AB 1704: Water rights: small irrigation use: lake or streambed alteration agreements.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-06-20
Existing law, the Water Rights Permitting Reform Act of 1988, authorizes a person to obtain a right to appropriate water for a small domestic use, small irrigation use, or livestock stockpond use upon first registering the use, as those uses are defined by the act, with the State Water Resources Control Board and thereafter applying the water to reasonable and beneficial use with due diligence. The act requires the registration of water use to be made upon a form prescribed by the board that requires, among other things, 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. The act requires the board to establish reasonable general conditions to which all appropriations made pursuant to the act are required to be subject, including, among other things, that all conditions lawfully required by the department are conditions upon the appropriations. The act provides that 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 that a registration for small irrigation use pursuant to the act is not authorized until the board establishes general conditions for small irrigation use to protect instream beneficial uses, as specified.
This bill would require the board, on or before January 1, 2018, to adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high streamflow in exchange for the registrant reducing diversions during periods of low streamflow, as specified. The bill would require the board, on or before June 30, 2019, to adopt general conditions and, if necessary, amend existing general conditions for the registration of small irrigation use for other purposes.
Existing law exempts certain stream segments subject to certain minimum streamflow requirements from the provisions of the act upon proper registration.
This bill would instead authorize the board to issue and renew registrations on those stream segments if the registration includes conditions consistent with the applicable streamflow requirements.
Existing law prohibits an entity 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 from depositing certain material where it may pass into any river, stream, or lake, without first notifying the department of that activity and entering into a lake or streambed alteration agreement, if required by the department to protect fish and wildlife resources. Under existing law, it is unlawful for any person to violate these notification and agreement provisions and a person who violates them is also subject to a civil penalty of not more than $25,000 for each violation.
This bill would require the department, if an activity includes the diversion of water and the notification for the activity is accompanied with a proposed registration of water use, a renewal of registration, or an amended registration, to determine whether it is complete in the same manner as it determines whether a notification is complete and to propose any lawful conditions on the registration in a draft agreement. The bill would provide that lawful conditions on a registration that are included in a final lake or streambed alteration agreement are deemed conditions upon the appropriations of water under the registration. The bill would state the intent of the Legislature that these provisions simplify and reduce the regulatory burden for activities that require both notification to the department of the activity and registration of the water use pursuant to the act. Because the violation of a lake or streambed alteration agreement is a crime, by including lawful conditions on a registration in a final lake or streambed alteration agreement, this bill would impose a state-mandated local program.
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 no reimbursement is required by this act for a specified reason.
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 registrants registration form to the Department of Fish and Wildlife and, for registration for small irrigation use, agree to specified general conditions.
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 end the application of these general conditions to small irrigation use and would instead require the board, in consultation with the Department of Fish and Wildlife, to establish general conditions specific to small irrigation use, as specified. The bill would require the Department of Fish and Wildlife to adopt general conditions applicable to the diversion of water upon determining that funds are available for that purpose. 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 exempts certain stream segments subject to minimum streamflow requirements under another law from these laws authorizing small domestic, small irrigation, and livestock stockpond use 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.
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 registrants registration form to the Department of Fish and Wildlife and and, for registration for small irrigation use, agree to specified general conditions, as specified. conditions.
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 end the application of these general conditions to small irrigation use and would instead require the board to consult board, in consultation with the Department of Fish and Wildlife in establishing these Wildlife, to establish general conditions and make compliance with certain Fish and Game Code requirements specific to small irrigation use, as specified. The bill would require the Department of Fish and Wildlife to adopt general conditions applicable to the diversion of water one of these conditions. water upon determining that funds are available for that purpose. 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 exempts certain stream segments subject to minimum streamflow requirements under another law from these laws authorizing small domestic, small irrigation, and livestock stockpond use 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.
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 registrants 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 make compliance with certain Fish and Game Code requirements applicable to the diversion of 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 exempts certain stream segments subject to minimum streamflow requirements under another law from these laws authorizing small domestic, small irrigation, and livestock stockpond use 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.
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 registrants 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.
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 registrants 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 compliance with certain Fish and Game Code requirements applicable to the diversion of water.
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 small domestic, small irrigation, and livestock stockpond use to certain stream segments.
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.
(a)An entity may shall not 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 projects 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, 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 has substantially changed.
(B)Conditions affecting fish and wildlife resources have substantially changed, and those resources are 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)If an activity includes the diversion of water and the notification for the activity is accompanied with a proposed registration, renewal of registration, or amended registration of water use pursuant to Section 1228.3, 1228.5, or 1228.7 of the Water Code, the department shall do both of the following:
(A)Determine whether the proposed registration, renewal of registration, or amended registration of water use is complete in the same manner as it determines whether a notification is complete in accordance with paragraph (2) of subdivision (a).
(B)Propose any lawful conditions on the registration, including, but not limited to, conditions upon the construction and operation of diversion works as authorized by Section 1228.3 of the Water Code, in a draft agreement issued pursuant to Section 1603.
(2)Any conditions on a registration that are included in a final agreement issued pursuant to Section 1603 shall be deemed conditions upon the appropriation as provided in paragraph (2) of subdivision (a) of Section 1228.6 of the Water Code.
(3)It is the intent of the Legislature that this subdivision simplify and reduce the regulatory burden for activities that require notification pursuant to this section and the registration of water use pursuant to Article 2.7 (commencing with Section 1228) of Chapter 1 of Part 2 of Division 2 of the Water Code.
(c)
(d)It is unlawful for any person to violate this chapter.
SEC. 2.Section 1229 of the Water Code is amended to read:1229.(a)The board is not required to adopt general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 and this section until the board determines that funds are available for that purpose.
(b)A registration for small irrigation use pursuant to this article is not authorized until the board establishes general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 to protect instream beneficial uses.
(c)The board may establish general conditions for some methods of diversion or categories of small irrigation use before establishing general conditions for other methods or categories, in which case a registration for small irrigation use is authorized only for those methods or categories for which the board has established the general conditions for the protection of instream beneficial uses.
(d)On or before January 1, 2018, the board shall adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high streamflow in exchange for that registrant reducing diversions during periods of low streamflow, pursuant to this section, as follows:
(1)For diversions from coastal streams entering the Pacific Ocean and streams entering the San Francisco Bay for the following:
(A)Off-stream storage reservoirs.
(B)On-stream storage reservoirs located on stream reaches where fish are not present.
(2)For diversions from streams not described in paragraph (1) that, in the judgment of the board, the reduction in existing diversions during low flow periods will result in a benefit to fish and wildlife.
(e)On or before June 30, 2019, 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 (d).
SEC. 3.Section 1229.1 of the Water Code is amended to read:1229.1.(a)This article does not apply to 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, notwithstanding the July 1, 1989, deadline for preparation of the requirements. Code and for which the state board has adopted streamflow requirements, the board may issue and renew a registration in accordance with this article if the registration includes conditions consistent with the applicable streamflow requirements.
(b)Notwithstanding subdivision (a), this article applies to a registration filed before the Director of Fish and Wildlife establishes proposed streamflow requirements for the source of water supply for the registration. The conditions for renewal under subdivision (c) of Section 1228.5 may include any conditions the Department of Fish and Wildlife determines to be necessary to protect stream-related fish and wildlife resources on a source of water supply for which the Director of Fish and Wildlife has established proposed streamflow requirements pursuant to Section 10002 of the Public Resources Code.
SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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 include instructions on how the registrant should comply with the general conditions adopted pursuant to Section 1228.6 or 1229, as applicable, 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 or 1229, as applicable.
(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 protestants 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)The board shall establish, and may from time to time revise, reasonable general conditions to which all appropriations, other than small irrigation use, made pursuant to this article shall be subject. The conditions shall include, but shall not be limited to, the following:
(1)The appropriation is subject to prior rights.
