BILL ANALYSIS
SB 229
Page 1
PROPOSED CONFERENCE REPORT NO. 1 - September 9, 2009
SB 229 (Pavley)
As Amended July 9, 2009
Majority vote
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|SENATE: | |(June 3, 2009) |ASSEMBLY: | |(July 13, |
| | | | | |2009) |
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(vote not relevant) (vote not relevant)
SENATE CONFERENCE VOTE : 4-0 ASSEMBLY CONFERENCE VOTE :4-0
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|Ayes:|Steinberg, Pavley, |Ayes:|Bass, Caballero, Huffman, |
| |Padilla, Florez | |Solorio |
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| | | | |
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Original Committee Reference: W., P. & W.
SUMMARY : Revises existing water use reporting requirements,
provides for water rights enforcement, and establishes a statewide
groundwater elevation monitoring program. Specifically, the
conference committee amendments
1)Increase consequences for not reporting water diversions or use.
a) Deem diversions/use did not occur in certain State Water
Resources Control Board (SWRCB) proceedings, but would not
apply to diversion/use occurring before January 1, 2009;
b) Create rebuttable presumption that no use occurred in
certain SWRCB proceedings, but would not apply to
diversion/use occurring before January 1, 2009;
c) Raise current additional penalty for unauthorized
diversions from 100% of amount of fees that would have been
collected had that diversion been reported, to 150%;
d) Authorize additional penalty for failing to file, or
material statements in, statements of diversion and use of
150% of the amount of fees that would have been collected;
and,
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e) Add a new penalty for violators of monitoring requirements
or activities, not to exceed five hundred dollars ($500) for
each day in which the violation occurs.
2)Impose or increase penalties for violating water rights laws.
a) Increase penalties for unauthorized diversion or use to
sum of $1,000 per day of violation plus $1,000 per acre foot
diverted in violation;
b) Increase penalties for violating a cease and desist order
to not more than sum of $2,500 per day plus $2,500 per acre
foot diverted in violation;
c) Add penalty, not to exceed $500 per day of violation, for
any violation of term or condition of a permit, license,
certificate, or registration, or any order or regulation
adopted by SWRCB under preventing waste or unreasonable use;
and,
d) Require SWRCB to adjust all maximum penalties for
inflation as measured by the June to June change in the
California CPI.
3)Expand SWRCB water right enforcement authority.
a) Allow SWRCB, in certain investigations, to order any water
diverter or water user to prepare technical or monitoring
program reports under penalty of perjury;
b) Add the following to the list of actions that SWRCB can
issue a cease and desist order:
i) violations of unreasonable use regulations; and,
ii) violations of reporting or monitoring requirements.
c) Expand existing legislative intent language to encourage
vigorous enforcement to prevent the waste and unreasonable
use and reporting/monitoring requirements.
4)Expand list of filing fees, to include: registrations for small
domestic use or livestock stockpond use; petitions to change the
point of diversion, place of use, or purpose of use of a water
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right that is not subject to a permit or license to appropriate
water; and statements of water diversion and use.
5)Authorize SWRCB to initiate statutory adjudication to determine
rights of various claimants to the water of a stream system
under its own motion if after a hearing it finds that the public
interest and necessity will be served by a determination of the
rights involved
6)Authorize SWRCB to issue an interim relief order, after notice
and an opportunity for a hearing, to enforce specified laws.
a) Require SWRCB in deciding on the nature and extent of the
relief, to consider all relevant circumstances, using
standards required for a preliminary injunction;
b) Authorize SWRCB, as part of the interim relief order, to
require the water diverter or user to take specified actions,
including cease and reimburse SWRCB expenses;
c) Exempt interim relief order from CEQA if SWRCB makes
specific findings;
d) Require the Attorney General, upon the request of SWRCB,
to petition the superior court to issue a temporary
restraining order, preliminary injunction, or permanent
injunction should any water diverter or user fails to comply
with any part of an interim relief order; and,
e) Provide for civil penalty of not more than $5,000 for each
day in which a violation occurs, subject to certain
procedural requirements.
