California Assembly Bill AB900 Amended / Bill

 BILL NUMBER: AB 900AMENDED BILL TEXT AMENDED IN SENATE AUGUST 17, 2009 AMENDED IN SENATE JULY 13, 2009 AMENDED IN SENATE JUNE 30, 2009 AMENDED IN ASSEMBLY APRIL 28, 2009 INTRODUCED BY Assembly Member De Leon (Coauthors: Assembly Members Emmerson, Fuller, Gilmore, Salas, and Solorio) FEBRUARY 26, 2009 An act to amend Sections 5100, 5101, 5103, and 5107 of, to add Chapter 2.7 (commencing with Section 348) to Division 1 of, and to repeal Section 5108 of, of the Water Code, relating to water diversion. LEGISLATIVE COUNSEL'S DIGEST AB 900, as amended, De Leon. Water diversion and use: reporting. Existing law, with certain exceptions, requires each person who diverts water after December 31, 1965, to file with the State Water Resources Control Board a prescribed statement of diversion and use. Existing law requires a statement to include specified information, including, on and after January 1, 2012, monthly records of water diversions. Under existing law, the monthly record requirement does not apply to a surface water diversion with a combined diversion capacity from a natural channel that is less than 50 cubic feet per second or to diverters using siphons in the tidal zone. Existing law subjects a person who makes a material misstatement in connection with the filing of the diversion and use statements to administratively imposed civil penalties in the amount of $500 for each violation. This bill would revise the types of water diversions for which the reporting requirement does not apply, including, among other diversions, a diversion that occurs before January 1, 2009, if certain requirements are met. The bill would  revise those specified   delete  exceptions  that apply  to the monthly record requirement, and  revise  requirements relating to the contents of the statement of diversions and use. The bill would subject a person to civil liability if that person fails to file, as required, a diversion and use statement for a diversion or use that occurs after January 1, 2009, tampers with any measuring device, or makes a material misstatement in connection with the filing of a diversion and use statement. The board would be authorized to impose the civil liability in accordance with a specified schedule. The bill would authorize the board and the Department of Water Resources to adopt emergency regulations for the filing of reports of water diversion or use that are required to be filed by those respective state agencies under specified statutory provisions. The bill would make additional conforming changes and would set forth related legislative findings and declarations. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) The San Francisco Bay-Sacramento-San Joaquin River Delta (Delta) is in the midst of an ecological crisis. Its unique character and capacity to serve California are threatened by a variety of factors, including diversions of water, pollution, urbanization, flood and seismic risks, and invasive species. (b) The water that is found in, and delivered through, the Delta is the source of drinking water for 25,000,000 Californians, fuels a $37,000,000,000 agricultural industry, and serves as an important habitat for over 750 plant and animal species. (c) It has been estimated that there are approximately 1,800 agricultural, municipal, and industrial diversions in the Delta that, combined, divert 5 percent of the freshwater flows from the Delta watershed. However, because none of these in-Delta diverters are required to measure and report their water diversion and use, there is presently little data regarding the nature, extent, and location of these diversions. (d) Given the well-known importance of water to the state's health, economy, and welfare, including to its ecosystems and natural resources, water measurement and reporting are required for most diversions. (e) The Delta Vision Committee Implementation Report recommends improved monitoring and reporting, including the elimination of exemptions from requirements for the filing of statements of water diversion and use. SEC. 2. Chapter 2.7 (commencing with Section 348) is added to Division 1 of the Water Code, to read: CHAPTER 2.7. WATER DIVERSION AND USE REPORTS 348. (a) The department or the board may adopt emergency regulations providing for the electronic filing of reports of water diversion or use required to be filed with the department or board under this code, including, but not limited to, any report required to be filed under Part 5.1 (commencing with Section 5100) of Division 2 and any report required to be filed by a water right permittee or licensee. (b) Emergency regulations adopted pursuant to this section, or any amendments thereto, shall be adopted by the department or the board in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health, safety, and general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, any emergency regulations or amendments to those regulations adopted under this section shall remain in effect until revised by the department or the board that adopted the regulations or amendments. SEC. 3. Section 5100 of the Water Code is amended to read: 5100. As used in this part: (a) "Best available technologies" means technologies at the highest technically practical level, using flow totaling devices, and if necessary, data loggers and telemetry. (b) "Best professional practices" means practices attaining and maintaining the accuracy of measurement and reporting devices and methods. (c) "Diversion" means taking water by gravity or pumping from a surface stream or subterranean stream flowing through a known and definite channel, or other body of surface water, into a canal, pipeline, or other conduit, and includes impoundment of water in a reservoir. (d) "Person" means all persons whether natural or artificial, including the United States of America, State of California, and all political subdivisions, districts, municipalities, and public agencies. SEC. 4. Section 5101 of the Water Code is amended to read: 5101. Each person who, after December 31, 1965, diverts water shall file with the board, prior to July 1 of the succeeding year, a statement of his or her diversion and use, except that a statement is not required to be filed if the diversion is any of the following: (a) From a spring that does not flow off the property on which it is located and from which the person's aggregate diversions do not exceed 25 acre-feet in any year. (b) Covered by a registration for small domestic or livestock stockpond uses, or permit or license to appropriate water on file with the board. (c) Included in a notice filed pursuant to Part 5 (commencing with Section 4999). (d) Regulated by a watermaster appointed by the department and included in annual reports filed with a court or the board by the watermaster, which reports identify the persons who have diverted water and describe the general purposes and the place, the use, and the quantity of water that has been diverted from each source.  .   (e) A surface water diversion that has a combined diversion capacity of less than ____.   (f)   (e)  Included in annual reports filed with a court or the board by a watermaster appointed by a court or pursuant to statute to administer a final judgment determining rights to water, which reports identify the persons who have diverted water and give the general place of use and the quantity of water that has been diverted from each source.  (g)   (f)  For use in compliance with Article 2.5 (commencing with Section 1226) or Article 2.7 (commencing with Section 1228) of Chapter 1 of Part 2.  (h)   (g)  A diversion that occurs before January 1, 2009, if any of the following applies: (1) The diversion is from a spring that does not flow off the property on which it is located, and the person's aggregate diversions exceed 25 acre-feet in any year. (2) The diversion is covered by an application to appropriate water on file with the board. (3) The diversion is reported by the department in its hydrologic data bulletins. (4) The diversion is included in the consumptive use data for the Delta lowlands published by the department in its hydrologic data bulletins. SEC. 5. Section 5103 of the Water Code is amended to read: 5103. Each statement shall be prepared on a form provided by the board. The statement shall include all of the following information: (a) The name and address of the person who diverted water and of the person filing the statement. (b) The name of the stream or other source from which water was diverted, and the name of the next major stream or other body of water to which the source is tributary. (c) The place of diversion. The location of the diversion works shall be depicted on a specific United States Geological Survey topographic map, or shall be identified using the California Coordinate System, or latitude and longitude measurements. If assigned, the public land description to the nearest 40-acre subdivision and the assessor's parcel number shall also be provided. (d) The capacity of the diversion works and of the storage reservoir, if any, and the months in which water was used during the preceding calendar year. (e) (1) On and after January 1, 2012, monthly records of water diversions. The measurements of the diversion shall be made using best available technologies and best professional practices. Nothing in this paragraph shall be construed to require the implementation of technologies or practices by a person who provides to the board documentation demonstrating that the implementation of those practices is not locally cost effective.  (2) Paragraph (1) does not apply to a surface water diversion that has a combined diversion capacity from a natural channel that is less than ____.   (3)   (2)  (A) The terms of, and eligibility for, any grant or loan awarded or administered by the department, the board, or the California Bay-Delta Authority on behalf of a person that is subject to paragraph (1) shall be conditioned on compliance with that paragraph. (B) Notwithstanding subparagraph (A), the board may determine that a person is eligible for a grant or loan even though the person is not complying with paragraph (1), if both of the following apply: (i) The board determines that the grant or loan will assist the grantee or loan recipient in complying with paragraph (1). (ii) The person has submitted to the board a one-year schedule for complying with paragraph (1). (C) It is the intent of the Legislature that the requirements of this subdivision shall complement and not affect the scope of authority granted to the board by provisions of law other than this article.  (f) For persons not subject to paragraph (1) of subdivision (e), a description of the acreage of each crop irrigated, the average number of people served with water, the average number of stock watered, and the nature and extent of any other use during the preceding calendar year, or other equivalent information that indicates the quantity of water used as may be prescribed by the board. Those who maintain water measuring devices and keep monthly records of water diversions shall state the quantity of water diverted by months during the preceding calendar year.   (g)   (f)  The purpose of use.  (h)   (g)  A general description of the area in which the water was used. The location of the place of use shall be depicted on a specific United States Geological Survey topographic map and on any other maps with identifiable landmarks. If assigned, the public land description to the nearest 40-acre subdivision and the assessor' s parcel number shall also be provided.  (i)   (h)  The year in which the diversion was commenced as near as is known. SEC. 6. Section 5107 of the Water Code is amended to read: 5107. (a) The making of any willful misstatement pursuant to this part is a misdemeanor punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not to exceed six months, or both. (b) Any person who fails to file a statement required to be filed under this part for a diversion or use that occurs after January 1, 2009, who tampers with any measuring device, or who makes a material misstatement pursuant to this part may be liable civilly as provided in subdivisions (c) and (d). (c) Civil liability may be administratively imposed by the board pursuant to Section 1055 in an amount not to exceed the following amounts: (1) For failure to file a statement, one thousand dollars ($1,000), plus five hundred dollars ($500) per day for each additional day  of violation   on which the violation continues  if the person fails to file a statement within 30 days after the board has called the violation to the attention of that person. (2) For a violation resulting from a physical malfunction of a measuring device not caused by the person or any other unintentional misstatement, two hundred fifty dollars ($250), plus two hundred fifty dollars ($250) per day for each additional day on which the measuring device continues to malfunction or the misstatement is not corrected if the person fails to correct or repair the measuring device or correct the misstatement within 60 days after the board has called the malfunction or violation to the attention of that person. (3) For knowingly tampering with any measuring device or knowingly making a material misstatement in a statement filed under this part, twenty-five thousand dollars ($25,000), plus one thousand dollars ($1,000) for each day  in   on  which the violation continues if the person fails to correct the violation within 30 days after the board has called the violation to the attention of that person. (4) For any other violation, five hundred dollars ($500), plus two hundred fifty dollars ($250) for each additional day  of violation   on which the violation continues  if the person fails to correct the violation within 30 days after the board has called the violation to the attention of that person. (d) When an additional penalty may be imposed under subdivision (c) for failure to correct a violation or correct or repair a malfunctioning measuring device within a specified period after the violation has been called to a person's attention by the board, the board, for good cause, may provide for a longer period for correction of the problem, and the additional penalty shall not apply if the violation is corrected within the period specified by the board. (e) In determining the appropriate amount, the board shall consider all relevant circumstances, including, but not limited to, all of the following factors: (1) The extent of harm caused by the violation. (2) The nature and persistence of the violation. (3) The length of time over which the violation occurs. (4) Any corrective action undertaken by the violator. (f) All funds recovered pursuant to this section shall be deposited in the Water Rights Fund established pursuant to Section 1550. (g) Remedies under this section are in addition to, and do not supersede or limit, any other remedies, civil or criminal. SEC. 7. Section 5108 of the Water Code is repealed.