(2)All conditions lawfully required by the Department of Fish and Wildlife are conditions upon the appropriations.
(3)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(4)Registration shall be renewed and water use reported pursuant to law and to the rules of the board.
(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 shall, in consultation with the Department of Fish and Wildlife, establish and may from time to time revise, reasonable general conditions for small irrigation use. The general conditions may include requirements applicable only to specific methods of diversion or categories of registration, commensurate with the projects environmental impact. These conditions shall include, but shall not be limited to, the following:
(1)The appropriation shall be subject to prior rights.
(2)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(3)Registration shall be renewed and water use reported pursuant to law and to the rules of the board.
(4)The conditions required by the Department of Fish and Wildlife pursuant to subdivision (b).
(b)The Department of Fish and Wildlife shall adopt general conditions applicable to the diversion of water 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, which may include the following:
(1)An assessment to avoid potential site-specific impacts on fish and wildlife resources.
(2)Submission of site-specific information.
(3)Consultation with the Department of Fish and Wildlife regarding the findings of site specific-assessments and information.
(4)Implementation of additional measures the Department of Fish and Wildlife lawfully deems necessary to avoid site-specific impacts, identified pursuant to paragraphs (1) to (3), inclusive, on fish and wildlife resources.
(c)(1)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 type of resources potentially affected by the registration.
(2)The Department of Fish and Wildlife is not required to adopt general conditions for small irrigation use pursuant to this section until it determines that funds are available for that purpose.
(3)The board may continue to approve small irrigation use appropriations pursuant to any general conditions in effect pursuant to Section 1228.6 or 1229, as each read on December 31, 2016, which shall include any conditions lawfully required by the Department of Fish and Wildlife, before the adoption of general conditions pursuant to this section by the Department of Fish and Wildlife.
(d)The board, no later than June 30, 2017, shall adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high stream flow in exchange for that registrant reducing diversions during periods of low stream flow, pursuant to this section, for the following:
(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.
(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.
(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.
(e)Facilities to store water for small irrigation use adopted pursuant to subdivision (d) are subject to the following general conditions:
(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.
(2)Pursuant to Sections 100 and 275 and the common law public trust doctrine, all appropriations made under subdivision (d), 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.
(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.
(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.
(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.
(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.).
(6)The appropriation is subject to the applicable board water measurement and reporting regulations.
(f)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 (d) no later than June 30, 2018.
(g)In addition to any fees imposed by the board in accordance with Section 1228.3 and Section 1525, the following fees for small irrigation use registrations shall be paid to the Department of Fish and Wildlife:
(1)A registration fee of five hundred dollars ($500).
(2)A renewal of registration fee of two hundred fifty dollars ($250).
(h)Beginning January 1, 2020, the board may periodically adopt regulations to update the general conditions specified in this section.
(i)(1)A registration for small irrigation use pursuant to this article is not authorized until the board establishes general conditions for small irrigation use pursuant to this section.
(2)The board may establish general conditions for some methods of diversion or categories of small irrigation use before establishing general conditions for other methods or categories, in which case a registration for small irrigation use is authorized only for those methods or categories for which the board has established general conditions for the protection of instream beneficial uses.
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.
(a)Registration of water use pursuant to this article shall be made upon a form prescribed by the board. The registration form shall include instructions on how the registrant should comply with the general conditions adopted pursuant to Section 1228.6 or 1229, as applicable, 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. 1228.6 or 1229, as applicable.
(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 protestants 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:
(A)The appropriation shall be subject to prior rights.
(B)General conditions 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 projects environmental impact. These requirements may include, but shall not be limited to, each of the following:
(i)An assessment to avoid potential site-specific impacts on fish and wildlife resources.
(ii)Submission of site-specific information.
(iii)Consultation with the Department of Fish and Wildlife regarding the findings of the site-specific assessments and information.
(iv)Implementation of additional measures the Department of Fish and Wildlife lawfully deems necessary to avoid site-specific impacts, identified pursuant to clauses (i) to (iii), inclusive, on fish and wildlife resources.
(C)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(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. 2.Section 1228.6 of the Water Code is amended to read:1228.6.(a)The board shall establish, and may from time to time revise, reasonable general conditions to which all appropriations appropriations, other than small irrigation use, made pursuant to this article shall be subject. The conditions shall include, but shall not be limited to, the following:
(1)The appropriation is subject to prior rights.
(2)All conditions lawfully required by the Department of Fish and Wildlife are conditions upon the appropriations.
(3)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(4)Registration shall be renewed and water use reported pursuant to law and to the rules of the board.
(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, board shall, in consultation with the Department of Fish and Wildlife, establish and may from time to time revise, reasonable general conditions for small irrigation use. The general conditions may include requirements applicable only to specific methods of diversion or categories of registration, commensurate with the projects environmental impact. These conditions shall include, but shall not be limited to, the following:
(1)The appropriation shall be subject to prior rights.
(2)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(3)Registration shall be renewed and water use reported pursuant to law and to the rules of the board.
(4)The conditions required by the Department of Fish and Wildlife pursuant to subdivision (b).
(b)The Department of Fish and Wildlife shall adopt general conditions applicable to the diversion of water 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, which may include the following:
(1)An assessment to avoid potential site-specific impacts on fish and wildlife resources.
(2)Submission of site-specific information.
(3)Consultation with the Department of Fish and Wildlife regarding the findings of site specific-assessments and information.
(4)Implementation of additional measures the Department of Fish and Wildlife lawfully deems necessary to avoid site-specific impacts, identified pursuant to paragraphs (1) to (3), inclusive, on fish and wildlife resources.
(c)(1)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 type of resources potentially affected by the registration.
(2)The Department of Fish and Wildlife is not required to adopt general conditions for small irrigation use pursuant to this section until it determines that funds are available for that purpose.
(3)The board may continue to approve small irrigation use appropriations pursuant to any general conditions in effect pursuant to Section 1228.6 or 1229, as each read on December 31, 2016, which shall include any conditions lawfully required by the Department of Fish and Wildlife, before the adoption of general conditions pursuant to this section by the Department of Fish and Wildlife.
(d)The board, no later than June 30, 2017, shall adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high stream flow 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)(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.
(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.
(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.
(b)
(e)Facilities to store water for small irrigation use adopted pursuant to subdivision (a) (d) are subject to the following general conditions:
(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.
(2)Pursuant to Sections 100 and 275 and the common law public trust doctrine, all appropriations made under subdivision (a), (d), 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.
(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.
(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.
(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.
(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.).
(6)The appropriation is subject to the applicable board water measurement and reporting regulations.
(c)
(f)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) (d) no later than June 30, 2018.
(d)
(g)In addition to any fees imposed by the board in accordance with Section 1228.3 and Section 1525, the following fees for small irrigation use registrations shall be paid to the Department of Fish and Wildlife:
(1)A registration fee of five hundred dollars ($500).
(2)A renewal of registration fee of two hundred fifty dollars ($250).
(e)
(h)Beginning January 1, 2020, the board may periodically adopt regulations to update the general conditions specified in this section.
(f)
(i)(1)A registration for small irrigation use pursuant to this article is not authorized until the board establishes general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 and this section.
(2)The board may establish general conditions for some methods of diversion or categories of small irrigation use before establishing general conditions for other methods or categories, in which case a registration for small irrigation use is authorized only for those methods or categories for which the board has established general conditions for the protection of instream beneficial uses.
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.
(a)Registration of water use pursuant to this article shall be made upon a form prescribed by the board. The registration form shall 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 protestants 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:
(A)The appropriation shall be subject to prior rights.