7)Establish statewide groundwater monitoring program that would:
require.
a) Local groundwater management interests to notify DWR as to
who would conduct the monitoring of groundwater elevations,
what area they would monitor, their qualifications for
conducting the monitoring, etc.;
b) DWR, in situations where more than one party seeks to
become the monitoring entity for the same portion of a basin
or subbasin, to consult with interested parties to determine
who would monitor, based on certain priorities;
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c) Monitoring entities to start monitoring and reporting
groundwater elevations by January 1, 2012, and made readily
available to DWR, interested parties, and the public;
d) DWR, by January 1, 2012, to identify extent of monitoring
within each basin and subbasin, requiring DWR to determine,
in basins without monitoring, if there was a local party
willing to conduct the monitoring;
e) DWR to determine, in basins without local interest in
monitoring, certain facts as to need for monitoring, and then
monitor groundwater elevations in critical basins, assessing
fee on well owners to recover direct costs; and,
f) DWR to update the groundwater report by January 1, 2012,
and thereafter in years ending in 5 and 0.
EXISTING LAW requires SWRCB to administer and enforce surface
water rights.
AS PASSED BY THE SENATE , this bill changed the structure and
duties of the California Water Commission, relating to the
Sacramento-San Joaquin Delta.
The Assembly amendments eliminated substantive provisions and
stated legislative intent regarding the Delta.
FISCAL EFFECT : Unknown
COMMENTS : This bill has evolved through several transformations,
but all related to California water policy, as part of this year's
legislative effort to address the recommendations of the Delta
Vision Process. This bill implements the Delta Vision Cabinet
Committee's recommendations regarding water rights reporting and
enforcement.
Failing to File : This bill significantly increases consequences
for not filing required reports on diversion and use, in order to
increase compliance. State law has required such reports for
decades, but many diverters do not comply, because penalties for
non-compliance are minimal. In short, it may make more economic
sense to pay a small fine - if the violator is ever discovered -
than file the required reports.
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The Delta Vision Strategic Plan, while not speaking directly on
increased consequences for failing to file required reports, did
say:
The information about current diversions and use in the
current water system is inadequate to the task of
managing the co-equal values. More comprehensive data
from throughout the Delta watershed would provide a
better foundation for changes in water diversion timing.
California must also develop and use comprehensive
information on the local, regional and statewide
availability, quality, use, and management of
groundwater and surface water resources to help improve
opportunities for regional self-sufficiency.
This bill adds provisions regarding failing to file required
diversion and use reports. However, the consequences are
different depending on whether the requirements are statutory or
imposed by SWRCB. In the case of statutorily required reports,
failure to file would create a rebuttable presumption that the
diversion or use did not occur. That is, the person or persons
who did not file the required reports would be allowed to prove
that such diversion or use did occur, but the burden of proof
would be upon them. However, if the requirement was imposed by
SWRCB as a condition of a water rights permit, as an example, the
failure to file would be deemed non-use. Under existing water
law, such non-use can result in loss of the right, under certain
circumstances.
The issue of better information on diversion and use is also
addressed in AB 900 (De Leon), albeit in a different though
complementary way. AB 900 would eliminate a number of current
exemptions from filing reports of diversion and use. Currently,
AB 900 and this bill do not conflict.
Water Rights Enforcement : This bill provides new and increased
penalties for violating water rights law and expands SWRCB's
authority to enforce water rights laws. In effect, these changes
would level the playing field to support better enforcement of
water rights laws. These penalties have not been increased in
decades and fail to reflect the economic value of compliance. In
some cases, there is no penalty at all, such as violation of
permit terms. While SWRCB may be able to issue a cease-and-desist
order, such actions set a high bar for enforcement and fail to
recover enforcement costs.
