California Assembly Bill AB1704 Amended / Bill

 BILL NUMBER: AB 1704AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 16, 2016 INTRODUCED BY Assembly Member Dodd JANUARY 25, 2016 An act to amend Sections 1228.3, 1228.6, and 1229.1 of, and to repeal and add Section 1229 of, the Water Code, relating to water rights. LEGISLATIVE COUNSEL'S DIGEST AB 1704, as amended, Dodd. Water rights. Existing law requires applicants for appropriation of water for small domestic, small irrigation, or livestock stockpond use to register with the State Water Resources Control Board, as specified. Existing law requires the registration to include a certification that the registrant has contacted a representative of the Department of Fish and Wildlife and has agreed to comply with conditions set forth by the Department of Fish and Wildlife. This bill would, instead, require the registrant to provide a copy of the registrant's registration form to the Department of Fish and Wildlife and agree to general conditions, as specified. Existing law requires the board to establish general conditions to which all appropriations of water for small domestic, small irrigation, and livestock stockpond use are subject. This bill would require the board to consult with the Department of Fish and Wildlife in establishing these general conditions and  include in the general conditions   make  compliance with certain Fish and Game Code requirements applicable to the diversion of  water.   water one of these conditions. The bill would also declare that it is the intent of the Legislature that the general conditions simplify the issuance of registrations.  Under existing law, the board is not required to adopt general conditions for small irrigation use until the board determines that funds are available for that purpose and forbids registration for small irrigation use until these general conditions are established. This bill would, instead, require the board to adopt general conditions for small irrigation use meeting certain timelines, and would specify certain of those general conditions. The bill would impose certain fees for these purposes. Existing law  does not apply the conditions appropriating water for   exempts certain stream segments subject to minimum streamflow requirements under another law from these laws authorizing  small domestic, small irrigation, and livestock stockpond use  to certain stream segments.   of water upon proper registration.  This bill would, instead, permit the board to issue and renew appropriations on these stream segments if the registration is consistent with certain requirements established by the Director of Fish and Wildlife. 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. Section 1228.3 of the Water Code is amended to read: 1228.3. (a) Registration of water use pursuant to this article shall be made upon a form prescribed by the board. The registration form shall  set forth all of the following:   include instructions on how the registrant should comply with the general conditions adopted pursuant to Section 1228.6 and request the following from the registrant:  (1) The name and post office address of the registrant. (2) The source of water supply. (3) The nature and amount of the proposed use. (4) The proposed place of diversion. (5) The place where it is intended to use the water. (6) The time for completion of construction of diversion works and for complete application of the water to the proposed use. (7) A certification that the registrant has provided a copy of the completed registration form to a representative of the Department of Fish and Wildlife designated by the department for this purpose and agrees to comply with general conditions in accordance with Section 1228.6. (8) Any other information that may reasonably be required by the board. (b) Registration of water use shall be deemed completed on the date that the form, executed in substantial compliance with the requirements of this section, and the registration fee specified in Section 1525 are received by the board. (c) The board shall issue monthly a list of registrations filed under this article during the preceding calendar month. This list shall contain the information required by paragraphs (1) to (6), inclusive, of subdivision (a). The list shall set forth a date prior to which an interested person may file a written protest in opposition to the approval of a stockpond registration. That date shall be not later than 30 days from the date on which the list is issued. The board shall mail the monthly list of registrations filed to a person who requests the list. (d) Prior to the date set forth on the list required under subdivision (c), an interested person may file with the board a written protest in opposition to the approval of a stockpond registration. The protest shall clearly set forth the protestant's objections to the registered use based on interference with prior rights. The protest shall be served on the registrant by the protestant by mailing a duplicate copy of the protest to the registrant, or through service undertaken in another manner determined to be adequate by the board. The procedures set forth in Article 1.5 (commencing with Section 1345) of Chapter 5 shall be used for reviewing a protested registration. SEC. 2. Section 1228.6 of the Water Code is amended to read: 1228.6. (a)  (1)    The board shall, in consultation with the Department of Fish and Wildlife, establish, and may from time to time revise, reasonable general conditions to which all appropriations made pursuant to this article shall be subject. The conditions shall include, but shall not be limited to, the following:  (1)   (A)  The appropriation  is   shall be  subject to prior rights.  (2)   (B)  General conditions  shall be  applicable to the diversion of water as required by the Department of Fish and Wildlife to comply with the requirements in Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code.  The general conditions may include requirements applicable only to specific methods of diversion or categories of registration, commensurate with the project's environmental impact. These requirements may include, but shall not be limited to, both of the following:   (i) An assessment to avoid potential site-specific impacts on fish and wildlife resources.   (ii) Submission of site-specific information.   (3)   (C)  Diversion works shall be constructed and water applied to beneficial use with due diligence.  (4)   (D)  Registration shall be renewed and water use reported pursuant to law and to the rules of the board.  (2) It is the intent of the Legislature that the board and the Department of Fish and Wildlife adopt general conditions that simplify the issuance of registrations in a cost-effective and environmentally protective manner, and the regulatory burden of complying with the general conditions be commensurate with the complexity and number of resources potentially affected by the registration.  (b) Immediately upon registration pursuant to Section 1228.3, renewal of registration pursuant to Section 1228.5, or amended registration pursuant to Section 1228.7, the board shall provide the registrant with a written document setting forth the conditions required by this section, and the perfection and exercise of rights acquired pursuant to this article shall at all times be subject to those conditions. (c) The conditions required by this section shall be deemed "terms and conditions" within the meaning of Section 1825 and the expression of legislative intent contained in that section shall be applicable thereto. The authority of the board to enforce the terms and conditions of permits and licenses to appropriate water, and to prevent the unlawful diversion of water, including, but not limited to, provisions regarding cease and desist orders and the revocation of permits and licenses, shall be applicable to appropriations initiated or perfected pursuant to this article. SEC. 3. Section 1229 of the Water Code is repealed. SEC. 4. Section 1229 is added to the Water Code, to read: 1229. (a) The board, no later than June 30, 2017, shall adopt general conditions  for facilities to   that would permit a registrant to construct a facility that would  store water for small irrigation use during  times of  high stream flow  resulting in the reduction of existing   in exchange for that registrant reducing  diversions during periods of low stream flow, pursuant to Section 1228.6 and this section, for the following:  (1) Three classes of diversions as follows:   (A) Diversions to off-stream storage reservoirs with points of diversion located on Class I, II, or III streams.   (B) Diversions to on-stream storage reservoirs located on Class II or Class III streams, except streams within the area described in paragraph (1) of subdivision (a) of Section 1259.4.   (C) Diversions to on-stream storage reservoirs located on Class III streams within the area described in paragraph (1) of subdivision (a) of Section 1259.4, which shall be deemed to adequately address the principles described in Section 2.2 of the North Coast Instream Flows Policy adopted by the board on October 22, 2013, and any subsequent amendments.   (1) (A) Diversions from coastal streams entering the Pacific Ocean and streams entering the San Francisco Bay to off-stream storage reservoirs or on-stream storage reservoirs located on stream reaches where fish are not present.   (2) (A)   (B)  Diversions  under this paragraph  from watersheds that support salmonid fisheries and from drainage areas of one square mile or less shall be subject to the following general conditions: (i) Diversions from drainage areas greater than 0.50 square miles but no more than one square mile shall occur only from November 1 to March 31 of each year and only when stream flow exceeds the February median flow at the point of diversion. (ii) Diversions from drainage areas greater than 0.25 square miles but no more than 0.50 square miles shall occur only when stream flow exceeds the February median flow at the point of diversion. (iii) Diversions from drainage areas 0.25 square miles or less may occur without season of diversion or minimum bypass requirements.  (B)   (C)  No diversion under this paragraph may result in a cumulative stream flow depletion at the one square mile drainage that exceeds 10 percent of the average annual volume of stream flow.  (2) Diversions from other streams for which, in the judgment of the board, the reduction in existing diversions during low flow periods will result in a benefit to fish and wildlife.   (3) The following shall be included in the general conditions for facilities   (b)     Facilities  to store water for small irrigation use adopted pursuant to  this subdivision:   subdivision (a) are subject to the following general conditions:   (A)   (1)  No water shall be diverted or used under the registration, and no construction related to the diversion shall commence, until the applicant has obtained and is in compliance with all necessary permits and other approvals required by other agencies.  (B)  (2)  Pursuant to Sections 100 and 275 and the common law public trust doctrine, all appropriations made under  this section,   subdivision (a),  including the method of diversion, purpose of water use, and quantity of water diverted, are subject to the continuing authority of the board in accordance with law and in the interest of the public welfare to protect public trust uses and to prevent waste, unreasonable use, unreasonable purpose of use, or unreasonable method of diversion of water.  (C) (i)   (3)     (A)    Diversion of water under the appropriation is subject to prior rights. An applicant may be required to curtail diversion or release water stored during the most recent collection season if diversion under the appropriation results in injury to holders of legal downstream senior water rights.  (ii)   (B)  If the applicant holds collected water in a reservoir, as defined by Section 6004.5, the applicant may be required to bypass or release water through, over, or around the dam. If the release of the collected water would not effectively satisfy the prior downstream water rights, the applicant may be required to otherwise compensate the holders of the prior rights for any injury caused.  (D)   (4)  All appropriations are issued subject to available flows. If the source contains treated wastewater, water imported from another stream system, or return flow from other projects, the state makes no guarantee that the supply will continue.  (E)   (5)  The appropriation does not authorize any act that results in the taking of a threatened, endangered, or candidate species, or any act that is now prohibited, or becomes prohibited in the future, under either the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) or the federal Endangered Species Act (16 U.S.C. Section 1531 et seq.).  (F)   (6)  The appropriation is subject to the applicable board water measurement and reporting regulations.  (b)   (c)  The board shall adopt general conditions and, if necessary, amend existing general conditions for the registration of small irrigation use for purposes not described in subdivision (a) no later than June 30, 2018.  (c) Notwithstanding subdivision (b) of   (d)     In addition to any fees imposed by   the board in accordance with  Section 1228.3 and Section 1525, the  minimum   following fees for small irrigation use registrations shall be  the following:   paid to the Department of Fish and Wildlife:    (1) A registration fee of five hundred dollars  ($500) shall be paid to the board and a registration fee of five hundred dollars ($500) shall be paid to the Department of Fish and Wildlife.   ($500).  (2) A renewal of registration fee of two hundred fifty dollars  ($250) shall be paid to the board and a renewal of registration fee of two hundred fifty dollars ($250) shall be paid to the Department of Fish and Wildlife.   ($250).  SEC. 5. Section 1229.1 of the Water Code is amended to read: 1229.1. The board may issue and renew registrations on those stream segments for which the Director of Fish and Wildlife establishes proposed streamflow requirements pursuant to Section 10002 of the Public Resources Code, if the registration includes conditions consistent with the proposed streamflow requirements.