BILL NUMBER: AB 763 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Bill Berryhill
FEBRUARY 17, 2011
An act to amend Sections 1602 and 1603 of, and to add
Section 1611.5 to, the Fish and Game Code, and An act
to amend Section 183 of, to add Section 183.1 to, and to add
Chapter 13 (commencing with Section 1890) and Chapter 14
(commencing with Section 1900) to Part 2 of Division 2 of,
the Water Code, relating to water.
LEGISLATIVE COUNSEL'S DIGEST
AB 763, as amended, Bill Berryhill. Water rights: administrative
procedures: lake and streambed alteration agreements.
procedures.
(1) Existing law authorizes the State Water Resources Control
Board to hold any hearings and conduct any investigations in any part
of the state necessary to carry out its powers. Existing law
authorizes a hearing or investigation to be conducted by any member
of the board upon authorization of the board, with a specified
exception.
This bill would additionally authorize the board to employ
administrative law judges meeting specified qualifications and to
authorize an administrative law judge to conduct hearings and issue
decisions and orders relating to the administration of water rights,
as specified. The bill would authorize any hearing or investigation
of the board to be conducted by an administrative law judge, with a
specified exception.
(2) Under existing law, the board administers a water rights
program pursuant to which the board grants permits and licenses to
appropriate water, upon an application to appropriate water.
Existing law authorizes an applicant, permittee, or licensee for a
right to appropriate water to change the point of diversion, place
of use, or purpose of use of the water from that specified in the
application, permit, or license, upon filing a petition with the
board and approval of the petition by the board.
Existing law establishes various procedures for the submission,
processing, and approval of an application to appropriate water and a
petition to change the point of diversion, place of use, or purpose
of use of the water in an application, permit, or license.
This bill would establish an alternative set of procedures for
submission, processing, and approval of applications to appropriate
water and petitions to change the point of diversion, place of use,
or purpose of use of water, and would authorize an applicant or
petitioner to make an election to use the alternative procedures in
lieu of the procedures established under existing law. The bill would
provide that an approval of a permit or petition pursuant to the
alternative procedures is in lieu of any other permit, certificate,
or other document required by another agency, as specified. Among
other procedures, the bill would require the board to transmit copies
of applications or petitions to specified local governmental
agencies, and upon receipt of an application or petition, would
require a local agency to submit comments to the board. By imposing
these new requirements on local governmental agencies, this bill
would create a state-mandated local program.
The
This bill would also authorize a
person who files an application to appropriate water, a protest to an
application to appropriate water, a petition to change the point of
diversion, place of use, or purpose of use of the water in an
application, permit, or license, or a protest to a petition, to
appeal specified determinations for review by a member of the board
or an administrative law judge before the board takes final action on
the application or petition.
(3) Existing law prohibits a person, a state or local governmental
agency, or a public utility, from substantially diverting or
obstructing the natural flow of, or substantially changing or using
any material from the bed, channel, or bank of, any river, stream, or
lake, or depositing or disposing of debris, waste, or other material
containing crumbled, flaked, or ground pavement where it may pass
into any river, stream, or lake, unless prescribed requirements are
met, including written notification to the Department of Fish and
Game regarding the activity. Existing law requires the department to
determine whether the activity may substantially adversely affect an
existing fish and wildlife resource and, if so, to provide a draft
lake or streambed alteration agreement to the person, agency, or
utility. Existing law prescribes various requirements for lake and
streambed alteration agreements. Existing law also establishes
various exemptions, including exemptions for certain agreements
relating to water supply, drainage, flood control, or waste treatment
and disposal facilities attained prior to January 1, 1977, after the
initial notification and agreement.
This bill would modify that prohibition to prohibit only a
substantial obstruction that will substantially affect a river,
stream, or lake as described above, unless prescribed requirements
are met.
