California Senate Bill SB665 Amended / Bill

 BILL NUMBER: SB 665AMENDED BILL TEXT AMENDED IN SENATE MARCH 24, 2011 INTRODUCED BY Senator La Malfa FEBRUARY 18, 2011  An act relating to water.   An act to amend Sections 1600, 1602, 1605, 1610, 1615, and 2087 of the Fish and Game Code, relating to water diversions.  LEGISLATIVE COUNSEL'S DIGEST SB 665, as amended, La Malfa.  Water: public trust doctrine: groundwater.   Lake and streambed alteration agreements: endangered species.   (1) 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 specified emergency work and 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 the installation of a new diversion or means of diversion, or the substantial alteration of an existing means of diversion, 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, instead exempt from the notice and agreement requirements, after the initial notification and agreement, an activity that involves the routine maintenance and operation of water supply, drainage, flood control, or waste treatment and disposal facilities constructed and in existence before 2000, unless the work 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. The bill would require the department to contact the entity performing the activity and suggest alternative means of maintaining and operating the facilities consistent with maintaining the full use and function of the facilities and the full use of any water diverted or used by or through those facilities. The bill would establish enforcement procedures if no agreement is reached.   The bill would also exempt immediate emergency work necessary to maintain the use of facilities employed and regularly used for the diversion or discharge of water.   (2) The California Endangered Species Act, until January 1, 2014, exempts from its provisions the accidental take of candidate, threatened, or endangered species resulting from acts that occur on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities.   This bill would expand the exemption to include all acts in the course of otherwise lawful routine and ongoing agricultural activities, without regard to location. The bill would specify that those acts include the diversion of water and use of water for agricultural purposes.   Under the public trust doctrine, the State Water Resources Control Board is required to take the public trust into account in the planning and allocation of water resources and to protect the public trust whenever feasible.   This bill would state the intent of the Legislature to enact legislation that would clarify that the public trust doctrine does not extend to groundwater.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 1600 of the   Fish and Game Code   is amended to read:  1600. The Legislature finds and declares that the protection and conservation of the fish and wildlife resources of this state are of utmost public interest. Fish and wildlife are the property of the people and provide a major contribution to the economy of the state, as well as providing a significant part of the people's food supply; therefore their conservation is a proper responsibility of the state. This chapter is enacted to provide conservation for these resources  and certainty and consistency with other requirements of law  .  SEC. 2.   Section 1602 of the   Fish and Game Code   is amended to read:  1602. (a) An entity  may   shall  not  install a new diversion or means of diversion, or substantially alter an existing means of diversion, that will  substantially divert or 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)   (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  constructed and in existence before 2000  , 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)   (1)  The work  described in the agreement  has substantially changed.  (B)   (2)  Conditions affecting fish and wildlife resources have substantially changed, and those resources  are   may be  adversely affected by the activity conducted under the agreement.  (2) This subdivision applies only if notice to, and agreement with, the department was attained prior to January 1, 1977, 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) (1) Under either paragraph (1) or (2) of subdivision (b), the department shall contact the entity performing the activity and suggest alternative means of maintaining and operating the facilities consistent with maintaining the full use and function of the facilities and the full use of any water diverted or used by or through those facilities. The entity and the department shall meet and confer in good faith in regard to the issues. The department shall not utilize threats of criminal proceedings or fines under this chapter or threats of application of any other provision of state or federal law prior to or during the meet and confer process.   (c)   (2) If no agreement is reached, and the diversion of water or discharge of water is subject to the jurisdiction of a state court or the State Water Resources Control Board, the department may file a complaint or petition to require changes in the maintenance or operation of the facilities with the agency having jurisdiction.   (3) If the diversion of water or discharge of water is not subject to jurisdiction of a state court or the State Water Resources Control Board, the department may file an action for public nuisance with, and maintain that action in, the Superior Court having jurisdiction over the site of the subject activity. If the court determines that the activity constitutes a public nuisance because of conditions described in paragraph (2) of subdivision (b) and that the new practices or conditions required to avoid or abate the public nuisance place additional costs or economic burdens suffered and required to be incurred to remedy the public nuisance on the diverter or the entity performing the operation and maintenance of the facilities, the additional costs or economic burdens shall be deemed a taking of property for the public purpose of protection of fish and wildlife resources and shall be compensated by the department in order to maintain reasonable certainty to persons, business entities, and public entities within the state and to remedy the nuisance conditions.   (d)  It is unlawful for any person to violate this chapter.  SEC. 3.   Section 1605 of the   Fish and Game Code   is amended to read:  1605. (a) (1) Except as otherwise provided in this section, the term of an agreement  regarding the installation of a new diversion or means of diversion or the substantial alteration of an existing means of diversion that will substantially affect a river, stream, or lake as provided in subdivision (a) of Section 1602  shall not exceed five years. (2) Notwithstanding paragraph (1), after the agreement expires, the entity shall remain responsible for implementing any mitigation or other measures specified in the agreement to protect fish and wildlife resources. (b)  Any   The  entity may request one extension of a previously-approved agreement, if the entity requests the extension prior to the expiration of its original term. The department shall grant the extension unless it determines that the agreement requires modification because the measures contained in the agreement no longer protect the fish and wildlife resources that the activity may substantially adversely affect. In the event the department makes that determination, the department shall propose measures intended to protect those resources. (c) If the entity disagrees with the department's determination that the agreement requires modification to protect fish and wildlife resources or with the measures proposed by the department, the disagreement shall be resolved pursuant to the procedures described in subdivision (b) of Section 1603. (d) The department may   shall  not extend an agreement for more than five years. (e) (1) An original agreement shall remain in effect until the department grants the extension request, or new measures are imposed to protect fish and wildlife resources by agreement or through the arbitration process. (2) Notwithstanding paragraph (1), an original agreement  may   shall  not remain in effect for more than one year after its expiration date. (f) If the entity fails to submit a request to extend an agreement prior to its expiration, the entity shall submit a new notification before commencing or continuing the activity covered by the agreement. (g) Notwithstanding paragraph (1) of subdivision (a), the department may issue an agreement, that otherwise meets the requirements of this chapter, for a term longer than five years if the following conditions are satisfied: (1) The information the entity provides to the department in its notification meets the requirements of paragraph (1) of subdivision (a) of Section 1602. (2) The entity agrees to provide a status report to the department every four years. The status report shall be delivered to the department no later than 90 days prior to the end of each four-year period, and shall include all of the following information: (A) A copy of the original agreement. (B) The status of the activity covered by the agreement. (C) An evaluation of the success or failure of the measures in the agreement to protect the fish and wildlife resources that the activity may substantially adversely affect. (D) A discussion of any factors that could increase the predicted adverse impacts on fish and wildlife resources, and a description of the resources that may be adversely affected. (3) The department shall review the four-year status report, and conduct an onsite inspection to confirm that the entity is in compliance with the agreement and that the measures in the agreement continue to protect the fish and wildlife resources. If the department determines that the measures in the agreement no longer protect the fish and wildlife resources that are being substantially adversely affected by the activity, the department, in consultation with the entity, and within 45 days of receipt of the report, shall impose one or more new measures to protect the fish and wildlife resources affected by the activity. If requested to do so by the entity, the department shall make available the information upon which it determined the agreement no longer protects the affected fish and wildlife resources. If the entity disagrees with one or more of the new measures, within seven days of receiving the new measures, it shall notify the department, in writing, of the disagreement. The entity and the department shall consult regarding the disagreement. The consultation shall be completed within seven days after the department receives the entity's notice of disagreement. If the department and entity fail to reach agreement, the entity may request, in writing, the appointment of a panel of arbitrators to resolve the disagreement. The panel of arbitrators shall be appointed within 14 days of the completed consultation. The panel of arbitrators shall issue a decision within 14 days of the date it is established. All other provisions of subdivision (b) of Section 1603 regarding the panel shall apply to any arbitration panel established in accordance with this subdivision. If the entity fails to provide timely status reports as required by this subdivision, the department may suspend or revoke the agreement. (4) The agreement shall authorize department employees to conduct onsite inspections relevant to the agreement, upon reasonable notice. Nothing in this section limits the authority of department employees to inspect private or public sites. (5) Except as provided in paragraph (3), subparagraph (D) of paragraph (4) of subdivision (a) of Section 1602 and the time periods to process agreements specified in this chapter do not apply to agreements issued pursuant to this section. (h) Each region of the department shall log the notifications of activities for which a long-term agreement is being considered pursuant to subdivision (g). 