(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 projects environmental impact. These requirements may include, but shall not be limited to, both each of the following:
(i)An assessment to avoid potential site-specific impacts on fish and wildlife resources.
(ii)Submission of site-specific information.
(iii)Consultation with the Department of Fish and Wildlife regarding the findings of the site-specific assessments and information.
(iv)Implementation of additional measures the Department of Fish and Wildlife lawfully deems necessary to avoid site-specific impacts, identified pursuant to clauses (i) to (iii), inclusive, on fish and wildlife resources.
(C)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(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 that would permit a registrant to construct a facility that would store water for small irrigation use during times of high stream flow 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)(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.
(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.
(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.
(b)Facilities to store water for small irrigation use adopted pursuant to subdivision (a) are subject to the following general conditions:
(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.
(2)Pursuant to Sections 100 and 275 and the common law public trust doctrine, all appropriations made under 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.
(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.
(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.
(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.
(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.).
(6)The appropriation is subject to the applicable board water measurement and reporting regulations.
(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.
(d)In addition to any fees imposed by the board in accordance with Section 1228.3 and Section 1525, the following fees for small irrigation use registrations shall be paid to the Department of Fish and Wildlife:
(1)A registration fee of five hundred dollars ($500).
(2)A renewal of registration fee of two hundred fifty dollars ($250).
(e)Beginning January 1, 2020, the board may periodically adopt regulations to update the general conditions specified in this section.
(f)(1)A registration for small irrigation use pursuant to this article is not authorized until the board establishes general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 and this section.
(2)The board may establish general conditions for some methods of diversion or categories of small irrigation use before establishing general conditions for other methods or categories, in which case a registration for small irrigation use is authorized only for those methods or categories for which the board has established general conditions for the protection of instream beneficial uses.
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.
(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 protestants 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 projects 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.
(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:
(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 contacted a representative of the Department of Fish and Wildlife designated by that department for that purpose, has provided information to that department that is set forth in the registration form, and has agreed to comply with all lawful conditions, including, but not limited to, conditions upon the construction and operation of diversion works, required by the Department of Fish and Wildlife. The certification shall include a copy of any conditions required by the Department of Fish and Wildlife pursuant to this paragraph. 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 protestants 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)The board shall 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)The appropriation is subject to prior rights.
(2)All conditions lawfully required by the Department of Fish and Wildlife are conditions upon the appropriations. General conditions 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.
(3)Diversion works shall be constructed and water applied to beneficial use with due diligence.
(4)Registration shall be renewed and water use reported pursuant to law and to the rules of the board.
(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.1229.(a)The board is not required to adopt general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 until the board determines that funds are available for that purpose.
(b)A registration for small irrigation use pursuant to this article is not authorized until the board establishes general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 to protect instream beneficial uses.
(c)The board may establish general conditions for some methods of diversion or categories of small irrigation use before establishing general conditions for other methods or categories, in which case a registration for small irrigation use is authorized only for those methods or categories for which the board has established the general conditions for the protection of instream beneficial uses.
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 store water for small irrigation use during high stream flow resulting in the reduction of existing 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.
(2)(A)Diversions 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) 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.
(3)The following shall be included in the general conditions for facilities to store water for small irrigation use adopted pursuant to this subdivision:
(A)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)Pursuant to Sections 100 and 275 and the common law public trust doctrine, all appropriations made under this section, 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)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)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)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)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)The appropriation is subject to the applicable board water measurement and reporting regulations.
(b)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 Section 1228.3 and Section 1525, the minimum fees for small irrigation use registrations shall be the following:
(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.
(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.
SEC. 5.Section 1229.1 of the Water Code is amended to read:1229.1.(a)This article does not apply to 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, notwithstanding the July 1, 1989, deadline for preparation of the requirements. Code, if the registration includes conditions consistent with the proposed streamflow requirements.
(b)Notwithstanding subdivision (a), this article applies to a registration filed before the Director of Fish and Wildlife establishes proposed streamflow requirements for the source of water supply for the registration. The conditions for renewal under subdivision (c) of Section 1228.5 may include any conditions the Department of Fish and Wildlife determines to be necessary to protect stream-related fish and wildlife resources on a source of water supply for which the Director of Fish and Wildlife has established proposed streamflow requirements pursuant to Section 10002 of the Public Resources Code.
|
Date
|
Status
|
|---|---|
| Jun 1, 2016 | Assembly Rule 63 suspended. |
| Aug 11, 2016 | In committee: Held under submission. |
| Aug 1, 2016 | In committee: Referred to APPR. suspense file. |
| Jun 29, 2016 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 8. Noes 0.) (June 28). Re-referred to Com. on APPR. |
| Jun 20, 2016 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on N.R. & W. |
| Jun 9, 2016 | Referred to Com. on N.R. & W. |
| Jun 2, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Jun 1, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 70. Noes 2.) |
| Jun 1, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 70. Noes 2. Page 5142.) |
| Jun 1, 2016 | Read third time. Passed. Ordered to the Senate. |
| Jun 1, 2016 | Read second time. Ordered to third reading. |
| Jun 1, 2016 | Assembly Rule 63 suspended. (Page 5120.) |
| Jan 25, 2016 | Read first time. To print. |
| May 31, 2016 | Read second time and amended. Ordered returned to second reading. |
| May 27, 2016 | From committee: Amend, and do pass as amended. (Ayes 15. Noes 0.) (May 27). |
| Apr 27, 2016 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Mar 31, 2016 | Re-referred to Com. on APPR. |
| Mar 30, 2016 | Read second time and amended. |
| Mar 29, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 11. Noes 1.) (March 29). |
| Mar 17, 2016 | Re-referred to Com. on W., P., & W. |
| Mar 16, 2016 | From committee chair, with author's amendments: Amend, and re-refer to Com. on W., P., & W. Read second time and amended. |
| Feb 8, 2016 | Referred to Com. on W., P., & W. |
| Jan 26, 2016 | From printer. May be heard in committee February 25. |
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Date
|
Description
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Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 1, 2016 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jun 28, 2016 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Natural Resources and Water |
Passed |
|
| Jun 1, 2016 | AB 1704 DODD Assembly Third Reading | Assembly Floor |
Passed |
|
| May 27, 2016 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Mar 29, 2016 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Water, Parks, and Wildlife |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Association Of California Water Agencies | ** Support | Mar 29, 2016 |
| California Association Of Winegrape Growers | * Support | Mar 29, 2016 |
| California Association Of Winegrape Growers | * Indeterminate | Mar 29, 2016 |
| California Trout | * Indeterminate | Mar 29, 2016 |
| Sierra Club California | ** Against | Mar 29, 2016 |
| Sonoma County Water Agency | * Support | Mar 29, 2016 |
| Sonoma County Water Agency | * Indeterminate | Mar 29, 2016 |
| Wine Institute | ** Support | Mar 29, 2016 |
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1704 (Dodd) - Water rights: small irrigation use: lake or streambed alteration agreements
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 1704 requires the State Water Resources Control Board (SWRCB) in consultation with the California Department of Fish and Wildlife (CDFW) to adopt general conditions for registrants to divert and store water for small irrigation uses, as specified.
Fiscal Impact: According to the SWRCB and the CDFW, this bill will result in significant costs, likely in the tens of millions (General Fund), as indicated below. (See staff comments).
- Approximately $3 million annually for about 10 years for SWRCB to develop general conditions.
- A total of $11 million in contract funds to SWRCB associated with the California Environmental Quality Act (CEQA) activities.
- Approximately $2 million for CDFW to work with SWRCB to develop general conditions specific to the protection of fish and wildlife.
- Unknown, but significant costs, potentially in the low millions to CDFW to review and approve additional permit applications.