The bill would delete that exemption for pre-1977 agreements, and
would exempt from the notice and agreement requirements, after the
initial notification and agreement, an activity at a facility in
existence on January 1, 2012, unless the work or the preexisting
facility has substantially changed or conditions affecting fish and
wildlife resources have substantially changed, and those resources
may be adversely affected by the activity conducted under the
agreement or at the preexisting facility.
The bill would require that an entity that submits a specified
application or petition for appropriation of water to the State Water
Resources Control Board be deemed to provide the notification
required under the lake or streambed alteration provisions, if the
application or petition meets prescribed requirements. The bill would
require the department to consult with the board and provide
recommendations as to measures necessary to protect existing fish and
wildlife resources in connection with water right applications and
petitions, and would prohibit the department from imposing measures
in a lake or streambed alteration agreement that are inconsistent
with specified requirements imposed by the board.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1602 of the Fish and Game
Code is amended to read:
1602. (a) An entity shall not substantially obstruct the natural
flow of, or substantially change or use any material from the bed,
channel, or bank of, any river, stream, or lake, or deposit or
dispose of debris, waste, or other material containing crumbled,
flaked, or ground pavement where it may pass into any river, stream,
or lake, unless all of the following occur:
(1) The department receives written notification regarding the
activity in the manner prescribed by the department. The notification
shall include, but is not limited to, all of the following:
(A) A detailed description of the project's location and a map.
(B) The name, if any, of the river, stream, or lake affected.
(C) A detailed project description, including, but not limited to,
construction plans and drawings, if applicable.
(D) A copy of any document prepared pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code.
(E) A copy of any other applicable local, state, or federal permit
or agreement already issued.
(F) Any other information required by the department.
(2) The department determines the notification is complete in
accordance with Chapter 4.5 (commencing with Section 65920) of
Division 1 of Title 7 of the Government Code, irrespective of whether
the activity constitutes a development project for the purposes of
that chapter.
(3) The entity pays the applicable fees, pursuant to Section 1609.
(4) One of the following occurs:
(A) (i) The department informs the entity, in writing, that the
activity will not substantially adversely affect an existing fish or
wildlife resource, and that the entity may commence the activity
without an agreement, if the entity conducts the activity as
described in the notification, including any measures in the
notification that are intended to protect fish and wildlife
resources.
(ii) Each region of the department shall log the notifications of
activities where no agreement is required. The log shall list the
date the notification was received by the department, a brief
description of the proposed activity, and the location of the
activity. Each item shall remain on the log for one year. Upon
written request by any person, a regional office shall send the log
to that person monthly for one year. A request made pursuant to this
clause may be renewed annually.
(B) The department determines that the activity may substantially
adversely affect an existing fish or wildlife resource and issues a
final agreement to the entity that includes reasonable measures
necessary to protect the resource, and the entity conducts the
activity in accordance with the agreement.
(C) A panel of arbitrators issues a final agreement to the entity
in accordance with subdivision (b) of Section 1603, and the entity
conducts the activity in accordance with the agreement.
(D) The department does not issue a draft agreement to the entity
within 60 days from the date notification is complete, and the entity
conducts the activity as described in the notification, including
any measures in the notification that are intended to protect fish
and wildlife resources.
(b) (1) If an activity involves the routine maintenance and
operation of water supply, drainage, flood control, or waste
treatment and disposal facilities, or is an activity at a preexisting
facility that is in existence on January 1, 2012, notice to and
agreement with the department shall not be required after the initial
notification and agreement, unless the department determines either
of the following:
(A) The work described in the agreement or the activity of the
preexisting facility has substantially changed.
(B) Conditions affecting fish and wildlife resources have
substantially changed, and those resources may be adversely affected
by the activity conducted under the agreement or at the preexisting
facility.
(2) This subdivision applies only if the facilities described in
paragraph (1) were in existence before January 1, 2012, or notice to,
and agreement with, the department was attained prior to January 1,
2012, and the department has been provided a copy of the agreement or
other proof of the existence of the agreement that satisfies the
department, if requested.