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 paragraph may be renewed annually.  SEC. 4.   Section 1610 of the   Fish and Game Code   is amended to read:  1610. (a) Except as provided in subdivision (b), this chapter does not apply to any of the following: (1) Immediate emergency work necessary to protect life or property.  (2) Immediate emergency work necessary to maintain the use of facilities employed and regularly used for the diversion or discharge of water.   (2)   (3)  Immediate emergency repairs to public service facilities necessary to maintain service as a result of a disaster in an area in which a state of emergency has been proclaimed by the Governor pursuant to Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code.  (3)   (4)  Emergency projects undertaken, carried out, or approved by a state or local governmental agency to maintain, repair, or restore an existing highway, as defined in Section 360 of the Vehicle Code, within the existing right-of-way of the highway, that has been damaged as a result of fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide, within one year of the damage. Work needed in the vicinity above and below a highway may be conducted outside of the existing right-of-way if it is needed to stop ongoing or recurring mudslides, landslides, or erosion that pose an immediate threat to the highway, or to restore those roadways damaged by mudslides, landslides, or erosion to their predamage condition and functionality. This paragraph does not exempt from this chapter any project undertaken, carried out, or approved by a state or local governmental agency to expand or widen a highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide. The exception provided in this paragraph does not apply to a highway designated as an official state scenic highway pursuant to Section 262 of the Streets and Highways Code. (b) The entity performing the emergency work described in subdivision (a) shall notify the department of the work, in writing, within 14 days of beginning the work. Any work described in the emergency notification that does not meet the criteria for the emergency work described in subdivision (a) is a violation of this chapter if the entity did not first notify the department in accordance with Section 1602.  SEC. 5.   Section 1615 of the   Fish and Game Code   is amended to read:  1615. (a) A person who violates  this chapter   Section 1602  is subject to a civil penalty of not more than twenty-five thousand dollars ($25,000) for each violation. (b) The civil penalty imposed pursuant to subdivision (a) is separate from, and in addition to, any other civil penalty imposed pursuant to this section or any other provision of the law. (c) In determining the amount of any civil penalty imposed pursuant to this section, the court shall take into consideration all relevant circumstances, including, but not limited to, the nature, circumstance, extent, and gravity of the violation. In making this determination, the court may consider the degree of toxicity and volume of the discharge, the extent of harm caused by the violation, whether the effects of the violation may be reversed or mitigated, and, with respect to the defendant, the ability to pay, the effect of any civil penalty on the ability to continue in business, any voluntary cleanup efforts undertaken, any prior history of violations, the gravity of the behavior, the economic benefit, if any, resulting from the violation, and any other matters the court determines that justice may require. (d) Every civil action brought under this section shall be brought by the Attorney General upon complaint by the department, or by the district attorney or city attorney in the name of the people of the State of California, and any actions relating to the same violation may be joined or consolidated. (e) (1) In any civil action brought pursuant to this chapter in which a temporary restraining order, preliminary injunction, or permanent injunction is sought, it is not necessary to allege or prove at any stage of the proceeding any of the following: (A) That irreparable damage will occur if the temporary restraining order, preliminary injunction, or permanent injunction is not issued. (B) That the remedy at law is inadequate. (2) The court shall issue a temporary restraining order, preliminary injunction, or permanent injunction in a civil action brought pursuant to this chapter without the allegations and without the proof specified in paragraph (1). (f) All civil penalties collected pursuant to this section shall not be considered fines or forfeitures as defined in Section 13003, and shall be apportioned in the following manner: (1) Fifty percent shall be distributed to the county treasurer of the county in which the action is prosecuted. Amounts paid to the county treasurer shall be deposited in the county fish and wildlife propagation fund established pursuant to Section 13100. (2) Fifty percent shall be distributed to the department for deposit in the Fish and Game Preservation Fund. These funds may be expended to cover the costs of any legal actions or for any other law enforcement purpose consistent with Section 9 of Article XVI of the California Constitution.  SEC. 6.   Section 2087 of the   Fish and Game Code   is amended to read:  2087. (a) Accidental take of candidate, threatened, or endangered species resulting from acts  , including, but not limited to, the diversion of water and use of water for agricultural purposes,  that occur on  or outside of the site of  a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by this chapter. (b) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2014, deletes or extends that date.  SECTION 1.   It is the intent of the Legislature to enact legislation that would clarify that the public trust doctrine does not extend to groundwater.