Background:
Under current law, individuals intending to appropriate water from state streams and rivers must file an application to appropriate water with the SWRCB. The water must be put to reasonable and beneficial use, and is subject to limitations based on available water and water rights that have already been established. Current law provides for a simplified process for individuals that seek a registration to appropriate water for small domestic use or livestock stockpond use, provided that 1) the water is put to beneficial use, 2) there is sufficient water available, and 3) the maximum diversion is less than 4,500 gallons per day or for storage of less than 10 acre-feet per year.
Individuals are required to pay fees to the SWRCB to cover the costs of regulating water rights issues. When applications to appropriate water are made, the SWRCB is the lead agency for any environmental review required under the California Environmental Quality Act (CEQA).
Also under current law, applications to divert water may trigger the need for a Lake and Streambed Alteration Agreement (LSA) from the Department of Fish and Wildlife (CDFW), depending on the size, nature, and potential impacts of the diversion. Under current practice, if CDFW needs to issue an LSA, it relies on the environmental analysis performed by the SWRCB.
AB 964 (Huffman) authorized the registration of diversions for “small irrigation use” which is defined as water used for irrigation uses, heat control, and frost protection. Diversions may not exceed 42,000 gallons per day or for storage of more than 20 acre-feet per year. The bill also required the SWRCB to develop conditions for small irrigation use before any registrations can be made.
Currently small irrigation use registrations are only available in a small part of the state. According to CDFW, the general conditions were largely based on existing science. The CDFW has only received a small amount of applications for small irrigation use registrations and is able to approve complete most applications within two months.
Proposed Law:
This bill:
- Requires the CDFW, for proposed, renewal, or amended registration (registration) of water use, to (1) determine whether the registration is complete and (2) propose any lawful conditions.
- States legislative intent to simplify and reduce the regulatory burden for activities that require notification and the registration of water
- Requires the SWRCB to adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high streamflow in exchange for that registrant reducing diversions during periods of low streamflow, as follows:
- For diversions from coastal streams entering the Pacific Ocean and streams entering the San Francisco Bay for the following:
- Off-stream storage reservoirs.
- On-stream storage reservoirs located on stream reaches where fish are not present.
- For diversions from streams not described above that, in the SWRCB’s judgment, the reduction in existing diversions during low flow periods will result in a benefit to fish and wildlife.
- For diversions from coastal streams entering the Pacific Ocean and streams entering the San Francisco Bay for the following:
- On or before June 30, 2019, the SWRCB shall adopt general conditions and, if necessary, amend existing general conditions for the registration of small irrigation use for purposes not described in subdivision (d).
- Authorizes the SWRCB to issue and renew a registration for which the SWRCB has adopted streamflow requirements if the registration includes conditions consistent with the applicable streamflow requirements.
Related Legislation:
AB 964 (Huffman) authorized the registration of diversions for “small irrigation use” which is defined as water used for irrigation uses, heat control, and frost protection. Diversions may not exceed 42,000 gallons per day or for storage of more than 20 acre-feet per year. The bill also required the SWRCB to develop conditions for small irrigation use before any registrations can be made.
SB 837 (Committee on Budgets, Chapter, Statutes of 2016), among other things, outlines requirements for water diversions associated with marijuana cultivation.
Staff Comments:
Purpose. This bill intends to streamline the current permitting process. According to the sponsor, “In 2011, AB 964 was enacted to create a program whereby growers could obtain a temporary water right to divert water into small irrigation ponds. The purpose of this measure was to ease the burden of obtaining authorization for these projects, as they provide significant environmental benefits by allowing growers to divert water during high stream flows and avoid such diversions during low stream flows. This both enhances growers’ water security, and protects natural resources.”
“Unfortunately, since the bill’s enactment, very few registrations have been processed. The principal reason identified for this was that the still-burdensome process of obtaining these rights has led growers to conclude that the program is not worth applying for vs. the more durable right that can be obtained through the more traditional water right process. This bill aims to make the registration process more user-friendly for growers in order to encourage these beneficial projects.”
As noted by the Senate Natural Resources and Water Committee, while there is general agreement that the current process is less than ideal. This bill focuses mostly on trying to speed up CDFW’s streambed alteration permitting process. Another view might be that there are significant and unique site specific issues associated with small irrigation use that are not easily resolved.
Additionally, this bill would require the SWRCB to adopt general conditions for facilities that would store water for small irrigation use during times of high stream flow in exchange for that registrant reducing diversions during periods of low stream flow. The CDFW indicates that it would also have to develop general conditions for small irrigation uses, if the SWRCB’s general conditions do not include measures to protect fish and wildlife resources, or are not protective under all circumstances. This bill would give each entity about a year to develop and adopt those general conditions. This is a very short timeline given that adopting such conditions would require significant scientific analysis and would need to comply with CEQA.
Both the SWRCB and CDFW developed fiscal estimates based on their respective experiences with implementation of AB 964. This bill will invariably result in significant up-front costs to develop the general conditions. Ongoing costs will be based, in part, on the number of applications. It is unclear how the process outlined in the bill will address concerns with the current streamlined process, and consequently how much it will increase demand for the program.
According to CDFW, this bill poses workload in two different permitting areas: water rights and lake and streambed alteration (LSA).
Funding the water rights workload with permit-related revenue like LSA fees would not be appropriate and the current water rights fees do not support the level of effort required of CDFW to develop lawful terms and conditions on small irrigation use registrations. Positions and funding will be needed to perform these tasks. Water diversion/water registration workload requires an inordinate amount of staff time compared to other permitting activities like stream crossings and vegetation removal projects. Water diversion projects involve continuous or long-duration activities (i.e. near-constant water withdrawal and site maintenance) that often require multiple site visits spread over the five year permit period. In addition, environmental analyses required for water diversion projects are often onerous, usually involving multiple stream flow measurements conducted before and during active water diversion. The higher risk associated with many water diversion projects also requires an increase in initial habitat assessment and on-going implementation and effectiveness monitoring.
Under the existing fee structure, the LSA program is notably underfunded and has been directed to undertake a $640,000 reduction for FY 16/17.
The SWRCB relies on the Department to develop public trust conditions for water rights, including small irrigation use registrations. The time involved for the Department to develop project-specific terms and conditions on registrations to ensure protection of fish and wildlife is significant. Registrations are renewed every 5 years and terms or conditions may need to be adjusted on an ongoing basis as new information becomes available or additional impacts occur. This requires collection of data and potential revision of lawful terms and conditions on an ongoing basis.
State mandate. This bill constitutes a state mandate. However, under the California Constitution, costs associated legislation defining a new crime or changing an existing definition of a crime are not reimbursable.
-- END --
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB Hearing Date: June 28, 2016
Author: | Dodd | ||
Version: | May 31, 2016 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Dennis O'Connor | ||
Subject: Water rights
BACKGROUND AND EXISTING LAW
Under current law, any person may obtain a right to appropriate water for a small domestic, small irrigation, or livestock stockpond use by registering the use with the State Water Resources Control Board (state board) and then putting the water to reasonable and beneficial use, subject to certain conditions.
One of the conditions requires the registration to include a certification that the registrant has contacted a representative of the Department of Fish and Wildlife (DFW) and has agreed to comply with conditions set forth by DFW in what is often referred to as a section 1602 or “streambed alteration” permit. These permits establish the conditions under which a permittee may “substantially divert or obstruct the natural flow of, or substantially change or use any material from the streambed.”
Current law also requires the state board to establish general conditions to which all appropriations of water for small domestic, small irrigation, and livestock stockpond use are subject. The Board adopted the general conditions for small irrigation use registrations on 9/20/13 and for small domestic and livestock stockpond uses on 1/27/14.