(c) It is unlawful for any person to violate this chapter.
SEC. 2. Section 1603 of the Fish and Game Code
is amended to read:
1603. (a) After the notification is complete, the department
shall determine whether the activity, as compared to the baseline
environmental conditions present at the time of the notification, may
substantially adversely affect an existing fish and wildlife
resource. If the department determines that the activity may have
that effect, the department shall provide a draft agreement to the
entity within 60 days after the notification is complete. The draft
agreement shall describe the fish and wildlife resources that the
department has determined the activity may substantially adversely
affect and include measures to protect those resources. The
description of the affected resources in the draft agreement shall be
specific and detailed and shall demonstrate a connection between the
measures to protect those resources and the substantial adverse
effect, and the department shall make available, upon request, the
information upon which its determination of substantial adverse
effect is based. Within 30 days of the date of receipt of the draft
agreement, the entity shall notify the department whether the
measures to protect fish and wildlife resources in that draft
agreement are acceptable. If the department's measures are not
acceptable, the entity shall so notify the department in writing and
specify the measures that are not acceptable. Upon written request,
the department shall meet with the entity within 14 days of the date
the department receives the request for the purpose of resolving any
disagreement regarding those measures. If the entity fails to
respond, in writing, within 90 days of receiving the draft agreement,
the department may withdraw that agreement, and require the entity
to resubmit a notification to the department before commencing the
activity.
(b) If mutual agreement is not reached at any meeting held
pursuant to subdivision (a), the entity may request, in writing, the
appointment of a panel of arbitrators to resolve the disagreement. A
panel of arbitrators shall be appointed within 14 days of receipt of
the written request. The panel of arbitrators shall be comprised of
three persons, as follows: one representative selected by the
department; one representative selected by the affected entity; and a
third person mutually agreed upon by the department and the entity,
who shall serve as the panel chair. If the department and the entity
cannot agree on the third person within that 14-day period, the third
person shall be appointed in the manner provided by Section 1281.6
of the Code of Civil Procedure. The third person shall have
scientific expertise relevant to the fish and wildlife resources that
may be substantially adversely affected by the activity proposed by
the entity and to the measures proposed by the department to protect
those resources. The authority of the panel of arbitrators is limited
to resolving disagreements regarding the measures specified in
subdivision (a), and subdivisions (b) and (g) of Section 1605, and,
in the case of an extension, whether or not the agreement needs to be
modified to protect fish and wildlife resources. Any decision by the
panel of arbitrators shall be issued within 14 days from the date
the panel was established, shall be binding on the department and the
affected entity, shall be based on the best scientific information
reasonably available at the time of the arbitration, and, except for
a decision to extend an agreement without modification, shall be made
in the form of a final agreement. The final agreement issued by the
panel shall also include, without modification, all measures that
were not subject to arbitration. Each party shall pay the expenses of
their selected representative and pay one-half the expenses of the
third person.
SEC. 3. Section 1611.5 is added to the Fish and
Game Code, to read:
1611.5. (a) An entity that submits a water right application or
petition in accordance with Part 2 (commencing with Section 1200) of
Division 2 of the Water Code, or submits a copy directly to the
department, is deemed to have given the notification required by
paragraph (1) of subdivision (a) of Section 1602 as of the date that
the application or petition is provided to the department.
(b) Subdivision (a) shall apply only if all of the following
information is included in the application or petition:
(1) The volume, type, and equipment to be used in removing or
displacing any combination of soil, sand, gravel, or boulders.
(2) The volume of water, intended use, and equipment to be used in
any water diversion or impoundment, if applicable.
(3) The type and density of vegetation to be affected and an
estimate of the area involved.
(4) A diagram or sketch of the location of the operation that
clearly indicates the stream or other water and access from a named
public road. Locked gates shall be indicated and the compass
direction shall be shown.