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Delta Vision Committee Implementation Report (a.k.a. the Chrisman
Report), dated December 31, 2008, while not commenting on this
precise set of penalties and enforcement authorities, called for
legislation "to enhance and expand the State Water Resources
Control Board's water rights administrative accountability. These
recommendations are not intended to adversely affect the current
water right priority system, including area-of-origin priorities
but rather to strengthen the current administrative system.
Appropriate enforcement will protect existing water rights." It
later stated that "many existing water right permit terms and
conditions are not directly enforceable, and the law should be
amended to correct this problem." Despite the Administration's
comment about enforcement protecting all water rights, some object
to stronger enforcement. It is unclear whether these opponents
are violators who wish to avoid enforcement.
Statutory Adjudication : Currently, SWRCB is authorized to conduct
stream adjudications only upon petition. This bill would further
authorize SWRCB to conduct such adjudications upon its own motion,
after conducting a hearing and finding that such adjudication
would be in the public interest. In some situations, when water
rights holders seek to avoid any adjudication, the loser is the
environment, which may have no advocate for clarifying water
rights in the context of protecting the public trust. This
provision would allow the SWRCB to identify such a problem and
begin the clarification process on its own.
Delta Vision Committee Implementation Report observed "the Water
Board needs to clarify existing water rights in many parts of the
State in light of poorly defined or unreported riparian and
appropriative water right claims and the unquantified needs of
fish and wildlife. SWRCB needs the authority to initiate stream
adjudications and collect adjudication costs from the parties
diverting water. This process will respect area of origin rights."
Interim Relief : The bill would authorize SWRCB to require interim
remedies as specified. Interim remedies are designed to prevent
or halt potentially permanent harm while allowing the full
evidentiary process to continue. It protects due process and
restores the status quo, so that adjudication of the conflict may
proceed without further damage to the environment. It again
levels the playing field for enforcement of water rights law.
This provision is patterned after a preliminary injunction
proceeding in court, where the court can stop "irreparable" damage
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while litigation proceeds. It also allows SWRCB to require a
violator to pay the costs of developing sufficient information to
resolve the conflict.
Delta Vision Committee Implementation Report states "The Water
Board needs authority to require interim remedies, after
opportunity for hearing, to prevent irreparable harm to the
environment and other water right holders, while underlying
proceedings continue. Interim remedies could include requiring the
diverter to take appropriate action to mitigate potential harm or
to provide necessary information. As with courts, Water Board
evidentiary proceedings can take many years. Unlike courts,
however, the Water Board currently has no authority to issue
interim orders designed to prevent irreparable harm."
Groundwater Monitoring : This bill would establish a statewide
groundwater monitoring program to ensure that groundwater
elevations in all groundwater basins and subbasins be regularly
and systematically monitored locally and that the resulting
groundwater information be made readily and widely available.
As noted above, the Strategic Plan observed, "Plainly said, the
information about current diversions and use in the current water
system is inadequate to the task of managing the co-equal values.
More comprehensive data from throughout the Delta watershed would
provide a better foundation for changes in water diversion timing.
California must also develop and use comprehensive information on
the local, regional and statewide availability, quality, use, and
management of groundwater and surface water resources to help
improve opportunities for regional self-sufficiency.
In the past five years, the Legislature has approved three bills
to improve the State's access to groundwater information, but the
Governor vetoed all three. In intervening years, groundwater
problems have grown worse, largely because California is the last
western state without any state groundwater management - and very
little information about the conditions of the state's groundwater
basins. Excessive pumping in the last century has led to
substantial subsidence, as much as 55 feet in some areas.
Recently, for example, on the Westside of the San Joaquin Valley,
where allocations of Delta water from the federal Central Valley
Project were minimal, farmers responded by pumping more
groundwater. DWR then reported that the State Water Project's
canal, which passes through the area on its way south, may suffer
cracks because of the high level of pumping and resulting slumping
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of the ground under the canal.
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096
FN: 0003144