PROPOSED LAW
This bill would:
- Provide that for a proposed registration, renewal of registration, or amended registration of water use for a small domestic, small irrigation, or livestock stockpond, DFW’s review and establishment of conditions on the appropriation of water for that stockpond would be as follows:
- DFW would determine if the notification is complete in accordance with the Permit Streamlining Act.
- DFW would propose any lawful conditions on the registration in a draft agreement.
- Any conditions on a registration that are included in a final agreement would be deemed conditions on the water rights.
- Require the state water board, by January 1, 2018, to adopt general conditions that would permit a registrant to construct a facility that would store water for small irrigation use during times of high stream flow in exchange for that registrant reducing diversions during periods of low stream flow, pursuant to this section, for the following:
- Diversions from coastal streams entering the Pacific Ocean and streams entering the San Francisco Bay for off-stream storage reservoirs and on-stream storage reservoirs located on stream reaches where fish are not present.
- 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.
- Further require the state water board, by June 30, 2019, to adopt general conditions and, if necessary, amend existing general conditions for the registration of small irrigation use for purposes not described above.
- Clarify provisions regarding the application of the stockpond registration provisions in the Water Code concerning stream segments for which the Director of DFW has established minimum streamflow requirements.
ARGUMENTS IN SUPPORT
According to the author, “In 2011, AB 964 was enacted to create a program whereby growers could obtain a temporary water right to divert water into small irrigation ponds. The purpose of this measure was to ease the burden of obtaining authorization for these projects, as they provide significant environmental benefits by allowing growers to divert water during high stream flows and avoid such diversions during low stream flows. This both enhances growers’ water security, and protects natural resources.”
“Unfortunately, since the bill’s enactment, very few registrations have been processed. The principal reason identified for this was that the still-burdensome process of obtaining these rights has led growers to conclude that the program is not worth applying for vs. the more durable right that can be obtained through the more traditional water right process. This bill aims to make the registration process more user-friendly for growers in order to encourage these beneficial projects.”
ARGUMENTS IN OPPOSITION: None Received
COMMENTS
AB 964 (Huffman, 2011). The genesis of the small irrigation registration program was the significant drop in streamflow in the Russian River that occurred when sprinklers used to protect vineyards against frost kicked on. The jump in water demand for the sprinklers in addition to usual demands on the river lead to insufficient streamflow for salmon and other fish.
The small irrigation use registration process was created in order to create an expedited water right for a pond that stores less than 20 acre-feet annually so that a vineyard could draw from its pond for frost protection instead of directly from the stream. However, the bill was not limited to frost protection uses. The state board at that time identified that one quarter of its currently-pending water rights applications were for uses of 20 acre-feet per year or less. Therefore, creation of a small irrigation registration process was expected to streamline permitting for some of those small irrigation uses and help the state board eliminate some of its water right permitting backlog.
So Far, Results Are Disappointing. There is general agreement that the current process is less than ideal. Applications are not nearly as high as expected when AB 964 was enacted.
The Question Is Why. This bill focuses mostly on trying to speed up DFW’s streambed alteration permitting process. Another view might be that there are significant and unique site specific issues associated with small irrigation use that are not easily resolved, and so folks simply had unrealistic expectations in the first place.
Timing May Be Problematic. The bill would require that by January 1, 2018, the state board adopt general conditions for facilities that would store water for small irrigation use during times of high stream flow in exchange for that registrant reducing diversions during periods of low stream flow. This would give the state board a year, give or take a few months, to develop and adopt those general conditions. This is a very short timeline given that to adopt such conditions the state board would need to comply with CEQA.
SUGGESTED AMENDMENTS: None
SUPPORT
Wine Institute (Sponsor)
Association of California Water Agencies
California Association of Winegrape Growers
California Chamber of Commerce
Sonoma County Water Agency
Trout Unlimited
OPPOSITION:
None Received
-- END --
(Without Reference to File)
ASSEMBLY THIRD READING
ATR Bill Id:AB 1704
Author:(Dodd)
As Amended Ver:May 31, 2016
Majority vote
Committee | Votes | Ayes | Noes |
Water | 11-1 | Levine, Dababneh, Dodd, Gordon, Cristina Garcia, Gomez, Lopez, Medina, Olsen, Salas, Williams | Harper |
Appropriations | 15-0 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Daly, Eggman, Eduardo Garcia, Roger Hernández, Holden, Quirk, Santiago, Weber, Wood |
|
SUMMARY: Requires the State Water Resources Control Board (SWRCB) to adopt general conditions for small irrigation uses according to certain timelines, and specifies some of the conditions. Specifically, this bill:
- Modifies the information to be included in a registration of water use for appropriation of water to include a certification that the registrant has provided a copy of the registration form to the Department of Fish and Wildlife (DFW) and agrees to comply with the general conditions applicable. Requires that the registration form include instructions for complying with those conditions.
- Requires the SWRCB, in consultation with DFW, to establish general conditions for small irrigation use. Allows the SWRCB to include in the general conditions requirements that are applicable only to specific methods of diversion or categories of registration commensurate with the project's environmental impact. Requires that the general conditions adopted by the SWRCB include the following:
- That the appropriation is subject to prior rights,
- That diversion works shall be constructed and water applied to beneficial use with due diligence,
- That the registration shall be renewed and water use reported as required by law and SWRCB rules, and
- Any general conditions required by DFW to comply with laws regarding streambed alteration agreements.
- Requires DFW to adopt general conditions for small irrigation uses to address requirements for streambed alteration agreements, but only after DFW determines that funds are available for that purpose. Authorizes the conditions adopted by DFW for small irrigation uses to include all of the following:
- An assessment to avoid potential site-specific impacts on fish and wildlife.
- Submission of site-specific information.
- Consultation with DFW regarding the findings of site specific assessments and information.
- Implementation of additional measures DFW lawfully deems necessary to avoid site-specific impacts on fish and wildlife.
- States legislative intent that the SWRCB and DFW adopt general conditions to simplify the issuance of registrations in a cost-effective and environmentally protective manner, and that the regulatory burden of complying with the general conditions be commensurate with the complexity and type of resources potentially affected.
- Authorizes the SWRCB to continue to approve small irrigation use appropriations pursuant to any general conditions in effect on December 31, 2016, including any conditions lawfully required by DFW, before the adoption of general conditions by DFW under this bill.
- Repeals a provision of existing law providing that the SWRCB does not need to adopt general conditions for small irrigation use until the SWRCB determines that funds are available for that purpose.
- Requires the SWRCB, no later than June 30, 2017, to adopt general conditions that would permit a registrant to construct facilities to store water for small irrigation use during times of high stream flow in exchange for the registrant reducing existing diversions during periods of low stream flow, for all of the following:
- 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, as specified.
- Diversions from watersheds that support salmonid fisheries and from drainage areas of one square mile or less, subject to additional specified conditions.
- Diversions from other streams for which, in the judgment of the SWRCB, the reduction in existing diversions during low flow periods will result in a benefit to fish and wildlife.
- Requires that facilities to store water for small irrigation uses shall be subject to all of the following general conditions:
- No water shall be diverted or used and no construction shall commence until the applicant has obtained and is in compliance with all necessary permits and approvals required by other agencies;
- All appropriations, including the method of diversion, purpose of use, and quantity of water diverted, are subject to the continuing authority of the SWRCB to protect the public trust and prevent waste and unreasonable use.
- Diversion of water under appropriation is subject to prior rights, and applicants may be required to compensate downstream holders of prior rights for any injury caused by releases.
- The appropriations are subject to available flows.
- The appropriations do not authorize take of species protected under state or federal endangered species acts.
- The appropriations are subject to applicable SWRCB water measurement and reporting regulations.