(5) A description of the period of time in which operations will
be carried out.
(c) The department is not required to determine whether a
notification pursuant to subdivision (a) is complete, or otherwise
process the notification, until both the application or permit and
the applicable notification fee have been received by the department.
(d) (1) The department shall consult with the State Water
Resources Control Board and provide recommendations as to measures
necessary to protect existing fish and wildlife resources, as
required pursuant to Part 2 (commencing with Section 1200) of
Division 2 of the Water Code.
(2) The department shall not impose measures in an agreement
issued pursuant to this chapter that are inconsistent with conditions
pertaining to water diversion and use imposed pursuant to a permit
or other determination issued by the State Water Resources Control
Board pursuant to Part 2 (commencing with Section 1200) of Division 2
of the Water Code.
(e) Nothing in this section shall require the department to issue
an agreement within fewer than 60 days after the date on which the
notification is complete.
SEC. 4. SECTION 1. Section 183 of
the Water Code is amended to read:
183. (a) The board may hold any hearings and conduct any
investigations in any part of the state necessary to carry out the
powers vested in it, and for such purposes has the powers conferred
upon heads of departments of the state by Article 2 (commencing with
Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the
Government Code.
(b) Any hearing or investigation by the board may be conducted by
any member of the board, or by an administrative law judge pursuant
to Section 183.1, upon authorization of the board, and the member or
the administrative law judge shall have the powers granted to the
board by this section. However, any final action of the board shall
be taken by a majority of all the members of the board, at a meeting
duly called and held, except for any purpose for which this code
authorizes a final action by a member or an administrative law judge.
(c) All hearings held by the board or by any member of the board
shall be open and public.
SEC. 5. SEC. 2. Section 183.1 is
added to the Water Code, to read:
183.1. (a) The board may employ, on a temporary basis,
administrative law judges with expertise in water rights law, water
quality law, and the California Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code), for purposes of
this section.
(b) Notwithstanding any other law, the board may authorize an
administrative law judge to do any of the following:
(1) Conduct a hearing, and issue a decision or order, pursuant to
Part 2 (commencing with Section 1200) of Division 2.
(2) Reconsider and amend a decision or order pursuant to Chapter 4
(commencing with Section 1120) of Part 1 of Division 2.
(3) Conduct a hearing on, and adopt an order setting,
administrative civil liability, or determining that a liability shall
not be imposed, pursuant to Section 1055.
(4) Review appeals of determinations by the staff of the board
regarding an application, petition, or other water right matter that
is delegated to board staff before the board has taken final action.
(c) The board shall adopt reasonable regulations establishing
procedures and requirements for the reimbursement of the board's
costs associated with the employment of an administrative law judge
for the purposes of this section from parties to an adjudication or
hearing conducted by an administrative law judge.
SEC. 6. SEC. 3. Chapter 13
(commencing with Section 1890) is added to Part 2 of Division 2 of
the Water Code, to read:
CHAPTER 13. PREDECISIONAL REVIEW
1890. Any person who files an application to appropriate water or
a protest to an application to appropriate water pursuant to Chapter
2 (commencing with Section 1250), or a petition or protest pursuant
to Chapter 10 (commencing with Section 1700) or Chapter 10.5
(commencing with Section 1725), may seek review by a member of the
board or an administrative law judge before the board takes final
action on the application, petition, or protest, with respect to any
of the following determinations:
(a) Whether the diversion is from a body of water subject to the
jurisdiction of the board pursuant to Section 1200.
(b) Whether the use of the water involves diversion of water
subject to the jurisdiction of the board.
(c) Whether unappropriated water is available for a proposed
diversion pursuant to Section 1202.
(d) Whether the application or petition is subject to the
California Environmental Quality Act (Division 13 (commencing with
section Section 21000) of the Public
Resources Code), or is subject to that act but categorically exempt
from further analysis.
(e) Whether a document satisfies the requirements of the
California Environmental Quality Act.
