BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1986


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          Date of Hearing:  March 29, 2016


                  ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE


                                 Marc Levine, Chair


          AB 1986  
          (Wilk) - As Introduced February 16, 2016


          SUBJECT:  Water resources:  permit to appropriate:  application  
          procedure


          SUMMARY:  Requires the State Water Resources Control Board  
          (SWRCB) to reissue notices of applications for permits to  
          appropriate water if the SWRCB has not rendered a final decision  
          on the application within 20 years, and reopens the time period  
          for interested persons to file a written protest to the  
          application.   Specifically, this bill:


          1)Requires the SWRCB, if it has not rendered a final  
            determination on an application for a permit to appropriate  
            water within 20 years from the date the application was filed,  
            to issue another notice of application, as prescribed, and  
            mail the notice to the applicant and interested parties.


          2)Requires the applicant to publish and post the notice as  
            prescribed by applicable law.


          3)Authorizes any interested person to file a written protest  
            with the SWRCB against the application within the time frame  
            allowed in the notice or by the SWRCB for good cause.








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          4)Requires the SWRCB to conduct proceedings on the application  
            in accordance with existing law governing hearings on  
            protested applications.  


          EXISTING LAW:


          1)Establishes a process for publication, posting and mailing of  
            public notices of applications to appropriate water.  Requires  
            that notices be published and posted, as specified, and mailed  
            to interested persons.  Authorizes the SWRCB to cancel an  
            application for failure to comply with notice publication and  
            posting requirements.


          2)Authorizes any interested person to file a written protest to  
            an application to appropriate water within the time allowed in  
            the notice of application, or within such further time as the  
            SWRCB for good cause shown may allow.  


          3)Requires a protestant and the applicant to make a good faith  
            effort to resolve the protest within 180 days from the date on  
            which protests are required to be filed, or within such  
            additional time as the SWRCB for good cause may allow.   
            Authorizes the SWRCB to request additional information and to  
            cancel a protest if the information is not provided.


          4)Sets forth procedures for hearings on protested applications  
            for appropriation.  Authorizes the SWRCB to grant or refuse to  
            grant a permit and reject an application after a hearing.  No  
            hearing is necessary on an unprotested application, or if  
            undisputed facts support the permit and there is no disputed  
            issue of material fact, unless the board elects to hold a  
            hearing.    








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          FISCAL EFFECT:  Unknown


          COMMENTS:   This bill would allow interested parties to file a  
          protest to an application to appropriate water that is more than  
          20 years old and on which the SWRCB has not rendered a final  
          decision.


          1)Author's Statement:  The author has introduced this bill to  
            allow community members and other interested parties the  
            opportunity to make a case to state regulators as to why the  
            CEMEX Mine should not be approved.  According to the author,  
            the CEMEX Mine is a mega mine project that would wreak havoc  
            on the environment and quality of life of people in the Santa  
            Clarita Valley.  This bill would allow protests to be filed  
            with the SWRCB to whom the current mine owner's  
            predecessor-in-interest (Transit Mix Cement Company) filed an  
            application in 1991 for a water appropriation permit for the  
            project.  The application requested appropriation of 322  
            acre-feet of water per year from the Santa Clara River for use  
            on the proposed mining site and industrial operations. That  
            application was never acted on by the SWRCB and no hearing was  
            held.  While the SWRCB has essentially suspended activity on  
            the application, the status of the application is still  
            considered active.  By reissuing another notice of application  
            and reopening the protest period, this bill will provide an  
            opportunity for interested persons to highlight concerns  
            regarding the project in order to protect water supply, air  
            quality and other environmental and quality of life issues in  
            the region.  The author notes that the Santa Clara River is  
            the last natural river in Southern California, and that with  
            the recent drought and the passage of over 25 years since the  
            application was initially filed, the dynamics of water  
            availability in the region have changed significantly and  
            should be taken into consideration. 