- Requires the SWRCB to adopt general conditions for registration of small irrigation uses for purposes other than those described in paragraph 7) above, by no later than June 30, 2018.
- Requires that a registration fee of $500, and a renewal registration fee of $250, be paid to the DFW for small irrigation use registrations.
- Authorizes the SWRCB, beginning January 1, 2020, to periodically adopt regulations to update the general conditions specified in this bill.
EXISTING LAW:
- Requires the SWRCB to establish general conditions to which all registrations of appropriations for small domestic, small irrigation, and livestock stock pond uses shall be subject. Requires that the conditions include that the appropriation is subject to prior rights, that all conditions lawfully required by DFW are conditions of the appropriation, that diversions be constructed and water applied to beneficial use with due diligence, and that the registration be renewed and water use reported pursuant to law and rules of the SWRCB.
- Provides that the SWRCB is not required to adopt general conditions for small irrigation use until the SWRCB determines that funds are available for that purpose.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
- Significant annual administrative costs of approximately $4 million [General Fund (GF)] plus $11 million in contract funds (GF) for SWRCB to set general conditions statewide for small irrigation use.
- Ongoing costs of approximately $2 million (Water Rights Fund) for SWRCB to issue and renew registrations following the development of general conditions.
- DFW estimates it will require 31.0 Personnel Years and $4,727,000 (GF) to implement this bill. However, DFW is only required to adopt general conditions if funding is available.
- Although this bill authorizes fees for DFW, it is unlikely the fee revenues would be sufficient to cover costs. This bill does not provide additional fee authority for SWRCB beyond their existing authority.
COMMENTS: This bill requires the SWRCB, in consultation with DFW, to adopt general conditions for registrations to divert and store water for small irrigation uses, and specifies in statute what some of the conditions shall be. The SWRCB would be required, by June 30, 2017, to adopt general conditions for some small irrigation uses, and by June 30, 2018, for others. According to the author, this bill facilitates small irrigation use registrations statewide during periods of high stream flow that result in reduction of diversions during periods of low stream flow. The author maintains this bill will assist growers and benefit habitat for fish in our streams and rivers.
The small irrigation registration process was created by AB 964 (Huffman), Chapter 579, Statutes of 2011, in response to resource conflicts that were occurring when sprinklers used to protect vineyards against frost were creating simultaneous water demands that, when combined with other water uses, caused drops in river flows that could be harmful to salmon and other fish. The small irrigation use registration process was created to provide an expedited water right for a pond that stores less than 20 acre-feet annually so that a vineyard could draw from its pond for frost protection instead of directly from the stream. However, the bill was not limited to frost protection uses. The SWRCB at that time identified that one quarter of its pending water rights applications were for uses of 20 acre-feet per year or less. Creation of a small irrigation registration process was expected to streamline permitting for some of those small irrigation uses and help the SWRCB eliminate some of its water right permitting backlog.
In addition to DFW's ability under existing law to impose project-specific terms and conditions on water registrations, AB 964 required the SWRCB to develop general conditions that protect in-stream beneficial uses before the small irrigation registration process may be used. AB 964 allowed the SWRCB to develop general conditions for some areas or uses before others but mandated that the SWRCB develop general conditions for frost protection uses in northern California coastal streams by June 30, 2012, unless the SWRCB determined it had insufficient funds for that purpose. On July 25, 2012, the SWRCB approved an initial set of general conditions for Small Irrigation Use registrations.
The author of this bill indicates that although the SWRCB did adopt general conditions for small irrigation use registrations for purposes of frost protection in the north coast region, registrants still needed to comply with additional conditions and processes imposed by DFW. The information that was required by DFW to be included for a successful application was not always clear to the applicant, and registrations still were being reviewed and acted upon by the DFW on a case by case basis. As a result, many of the proposed registrations were not acted upon in a timely manner, due in part to limited staff resources at DFW, and to a lack of information as to what should be included in the application.
Supporters emphasize that rural water users have opportunities to change water use practice in ways that can benefit threatened and endangered fish species in critically dry years. However, in some cases, landowners who are willing to make such changes are unable to do so due to delays in the approval process for small irrigation uses. This bill would establish general conditions for such uses that should accelerate permit processing, especially during times of drought. According to supporters, many wine grape growers would like to reduce diversions during the warm weather irrigation season by obtaining rights to store water during peak flow winter months in small on-farm storage ponds, but obtaining permits for such small irrigation storage ponds has been difficult. Supporters also express support for the provisions in this bill that would require the DFW to propose general conditions, and to make such permits available statewide. There is currently no registered opposition to this bill as amended.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0003303
Date of Hearing: April 27, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
ABPCA Bill Id:AB 1704
Author:(Dodd) – As Amended Ver:March 30, 2016
Policy Committee: | Water, Parks and Wildlife | Vote: | 11 - 1 |
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill requires the State Water Resources Control Board (SWRCB) in consultation with the Department of Fish and Wildlife (DFW) to adopt general conditions for registrants to divert and store water for small irrigation uses, as specified. This bill requires registrants to pay initial fees of $500 and renewal fees of $250 to DFW.
FISCAL EFFECT:
- Significant annual administrative costs of approximately $4 million (GF) plus $11 million in contract funds (GF) for SWRCB to set general conditions statewide for small irrigation use.
- Ongoing costs of approximately $2 million (Water Rights Fund) for SWRCB to issue and renew registrations following the development of general conditions.
- DFW estimates it will require 31.0 PYs and $4,727,000 (GF) to implement this bill. However, DFW has also requested $7.7 million (GF) and 31.0 PYs, in the proposed 2016-17 budget to protect fish and wildlife resources from the harmful effects of marijuana cultivation and fulfill duties established in the medical marijuana regulatory framework. It is possible that some duties can be streamlined between the two similar activities, resulting in lower overall costs.
Although this bill authorizes fees for DFW, it is unlikely the fee revenues would be sufficient to cover costs. This bill does not provide additional fee authority for SWRCB beyond their existing authority.
COMMENTS:
- Purpose. According to the author, many vineyards and other farmers in the Central Coast and North Coast rely on water diverted from streams that support salmon and steelhead. Some of these agricultural water diversions occur during the irrigation season when streamflow is naturally low and juvenile salmon and steelhead are in the streams.
Some existing diverters would like to reduce diversions during the irrigation season and transition to winter water storage. However, obtaining rights for a new storage pond is a complex and expensive multi-year endeavor requiring compliance with California appropriative water rights law, Fish and Game Code streambed alteration agreements, Endangered Species Acts, CEQA, and County land use and zoning requirements.
This bill allows SWRCB and DFW to develop general conditions to allow small irrigation water users to divert and store water for later use.
- Background. AB 964, Chapter 579, Statutes of 2011, created the current small irrigation registration process in response to resource conflicts resulting from simultaneous water demands. Sprinklers used to protect vineyards, when combined with other water uses, were causing drops in river flows potentially harmful to salmon and other fish.
The registration process created an expedited water right for a pond that stores less than 20 acre-feet annually so that a vineyard could draw from its pond for frost protection instead of directly from the stream. At that time, SWRCB determined one quarter of its currently-pending water rights applications were for uses of 20 acre-feet per year or less. Creating the small irrigation registration process was expected to streamline permitting and help SWRCB eliminate some of the permitting backlog.
AB 964 allowed SWRCB to develop general conditions for some areas or uses before others, but mandated that the SWRCB develop general conditions for frost protection uses in the northern California coastal stream area by June 30, 2012, unless SWRCB determined there were insufficient funds. On July 25, 2012, the SWRCB approved an initial set of general conditions for Small Irrigation Use registrations.