(f) Whether a protest shall be accepted, rejected, or dismissed.
SEC. 7. Chapter 14 (commencing with Section
1900) is added to Part 2 of Division 2 of the Water Code, to read:
CHAPTER 14. ALTERNATIVE PROCEDURES FOR APPROPRIATION OF WATER
1900. This chapter establishes alternative procedures for the
processing and approval of applications to appropriate water pursuant
to Chapter 2 (commencing with Section 1250), Chapter 3 (commencing
with Section 1300), Chapter 4 (commencing with Section 1330), Chapter
5 (commencing with Section 1340), and Chapter 6 (commencing with
Section 1375) and petitions pursuant to Chapter 10 (commencing with
Section 1700) and Chapter 10.5 (commencing with Section 1725).
1901. (a) This chapter shall apply only if an applicant or
petitioner elects to use the alternative procedures set forth in this
chapter for a purpose described in Section 1900.
(b) The applicant or petitioner may make the election to use the
procedures set forth in this chapter at either of the following
times:
(1) At any time before a public notice of the application or
petition has been issued.
(2) After a public notice of the application or petition has been
issued, but before any document prepared under the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) is provided for public review.
(c) If the election is made pursuant to paragraph (2) of
subdivision (b), the board shall issue a new notice of the
application or petition in accordance with subdivision (b) of Section
1904. The notice of the application or petition shall state that
this chapter applies to the processing and approval of that
application or petition.
1902. (a) In accordance with this chapter, the board shall have
the exclusive power to approve applications to appropriate water
pursuant to Chapter 2 (commencing with Section 1250), Chapter 3
(commencing with Section 1300), Chapter 4 (commencing with Section
1330), Chapter 5 (commencing with Section 1340), and Chapter 6
(commencing with Section 1375) and petitions pursuant to Chapter 10
(commencing with Section 1700) and Chapter 10.5 (commencing with
Section 1725).
(b) An approval of a permit to appropriate water or a petition to
change the point of diversion, place of use, or purpose of use as
specified in an application, permit, or license, pursuant to this
chapter, shall be in lieu of any other permit, certificate, or other
document required by any state, local, or regional agency, or a
federal agency to the extent permitted by federal law, for the use of
the appropriated water.
(c) (1) An approval pursuant to this chapter shall supersede any
approval required pursuant to any other statute, ordinance, or
regulation of any state, local, regional agency, or federal agency to
the extent permitted by federal law.
(2) Nothing in this chapter shall supersede any applicable
requirements under the California Environmental Quality Act (Division
13 (commencing with Section 21000) of the Public Resources Code).
1903. (a) The board shall be the lead agency pursuant to Section
21165 of the Public Resources Code for purposes of any application or
petition that is subject to this chapter and the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code).
(b) If an environmental impact report or negative declaration is
required for purposes of the application or petition, the report or
declaration shall be completed within one year after receipt of the
application or petition.
1904. (a) (1) Within 30 days after it receives an application or
petition, the board shall determine whether the application or
petition is complete.
(2) If the board determines that the application or petition is
incomplete, the board shall provide a written notice to the applicant
or petitioner specifying the parts of the application or petition
that are incomplete and indicating the manner in which it can be made
complete.
(3) Within 30 days after the receipt of information needed to
complete an application or petition, as identified pursuant to
paragraph (2), the board shall determine whether the information is
sufficient to make the application complete.
(b) Upon a determination that an application or petition is
complete, the board shall cause a notice to be published in
accordance with Chapter 3 (commencing with Section 1300), Chapter 10
(commencing with Section 1700), or Chapter 10.5 (commencing with
Section 1725), whichever is applicable to the application or
petition. The notice shall state that the application or petition is
subject to the provisions of this chapter. In addition to any notice
requirements pursuant to any other law, the board shall also provide
copies of the application or petition in the manner described in
subdivision (c).
