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