- Fish and Wildlife Restrictions. In addition to DFW's authority to impose project-specific terms and conditions on water registrations, AB 964 required SWRCB to develop general conditions that protect in-stream beneficial uses before the small irrigation registration process may be used.
The conditions were developed by the SWRCB's Division of Water Rights staff in consultation with a stakeholder group that included representatives from DFW, Trout Unlimited, the Wine Institute, the California Association of Wine Grape Growers and others.
Registrants still need to comply with additional conditions and processes imposed by the DFW. As a result, according to proponents of the bill, many of the proposed registrations were not acted upon in a timely manner due in part to limited staff resources at DFW, and to a lack of information as to what should be included in the application.
In addition, the author objects to a provision in the existing law that prohibits new small irrigation use registrations from being issued for diversions from streams for which DFW recommends instream flow requirements. Instead, this bill would allow the registrations to be issued for such streams if the registration includes conditions that are consistent with the proposed streamflow requirements.
- Discussions Continue. The author and sponsors the California Association of Winegrape Growers and the Wine Institute, indicate this bill is a work in progress, and are committed to continuing to work with the SWRCB and the DFW to address the costs and other concerns.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
ABPCA Bill Id:AB 1704 (
Author:Dodd) – As Amended Ver:March 16, 2016
SUBJECT: Water rights
SUMMARY: Requires the State Water Resources Control Board (SWRCB) to adopt general conditions for small irrigation use according to certain timelines, and would specify some of the conditions. Specifically, this bill:
- Modifies the information to be included in a registration of water use for appropriation of water to include a certification that the registrant has provided a copy of the registration form to the Department of Fish and Wildlife (DFW) and agrees to comply with the general conditions applicable. Requires that the registration form include instructions for complying with those conditions.
- Requires the SWRCB to consult with the DFW in establishing general conditions for water appropriations for small irrigation uses.
- Requires the general conditions to include conditions required by the DFW to comply with laws regarding streambed alteration agreements.
- Allows the general conditions to include requirements applicable only to specific methods of diversion or categories of registration, commensurate with the project's environmental impact. Specifies that such requirements may include, but are not limited to, an assessment to avoid potential site-specific impacts on fish and wildlife resources, and submission of site-specific information.
- States that it is the intent of the Legislature that the SWRCB and DFW adopt general conditions that simplify the issuance of registrations in a cost-effective and environmentally protective manner, and that the regulatory burden of complying with the general conditions will be commensurate with the complexity and number of resources potentially affected by the registration.
- Repeals provisions of existing law providing that the SWRCB does not need to adopt general conditions for small irrigation use until the SWRCB determines that funds are available for that purpose, prohibiting registrations for small irrigation use from being authorized until the SWRCB adopts general conditions to protect instream beneficial uses, and allowing the SWRCB to adopt general conditions for some methods or uses before others.
- Requires the SWRCB no later than June 30, 2017, to adopt general conditions that would permit a registrant to construct facilities to store water for small irrigation use during times of high stream flow in exchange for the registrant reducing existing diversions during periods of low stream flow, for all of the following:
- 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. No diversion under this paragraph may result in cumulative stream flow depletion at the one-square mile drainage that exceeds 10 percent of the average annual volume of stream flow. 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:
- Diversions from drainage areas greater than one-half square mile 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;
- Diversions from drainage areas greater than one-quarter square mile but no more than one-half square mile, shall occur only when stream flow exceeds the February median flow at the point of diversion;
- Diversions from drainage areas one-quarter square mile or less may occur without season of diversion or minimum bypass requirements.
- Diversions from other streams for which, in the judgment of the SWRCB, the reduction in existing diversions during low flow periods will result in a benefit to fish and wildlife.
- 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. No diversion under this paragraph may result in cumulative stream flow depletion at the one-square mile drainage that exceeds 10 percent of the average annual volume of stream flow. 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:
- Requires that facilities to store water for small irrigation uses shall be subject to all of the following general conditions:
- No water shall be diverted or used under the registration and no construction shall commence until the applicant has obtained and is in compliance with all necessary permits and approvals required by other agencies;
- All appropriations, including the method of diversion, purpose of use, and quantity of water diverted, are subject to the continuing authority of the SWRCB to protect the public trust and prevent waste and unreasonable use.
- Diversion of water under appropriation is subject to prior rights, and applicants may be required to compensate downstream holders of prior rights for any injury caused by releases.
- The appropriations are subject to available flows.
- The appropriations do not authorize take of species protected under state or federal endangered species acts.
- The appropriations are subject to applicable SWRCB water measurement and reporting regulations.
- Requires the SWRCB to adopt general conditions for registration of small irrigation use for purposes other than those described in 7) above by no later than June 30, 2018.
- Requires that a registration fee of $500, and a renewal registration fee of $250, be paid to the DFW for small irrigation use registrations.
- Authorizes the SWRCB to issue and renew registrations for stream segments for which the DFW establishes proposed streamflow requirements under Section 10002 of the Public Resources Code (which requires DFW to identify and list those streams and watercourses throughout the state for which minimum flow levels need to be established in order to assure the continued viability of stream-related fish and wildlife resources) if the registration includes conditions consistent with the proposed streamflow requirements, and strikes a provision of existing law that prohibits new registrations for small irrigation uses from being approved for streams for which DFW establishes proposed instream flow requirements.
EXISTING LAW:
- Requires the SWRCB to establish reasonable general conditions to which all registrations of appropriations for Small Domestic, Small Irrigation, and Livestock Stock pond Uses shall be subject. Requires that the conditions include that the appropriation is subject to prior rights, that all conditions lawfully required by the DFW are conditions of the appropriation, that diversions be constructed and water applied to beneficial use with due diligence, and that the registration be renewed and water use reported pursuant to law and rules of the SWRCB.
- Provides that the SWRCB is not required to adopt general conditions for small irrigation use until the SWRCB determines that funds are available for that purpose.
- Prohibits a registration for small irrigation use from being authorized until the SWRCB establishes general conditions for small irrigation use. Authorizes the SWRCB to establish general conditions for some methods of diversion or categories of small irrigation use before others.
FISCAL EFFECT: Unknown
COMMENTS: This bill requires the SWRCB, by a specified date and in consultation with the DFW, to adopt general conditions for registrations to divert and store water for small irrigation uses, and specifies in statute what some of the conditions shall be.
- Author's Statement: This bill modifies current law pertaining to conditions for registrations of small irrigation ponds by enabling the SWRCB to jointly develop general conditions with the DFW, and requiring the registrant to demonstrate compliance with these general conditions. This bill also facilitates small irrigation use registrations statewide during periods of high stream flow that result in the reduction of existing diversions during periods of low stream flow. This bill is a measure that will assist growers and benefit habitat for fish species in our streams and rivers.
- Background: The small irrigation registration process was created by AB 964 (Huffman), Chapter 579, Statutes of 2011, in response to resource conflicts that were occurring when sprinklers used to protect vineyards against frost were creating simultaneous water demands that, when combined with other water uses, were causing drops in river flows that could be harmful to salmon and other fish. The small irrigation use registration process was created in order to create an expedited water right for a pond that stores less than 20 acre-feet annually so that a vineyard could draw from its pond for frost protection instead of directly from the stream. However, the bill was not limited to frost protection uses. The SWRCB at that time identified that one quarter of its currently-pending water rights applications were for uses of 20 acre-feet per year or less. Therefore, creation of a small irrigation registration process was expected to streamline permitting for some of those small irrigation uses and help the SWRCB eliminate some of its water right permitting backlog.