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          2)Background:  Background information provided by the author  
            indicates that in 1990 the Bureau of Land Management (BLM)  
            issued two 10-year contracts to mine 56 million tons of  
            aggregate from a site near Soledad Canyon and the 14 Freeway.   
            The current owner of the proposed mine site is CEMEX.  In  
            August of last year, the BLM announced that the contracts,  
            held for more than 25 years but never acted on, had been  
            cancelled.  However, CEMEX has appealed that decision.  As  
            stated above, CEMEX's predecessor in interest filed an  
            application with the SWRCB in 1991 to appropriate 322  
            acre-feet of water per year from the Santa Clara River for use  
            on the mine site.  The SWRCB never acted on the application  
            which is still pending and could be reactivated.  If the  
            application were reactivated, the time period for filing of  
            protests has long passed. 


            This bill would require publication of a new notice of  
            application, and would reopen the protest period and related  
            administrative processes.  The author indicates that this will  
            allow members of the community to make a case with state  
            regulators as to why the mine and associated application to  
            appropriate water for the project should be denied.



            While the author's intent with this bill is focused on  
            re-noticing and reopening the protest period for a particular  
            application for appropriation of water, this bill as  
            introduced would apply to all applications for a permit to  
            appropriate water that are more than 20 years old and have not  
            been acted on by the SWRCB.  The SWRCB indicates that it has a  
            significant and continuing backlog of hundreds of water rights  
            applications.  Of those, 80 applications have been pending for  
            over 20 years.  The backlog, according to the SWRCB, is due  
            both to the extensive amount of process that is required by  
            the Water Code for water rights permits, unresolved protests,  
            and a shortage of staffing in the SWRCB's Division of Water  








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            Rights, as well as prioritization of efforts to respond to the  
            recent emergency state of drought.  The SWRCB submitted a  
            Budget Change Proposal for Fiscal Year 2016-17 requesting 7  
            new positions and $851,000 from the Water Rights Fund to  
            process applications to appropriate water permits and  
            registrations, petitions to change existing water rights,  
            wastewater change petitions, and licensing of water rights.   
            The SWRCB indicates this augmentation would help address the  
            significant backlog, and allow water users to maximize  
            beneficial use of water to enhance drought resilience while  
            also protecting the public trust. 
          3)Prior and related legislation:  The Water Code Sections  
            governing the procedures for applications for permits to  
            appropriate water and protests thereof have not been  
            substantively amended since 1997 (see SB 849, Chapter 323,  
            Statutes of 1997).


            AB 763 (Berryhill) of 2011 proposed to allow any person who  
            files an application to appropriate water, or who files a  
            protest to an application, to seek a pre-decisional review by  
            a member of the SWRCB or an Administrative Law Judge before  
            the SWRCB takes a final action.  AB 763 died in this  
            committee.


          4)Support Arguments:  Supporters note that while this bill is  
            directed at one facility in particular, it is sensible to  
            allow the public to review an application after 20 years, as  
            new information, especially on how climate change is affecting  
            hydrology, can change perception about a project and its  
            impacts.


          5)Opposition Arguments:    The Association of California Water  
            Agencies expresses concern about the broad application of this  
            bill to water rights applications statewide, and the potential  
            for this bill to hinder administration of water rights  
            applications and slow the application approval process.








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          6)Suggested Amendments:  In order to accomplish the author's  
            intent, while at the same time avoid undesirable consequences  
            or unnecessary fiscal costs that might be associated with  
            reopening the protest period for all applications over 20  
            years old, the attached amendments are suggested to narrow the  
            applications to which this bill would apply.  Specifically,  
            the amendments would exclude applications that have already  
            been canceled or denied, for which a new notice and  
            opportunity to protest has been provided in the past five  
            years, and for which the SWRCB has already agreed to hold a  
            hearing and allow interested parties to participate.  The  
            amendments would also move the location of the language in the  
            code to the existing article on notices. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Sierra Club California




          Opposition


          Association of California Water Agencies




          Analysis Prepared by:Diane Colborn / W., P., & W. / (916)  








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          319-2096