BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
                             Senator Fran Pavley, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 1704         Hearing Date:    June 28,  
          2016
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          |Author:    |Dodd                   |           |                 |
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          |Version:   |May 31, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Dennis O'Connor                                      |
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                               Subject:  Water rights


          BACKGROUND AND EXISTING LAW
          
          Under current law, any person may obtain a right to appropriate  
          water for a small domestic, small irrigation, or livestock  
          stockpond use by registering the use with the State Water  
          Resources Control Board (state board) and then putting the water  
          to reasonable and beneficial use, subject to certain conditions.  
           

          One of the conditions requires the registration to include a  
          certification that the registrant has contacted a representative  
          of the Department of Fish and Wildlife (DFW) and has agreed to  
          comply with conditions set forth by DFW in what is often  
          referred to as a section 1602 or "streambed alteration" permit.   
          These permits establish the conditions under which a permittee  
          may "substantially divert or obstruct the natural flow of, or  
          substantially change or use any material from the streambed."

          Current law also requires the state board to establish general  
          conditions to which all appropriations of water for small  
          domestic, small irrigation, and livestock stockpond use are  
          subject.  The Board adopted the general conditions for small  
          irrigation use registrations on 9/20/13 and for small domestic  
          and livestock stockpond uses on 1/27/14.

          PROPOSED LAW







          AB 1704 (Dodd)                                          Page 2  
          of ?
          
          
          
          This bill would:

          1.Provide that for a proposed registration, renewal of  
            registration, or amended registration of water use for a small  
            domestic, small irrigation, or livestock stockpond, DFW's  
            review and establishment of conditions on the appropriation of  
            water for that stockpond would be as follows:
                 DFW would determine if the notification is complete in  
               accordance with the Permit Streamlining Act.
                 DFW would propose any lawful conditions on the  
               registration in a draft agreement.
                 Any conditions on a registration that are included in a  
               final agreement would be deemed conditions on the water  
               rights.

          1.Require the state water board, by 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 stream flow in exchange for that  
            registrant reducing diversions during periods of low stream  
            flow, pursuant to this section, for the following:
                 Diversions from coastal streams entering the Pacific  
               Ocean and streams entering the San Francisco Bay for  
               off-stream storage reservoirs and on-stream storage  
               reservoirs located on stream reaches where fish are not  
               present.
                 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.

          1.Further require the state water board, by June 30, 2019, to  
            adopt general conditions and, if necessary, amend existing  
            general conditions for the registration of small irrigation  
            use for purposes not described above.

          2.Clarify provisions regarding the application of the stockpond  
            registration provisions in the Water Code concerning stream  
            segments for which the Director of DFW has established minimum  
            streamflow requirements.

          ARGUMENTS IN SUPPORT
          








          AB 1704 (Dodd)                                          Page 3  
          of ?
          
          
          According to the author, "In 2011, AB 964 was enacted to create  
          a program whereby growers could obtain a temporary water right  
          to divert water into small irrigation ponds.  The purpose of  
          this measure was to ease the burden of obtaining authorization  
          for these projects, as they provide significant environmental  
          benefits by allowing growers to divert water during high stream  
          flows and avoid such diversions during low stream flows.  This  
          both enhances growers' water security, and protects natural  
          resources."  

          "Unfortunately, since the bill's enactment, very few  
          registrations have been processed.  The principal reason  
          identified for this was that the still-burdensome process of  
          obtaining these rights has led growers to conclude that the  
          program is not worth applying for vs. the more durable right  
          that can be obtained through the more traditional water right  
          process.  This bill aims to make the registration process more  
          user-friendly for growers in order to encourage these beneficial  
          projects."

          ARGUMENTS IN OPPOSITION: None Received

          COMMENTS
          
           AB 964 (Huffman, 2011).   The genesis of the small irrigation  
          registration program was the significant drop in streamflow in  
          the Russian River that occurred when sprinklers used to protect  
          vineyards against frost kicked on.  The jump in water demand for  
          the sprinklers in addition to usual demands on the river lead to  
          insufficient streamflow for salmon and other fish.  

          The small irrigation use 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 state board 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  
          state board eliminate some of its water right permitting  
          backlog.









          AB 1704 (Dodd)                                          Page 4  
          of ?
          
          
           So Far, Results Are Disappointing.   There is general agreement  
          that the current process is less than ideal.  Applications are  
          not nearly as high as expected when AB 964 was enacted.

           The Question Is Why.   This bill focuses mostly on trying to  
          speed up DFW's streambed alteration permitting process.  Another  
          view might be that there are significant and unique site  
          specific issues associated with small irrigation use that are  
          not easily resolved, and so folks simply had unrealistic  
          expectations in the first place.

           Timing May Be Problematic.   The bill would require that by  
          January 1, 2018, the state board adopt general conditions for  
          facilities 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.  This  
          would give the state board a year, give or take a few months, to  
          develop and adopt those general conditions.  This is a very  
          short timeline given that to adopt such conditions the state  
          board would need to comply with CEQA.

          SUGGESTED AMENDMENTS: None 
          
          SUPPORT
          Wine Institute (Sponsor)
          Association of California Water Agencies
          California Association of Winegrape Growers
          California Chamber of Commerce
          Sonoma County Water Agency
          Trout Unlimited
          
          OPPOSITION:
          None Received

          
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