In addition to DFW's ability under existing law to impose project-specific terms and conditions on water registrations, AB 964 required the SWRCB to develop general conditions that protect in-stream beneficial uses before the small irrigation registration process may be used. AB 964 allowed the SWRCB to develop general conditions for some areas or uses before others but mandated that the SWRCB develop general conditions for frost protection uses in the northern California coastal stream area by June 30, 2012, unless the SWRCB determined it had insufficient funds for that purpose. On July 25, 2012, the SWRCB approved an initial set of general conditions for Small Irrigation Use registrations.
The conditions were developed by the SWRCB's Division of Water Rights staff in consultation with a stakeholder group that included representatives from DFW, Trout Unlimited, the Wine Institute, the California Association of Wine Grape Growers and others.
The author and sponsors of this bill indicate that although the SWRCB did adopt general conditions for small irrigation use registrations for purposes of frost protection in the north coast region, registrants still needed to comply with additional conditions and processes imposed by the DFW. The information that was required by DFW to be included for a successful application was not always clear to the applicant, and registrations still were being reviewed and acted upon by the DFW on a case by case basis. As a result, according to the sponsors, many of the proposed registrations were not acted upon in a timely manner due in part to limited staff resources at DFW, and to a lack of information as to what should be included in the application. In addition, the author and sponsors of this bill object to a provision in the existing law that prohibits new small irrigation use registrations from being issued for diversions from streams for which DFW recommends instream flow requirements. Instead, this bill would allow the registrations to be issued for such streams if the registration includes conditions that are consistent with the proposed streamflow requirements.
The author and sponsors indicate that this bill is a work in progress, and that the author is committed to continuing to work with the SWRCB and the DFW to address concerns with this bill. Among other things, the SWRCB is concerned that the timeframe of June 30, 2017 is an insufficient length of time to complete the process of establishing general conditions. Concerns have also been raised regarding the deletion of existing provisions of the law that protect public trust resources by requiring that general conditions be established before registrations for small irrigation use are approved, and that allow the SWRCB to establish general conditions for some methods of diversion or categories of use before others. In addition, concerns have also been raised regarding the need to preserve the authority of DFW to impose additional site-specific conditions where necessary to protect fish and wildlife. Committee amendments are proposed (described below) to address these issues.
- Prior or Related Legislation: AB 964 (Huffman), Chapter 579, Statutes of 2011, authorized any person to obtain a right to appropriate water for a small irrigation use, as defined by the bill, upon registering the use with the SWRCB and applying the water to reasonable and beneficial use with due diligence. AB 964 provided that the SWRCB is not required to adopt general conditions applicable to appropriations for small irrigation use until the board determines that funds are available for that purpose. AB 964 also required the SWRCB, prior to adopting other general conditions for small irrigation use, and no later than June 30, 2012, to adopt general conditions for small irrigation use for facilities used for frost protection with respect to specified north coast streams.
AB 1244 (Gray) of this Session would require the SWRCB, when adopting general conditions, to consult with the Department of Food and Agriculture and the University of California Cooperative Extension, regarding relevant agricultural information, and with DFW regarding potential impacts on fish and wildlife species, for small irrigation use. AB 1244 is pending in the Senate Natural Resources & Water Committee.
SB 798 (Committee on Natural Resources & Water), Chapter 683, Statutes of 2015, deleted an obsolete provision of the law added by AB 964, which required the SWRCB, prior to adopting general conditions for other small irrigation uses and no later than June 30, 2012, to adopt general conditions for small irrigation use for facilities used for frost protection with respect to specified north coast streams. The SWRCB adopted those conditions. - Support Arguments: Supporters emphasize that rural water users have opportunities to change water use practice in ways that can benefit threatened and endangered fish species in critically dry years. However, in some cases, landowners who are willing to make such changes are unable to do so due to delays in the approval process for small irrigation uses. This bill would establish general conditions for such uses that should accelerate permit processing, especially during times of drought. According to supporters, many wine grape growers would like to reduce diversions during the warm weather irrigation season by obtaining rights to store water during peak flow winter months in small on-farm storage ponds, but obtaining permits for such small irrigation storage ponds has been difficult. Supporters also express support for the provisions in this bill that would require the DFW to propose general conditions, and to make such permits available statewide.
- Opposition Arguments: The Sierra Club opposes this bill unless amended to clarify DFW's authority to address site-specific conditions, and other clarifications. Concerns have been raised regarding the deletion in this bill of provisions in the existing law which do three things: 1) provide that a registration for small irrigation use is not authorized until the SWRCB establishes general conditions for that use; 2) authorize the SWRCB to establish general conditions for some methods and uses before others; and 3) provide that the SWRCB is not required to adopt general conditions if it does not have funds available to do so. The SWRCB has also indicated that the deadline of June 30, 2017 for completion of general conditions is impractical and that additional time will be needed. The author and sponsors have expressed an openness to consider a reasonable extension of time, in addition to other amendments.
- Suggested Committee Amendments: This bill seeks to facilitate, expedite and expand approval of registrations for water diversions for small irrigation storage ponds by establishing a date certain by which the SWRCB must adopt general conditions for certain diversions, and by requiring the SWRCB and the DFW to work together in establishing the conditions. This bill also codifies a considerable level of detail as to what must be included in the conditions. Because conditions and trends can change over time, particularly with climate change impacts and cyclical droughts, an argument can be made that this level of detail would be better left to the SWRCB and DFW to determine based on conditions, rather than being codified in statute. In order to facilitate future modifications where necessary, committee staff recommends that an amendment be taken to allow the SWRCB to modify these details in the future through regulation.
Secondly, this bill deletes the existing requirement in law that a registrant must comply with other lawful conditions required by the DFW. The deletion of this language could be interpreted as precluding the DFW from requiring additional site-specific conditions where necessary to protect fish and wildlife. The sponsors have indicated it is not their intent to diminish the authority of DFW but rather to clarify what should be included in the registration regarding site specific details in order to expedite the process. Committee staff therefore recommends that amendments be added to clarify DFW's continuing authority to impose site specific conditions in addition to general conditions where necessary to protect fish and wildlife.
Third, this bill deletes existing language clarifying that registrations for small irrigation use are not authorized until the SWRCB establishes general conditions, and clarifying that the SWRCB may establish general conditions for some methods of diversion or categories of small irrigation use before others. Committee staff recommends that amendments be adopted to reinstate these provisions.
The suggested committee amendments to address these issues are as follows:
Amend Section 1228.6(a)(1)(B) to read:
(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.
(iii) Consultation with the Department of Fish and Wildlife regarding the findings of the site-specific assessments and information.
(iv) Implementation of additional measures the Department of Fish and Wildlife lawfully deems necessary to avoid site-specific impacts on fish and wildlife resources identified in paragraphs (i), (ii) or (iii).
Add a new subdivision (d) to Section 1229 to read:
(d) The board may periodically adopt regulations to update the general conditions specified in this section, beginning on January 1, 2020.
Add a new subdivision (e) to Section 1229 as follows:
(e) (i) A registration for small irrigation use pursuant to this article is not authorized until the board establishes general conditions for small irrigation use pursuant to subdivision (a) of Section 1228.6 or this section.
(ii) The board may establish general conditions for some methods of diversion or categories of small irrigation use before establishing general conditions for other methods or categories, in which case a registration for small irrigation use is authorized only for those methods or categories for which the board has established general conditions for the protection of instream beneficial uses.
REGISTERED SUPPORT / OPPOSITION:
Support
Association of California Water Agencies
California Association of Winegrape Growers (Co-sponsor)
Sonoma County Water Agency
Wine Institute (Co-sponsor)
Opposition
Sierra Club California (unless amended)
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096
Discussed in Hearing
3MIN
Assembly Floor
11MIN
Assembly Standing Committee on Water, Parks, and Wildlife
Bill Author
Bill Co-Author(s):