
general conditions for other small irrigation uses and no
later than June 30, 2012, to adopt general conditions for
small irrigation use for facilities used for frost protection
with respect to specified north coast streams. The SWRCB
adopted those conditions.
4)Support Arguments: Supporters emphasize that rural water
users have opportunities to change water use practice in ways
that can benefit threatened and endangered fish species in
critically dry years. However, in some cases, landowners who
are willing to make such changes are unable to do so due to
delays in the approval process for small irrigation uses.
This bill would establish general conditions for such uses
that should accelerate permit processing, especially during
times of drought. According to supporters, many wine grape
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growers would like to reduce diversions during the warm
weather irrigation season by obtaining rights to store water
during peak flow winter months in small on-farm storage ponds,
but obtaining permits for such small irrigation storage ponds
has been difficult. Supporters also express support for the
provisions in this bill that would require the DFW to propose
general conditions, and to make such permits available
statewide.
5)Opposition Arguments: The Sierra Club opposes this bill
unless amended to clarify DFW's authority to address
site-specific conditions, and other clarifications. Concerns
have been raised regarding the deletion in this bill of
provisions in the existing law which do three things: 1)
provide that a registration for small irrigation use is not
authorized until the SWRCB establishes general conditions for
that use; 2) authorize the SWRCB to establish general
conditions for some methods and uses before others; and 3)
provide that the SWRCB is not required to adopt general
conditions if it does not have funds available to do so. The
SWRCB has also indicated that the deadline of June 30, 2017
for completion of general conditions is impractical and that
additional time will be needed. The author and sponsors have
expressed an openness to consider a reasonable extension of
time, in addition to other amendments.
6)Suggested Committee Amendments: This bill seeks to
facilitate, expedite and expand approval of registrations for
water diversions for small irrigation storage ponds by
establishing a date certain by which the SWRCB must adopt
general conditions for certain diversions, and by requiring
the SWRCB and the DFW to work together in establishing the
conditions. This bill also codifies a considerable level of
detail as to what must be included in the conditions. Because
conditions and trends can change over time, particularly with
climate change impacts and cyclical droughts, an argument can
be made that this level of detail would be better left to the
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SWRCB and DFW to determine based on conditions, rather than
being codified in statute. In order to facilitate future
modifications where necessary, committee staff recommends that
an amendment be taken to allow the SWRCB to modify these
details in the future through regulation.
Secondly, this bill deletes the existing requirement in law
that a registrant must comply with other lawful conditions
required by the DFW. The deletion of this language could be
interpreted as precluding the DFW from requiring additional
site-specific conditions where necessary to protect fish and
wildlife. The sponsors have indicated it is not their intent
to diminish the authority of DFW but rather to clarify what
should be included in the registration regarding site specific
details in order to expedite the process. Committee staff
therefore recommends that amendments be added to clarify DFW's
continuing authority to impose site specific conditions in
addition to general conditions where necessary to protect fish
and wildlife.
Third, this bill deletes existing language clarifying that
registrations for small irrigation use are not authorized
until the SWRCB establishes general conditions, and clarifying
that the SWRCB may establish general conditions for some
methods of diversion or categories of small irrigation use
before others. Committee staff recommends that amendments be
adopted to reinstate these provisions.
The suggested committee amendments to address these issues are
as follows:
Amend Section 1228.6(a)(1)(B) to read:
(B) General conditions shall be applicable to the diversion of
water as required by the Department of Fish and Wildlife to
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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, both 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 on fish and wildlife resources
identified in paragraphs (i), (ii) or (iii).
Add a new subdivision (d) to Section 1229 to read:
(d) The board may periodically adopt regulations to
update the general conditions specified in this section,
beginning on January 1, 2020.
Add a new subdivision (e) to Section 1229 as follows:
(e) (i) 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 or this section.
(ii) The board may establish general conditions for some
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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.
REGISTERED SUPPORT / OPPOSITION:
Support
Association of California Water Agencies
California Association of Winegrape Growers (Co-sponsor)
Sonoma County Water Agency
Wine Institute (Co-sponsor)
Opposition
Sierra Club California (unless amended)
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Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096