BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1704 (Dodd) - Water rights: small irrigation use: lake or
streambed alteration agreements
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|Version: June 20, 2016 |Policy Vote: N.R. & W. 8 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Narisha Bonakdar |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1704 requires the State Water Resources Control
Board (SWRCB) in consultation with the California Department of
Fish and Wildlife (CDFW) to adopt general conditions for
registrants to divert and store water for small irrigation uses,
as specified.
Fiscal Impact: According to the SWRCB and the CDFW, this bill
will result in significant costs, likely in the tens of millions
(General Fund), as indicated below. (See staff comments).
Approximately $3 million annually for about 10 years for SWRCB
to develop general conditions.
A total of $11 million in contract funds to SWRCB associated
with the California Environmental Quality Act (CEQA)
activities.
Approximately $2 million for CDFW to work with SWRCB to
develop general conditions specific to the protection of fish
and wildlife.
Unknown, but significant costs, potentially in the low
millions to CDFW to review and approve additional permit
applications.
AB 1704 (Dodd) Page 1 of
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Background:
Under current law, individuals intending to appropriate water
from state streams and rivers must file an application to
appropriate water with the SWRCB. The water must be put to
reasonable and beneficial use, and is subject to limitations
based on available water and water rights that have already been
established. Current law provides for a simplified process for
individuals that seek a registration to appropriate water for
small domestic use or livestock stockpond use, provided that 1)
the water is put to beneficial use, 2) there is sufficient water
available, and 3) the maximum diversion is less than 4,500
gallons per day or for storage of less than 10 acre-feet per
year.
Individuals are required to pay fees to the SWRCB to cover the
costs of regulating water rights issues. When applications to
appropriate water are made, the SWRCB is the lead agency for any
environmental review required under the California Environmental
Quality Act (CEQA).
Also under current law, applications to divert water may trigger
the need for a Lake and Streambed Alteration Agreement (LSA)
from the Department of Fish and Wildlife (CDFW), depending on
the size, nature, and potential impacts of the diversion. Under
current practice, if CDFW needs to issue an LSA, it relies on
the environmental analysis performed by the SWRCB.
AB 964 (Huffman) authorized the registration of diversions for
"small irrigation use" which is defined as water used for
irrigation uses, heat control, and frost protection. Diversions
may not exceed 42,000 gallons per day or for storage of more
than 20 acre-feet per year. The bill also required the SWRCB to
develop conditions for small irrigation use before any
registrations can be made.
Currently small irrigation use registrations are only available
in a small part of the state. According to CDFW, the general
conditions were largely based on existing science. The CDFW has
only received a small amount of applications for small
irrigation use registrations and is able to approve complete
most applications within two months.
AB 1704 (Dodd) Page 2 of
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Proposed Law:
This bill:
1)Requires the CDFW, for proposed, renewal, or amended
registration (registration) of water use, to (1) determine
whether the registration is complete and (2) propose any
lawful conditions.
2)States legislative intent to simplify and reduce the
regulatory burden for activities that require notification
and the registration of water
3)Requires the SWRCB 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 that registrant reducing diversions during
periods of low streamflow, as follows:
a. For diversions from coastal streams entering the
Pacific Ocean and streams entering the San Francisco Bay
for the following:
i. Off-stream storage reservoirs.
ii. On-stream storage reservoirs located on
stream reaches where fish are not present.
b. For diversions from streams not described above
that, in the SWRCB's judgment, the reduction in existing
diversions during low flow periods will result in a
benefit to fish and wildlife.
4)On or before June 30, 2019, the SWRCB shall adopt general
conditions and, if necessary, amend existing general
conditions for the registration of small irrigation use for
purposes not described in subdivision (d).
5)Authorizes the SWRCB to issue and renew a registration for
which the SWRCB has adopted streamflow requirements if the
registration includes conditions consistent with the
applicable streamflow requirements.
AB 1704 (Dodd) Page 3 of
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Related
Legislation:
AB 964 (Huffman) authorized the registration of diversions for
"small irrigation use" which is defined as water used for
irrigation uses, heat control, and frost protection. Diversions
may not exceed 42,000 gallons per day or for storage of more
than 20 acre-feet per year. The bill also required the SWRCB to
develop conditions for small irrigation use before any
registrations can be made.
SB 837 (Committee on Budgets, Chapter, Statutes of 2016), among
other things, outlines requirements for water diversions
associated with marijuana cultivation.
Staff
Comments:
Purpose. This bill intends to streamline the current permitting
process. According to the sponsor, "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."
As noted by the Senate Natural Resources and Water Committee,
while there is general agreement that the current process is
less than ideal. This bill focuses mostly on trying to speed up
CDFW's streambed alteration permitting process. Another view
might be that there are significant and unique site specific
AB 1704 (Dodd) Page 4 of
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issues associated with small irrigation use that are not easily
resolved.
Additionally, this bill would require the SWRCB to 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. The CDFW indicates that it would also have to develop
general conditions for small irrigation uses, if the SWRCB's
general conditions do not include measures to protect fish and
wildlife resources, or are not protective under all
circumstances. This bill would give each entity about a year to
develop and adopt those general conditions. This is a very
short timeline given that adopting such conditions would require
significant scientific analysis and would need to comply with
CEQA.
Both the SWRCB and CDFW developed fiscal estimates based on
their respective experiences with implementation of AB 964.
This bill will invariably result in significant up-front costs
to develop the general conditions. Ongoing costs will be based,
in part, on the number of applications. It is unclear how the
process outlined in the bill will address concerns with the
current streamlined process, and consequently how much it will
increase demand for the program.
According to CDFW, this bill poses workload in two different
permitting areas: water rights and lake and streambed alteration
(LSA).
Funding the water rights workload with permit-related revenue
like LSA fees would not be appropriate and the current water
rights fees do not support the level of effort required of CDFW
to develop lawful terms and conditions on small irrigation use
registrations. Positions and funding will be needed to perform
these tasks. Water diversion/water registration workload
requires an inordinate amount of staff time compared to other
permitting activities like stream crossings and vegetation
removal projects. Water diversion projects involve continuous
or long-duration activities (i.e. near-constant water withdrawal
and site maintenance) that often require multiple site visits
spread over the five year permit period. In addition,
environmental analyses required for water diversion projects are
often onerous, usually involving multiple stream flow
AB 1704 (Dodd) Page 5 of
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measurements conducted before and during active water diversion.
The higher risk associated with many water diversion projects
also requires an increase in initial habitat assessment and
on-going implementation and effectiveness monitoring.
Under the existing fee structure, the LSA program is notably
underfunded and has been directed to undertake a $640,000
reduction for FY 16/17.
The SWRCB relies on the Department to develop public trust
conditions for water rights, including small irrigation use
registrations. The time involved for the Department to develop
project-specific terms and conditions on registrations to ensure
protection of fish and wildlife is significant. Registrations
are renewed every 5 years and terms or conditions may need to be
adjusted on an ongoing basis as new information becomes
available or additional impacts occur. This requires collection
of data and potential revision of lawful terms and conditions on
an ongoing basis.
State mandate. This bill constitutes a state mandate. However,
under the California Constitution, costs associated legislation
defining a new crime or changing an existing definition of a
crime are not reimbursable.
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