(c) (1) (A) The board shall transmit a copy of the application or
petition to all local governmental agencies having jurisdiction over
land use, or related jurisdiction, in the area of the proposed point
of diversion or place of use.
(B) Upon receipt of an application or petition pursuant to this
paragraph, a local agency shall review the application and submit to
the board comments on, among other things, the application or
petition.
(2) The board shall transmit a copy of the application to each
federal and state agency having jurisdiction or special interest in
matters pertinent to the application or petition.
(3) The board shall transmit a copy of the application or petition
to any governmental agency not specified in paragraph (1) or (2),
but which the board finds has any information or interest in the
application or petition, and shall invite the comments and
recommendations of each agency. Agency comments shall include
reference to any relevant laws, ordinances, or regulations that an
agency has promulgated or administered.
(d) For purposes of this section, "complete" means that the
application or petition contains all information and contents
required pursuant to Article 2 (commencing with Section 1260) of
Chapter 2, Chapter 10 (commencing with Section 1700), or Chapter 10.5
(commencing with Section 1725), whichever is applicable.
1905. Local and state agencies having jurisdiction or special
interest in matters pertinent to the application or petition shall
provide their comments and recommendations on the application or
petition within 180 days of the date of notice of the application or
petition.
1907. (a) No earlier than 90 days, and not later than 240 days,
after the date of the notice of the application or petition pursuant
to subdivision (b) of Section 1904, the board shall commence a public
hearing or hearings on the application or petition, as required
pursuant to Article 2 (commencing with Section 1350) of Chapter 5,
Chapter 10 (commencing with Section 1700), or Chapter 10.5
(commencing with Section 1725).
(b) The board shall cause a notice of the hearing to be published
in compliance with Article 1 (commencing with Section 1340) of
Chapter 5, Chapter 10 (commencing with Section 1700), or Chapter 10.5
(commencing with Section 1725), whichever is applicable to the
application or petition.
(c) The hearing shall provide a reasonable opportunity for the
public and all parties to the proceeding to comment upon the
application or petition, and shall provide an equivalent opportunity
for comment as required pursuant to Division 13 (commencing with
Section 21000) of the Public Resources Code.
(d) Consistent with the requirements of this section, the board
shall have the discretion to determine whether or not a hearing is to
be conducted in a manner that requires formal examination of
witnesses or that uses other similar adjudicatory procedures.
1908. (a) Within 18 months after the date of the notice of an
application or petition that does not require a public hearing
pursuant to subdivision (b) of Section 1904, or within three months
of a public hearing on an application or petition pursuant to Section
1907, or at any later time as is mutually agreed by the board and
the applicant or petitioner, the board shall issue a written decision
or order on the application or petition.
(b) The written decision shall comply with the requirements of
this part, and shall include findings with regard to whether the
proposed application or petition complies with standards adopted by
the board and with any applicable local, regional, state, and federal
laws or regulations.
(c) If the board finds that the application or petition does not
comply with a state, local, or regional law or regulation, the board
shall consult and meet with the appropriate state, local, or regional
governmental agency to attempt to correct or eliminate that
noncompliance. If noncompliance cannot be corrected or eliminated,
the board shall inform the state, local, or regional governmental
agency of its findings pursuant to Section 1909.
1909. (a) The board shall not approve an application or petition
if it finds, pursuant to subdivision (c) of Section 1908, that the
application or petition does not comply with any applicable state,
local, or regional law or regulation, unless the board determines
that the application or petition is required
for the public interest and that there are not more
prudent and feasible means of achieving the public interest. In
making that determination, the board shall consider the entire record
of the proceeding, including, but not limited to, the impacts of the
application or petition on the environment, water user benefits, and
water supply reliability. The basis for the determination shall be
set forth in writing and submitted as part of the record pursuant to
Section 1908.
(b) For purposes of this section, the board shall not make any
finding or determination that is in conflict with any applicable
federal law or regulation.
SEC. 8. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.