BILL ANALYSIS Ó
AB 1986
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Date of Hearing: April 12, 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 unintended 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)
AB 1986
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319-2096