BILL ANALYSIS Ó AB 1704 Page 1 (Without Reference to File) ASSEMBLY THIRD READING AB 1704 (Dodd) As Amended May 31, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Water |11-1 |Levine, Dababneh, |Harper | | | |Dodd, Gordon, | | | | |Cristina Garcia, | | | | |Gomez, Lopez, Medina, | | | | |Olsen, Salas, | | | | |Williams | | | | | | | |----------------+-----+----------------------+--------------------| |Appropriations |15-0 |Gonzalez, Bigelow, | | | | |Bloom, Bonilla, | | | | |Bonta, Calderon, | | | | |Daly, Eggman, Eduardo | | | | |Garcia, Roger | | | | |Hernández, Holden, | | AB 1704 Page 2 | | |Quirk, Santiago, | | | | |Weber, Wood | | | | | | | | | | | | ------------------------------------------------------------------ SUMMARY: Requires the State Water Resources Control Board (SWRCB) to adopt general conditions for small irrigation uses according to certain timelines, and specifies 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, in consultation with DFW, to establish general conditions for small irrigation use. Allows the SWRCB to include in the general conditions requirements that are applicable only to specific methods of diversion or categories of registration commensurate with the project's environmental impact. Requires that the general conditions adopted by the SWRCB include the following: a) That the appropriation is subject to prior rights, b) That diversion works shall be constructed and water applied to beneficial use with due diligence, c) That the registration shall be renewed and water use reported as required by law and SWRCB rules, and AB 1704 Page 3 d) Any general conditions required by DFW to comply with laws regarding streambed alteration agreements. 3)Requires DFW to adopt general conditions for small irrigation uses to address requirements for streambed alteration agreements, but only after DFW determines that funds are available for that purpose. Authorizes the conditions adopted by DFW for small irrigation uses to include all of the following: a) An assessment to avoid potential site-specific impacts on fish and wildlife. b) Submission of site-specific information. c) Consultation with DFW regarding the findings of site specific assessments and information. d) Implementation of additional measures DFW lawfully deems necessary to avoid site-specific impacts on fish and wildlife. 4)States legislative intent that the SWRCB and DFW adopt general conditions to simplify the issuance of registrations in a cost-effective and environmentally protective manner, and that the regulatory burden of complying with the general conditions be commensurate with the complexity and type of resources potentially affected. 5)Authorizes the SWRCB to continue to approve small irrigation use appropriations pursuant to any general conditions in effect on December 31, 2016, including any conditions lawfully required by DFW, before the adoption of general conditions by DFW under this bill. AB 1704 Page 4 6)Repeals a provision 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. 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 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, as specified. b) Diversions from watersheds that support salmonid fisheries and from drainage areas of one square mile or less, subject to additional specified conditions. c) 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. 8)Requires that facilities to store water for small irrigation uses shall be subject to all of the following general conditions: AB 1704 Page 5 a) No water shall be diverted or used 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 uses for purposes other than those described in paragraph 7) above, by no later than June 30, 2018. 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. AB 1704 Page 6 11)Authorizes the SWRCB, beginning January 1, 2020, to periodically adopt regulations to update the general conditions specified in this bill. EXISTING LAW: 1)Requires the SWRCB to establish 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 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 that funds are available for that purpose. FISCAL EFFECT: According to the Assembly Appropriations Committee: 1)Significant annual administrative costs of approximately $4 million [General Fund (GF)] plus $11 million in contract funds (GF) for SWRCB to set general conditions statewide for small irrigation use. 2)Ongoing costs of approximately $2 million (Water Rights Fund) for SWRCB to issue and renew registrations following the development of general conditions. AB 1704 Page 7 3)DFW estimates it will require 31.0 Personnel Years and $4,727,000 (GF) to implement this bill. However, DFW is only required to adopt general conditions if funding is available. 4)Although this bill authorizes fees for DFW, it is unlikely the fee revenues would be sufficient to cover costs. This bill does not provide additional fee authority for SWRCB beyond their existing authority. COMMENTS: This bill requires the SWRCB, in consultation with 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. The SWRCB would be required, by June 30, 2017, to adopt general conditions for some small irrigation uses, and by June 30, 2018, for others. According to the author, this bill facilitates small irrigation use registrations statewide during periods of high stream flow that result in reduction of diversions during periods of low stream flow. The author maintains this bill will assist growers and benefit habitat for fish in our streams and rivers. 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, caused drops in river flows that could be harmful to salmon and other fish. The small irrigation use registration process was created to provide 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 pending water rights applications were for uses of 20 acre-feet per year or less. Creation of a small irrigation registration AB 1704 Page 8 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 northern California coastal streams 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 author of this bill indicates 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 additional conditions and processes imposed by 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, 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. 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 AB 1704 Page 9 conditions for such uses that should accelerate permit processing, especially during times of drought. According to supporters, many wine grape 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. There is currently no registered opposition to this bill as amended. Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0003303