Under existing law, the State Water Resources Control Board administers a water rights program pursuant to which the board grants permits and licenses to appropriate water. Existing law requires an application for a permit to appropriate water to include, among other things, sufficient information to demonstrate a reasonable likelihood that unappropriated water is available for the proposed appropriation. Existing law requires the board to issue and deliver a notice of an application as soon as practicable after the receipt of an application for a permit to appropriate water that conforms to the law. Existing law allows interested persons to file a written protest with regard to an application to appropriate water and requires the protestant to set forth the objections to the application. Existing law declares that no hearing is necessary to issue a permit in connection with an unprotested application, or if the undisputed facts support the issuance of the permit and there is no disputed issue of material fact, unless the board elects to hold a hearing.

This bill, if the board has not rendered a final determination on an application for a permit to appropriate water within 20 years from the date the application was filed, would require the board to issue another notice of application and mail the notice of application, as prescribed. This bill would require the applicant to publish and post the notice of application, as prescribed. This bill would authorize any person interested to file with the board a written protest against the approval of the application and require the board to proceed on the application, as specified. a notice and provide an opportunity for protests before rendering a final determination, with specified exceptions. This bill would provide that it is not a limitation on the authority of the board to issue a notice or direct the applicant to issue a notice if, because of changes in the project or other circumstances, the issuance of a notice is necessary to provide a fair opportunity for interested persons to file protests or is in the public interest.

Under existing law, the State Water Resources Control Board administers a water rights program pursuant to which the board grants permits and licenses to appropriate water. Existing law requires an application for a permit to appropriate water to include, among other things, sufficient information to demonstrate a reasonable likelihood that unappropriated water is available for the proposed appropriation. Existing law requires the board to issue and deliver a notice of an application as soon as practicable after the receipt of an application for a permit to appropriate water that conforms to the law. Existing law allows interested persons to file a written protest with regard to an application to appropriate water and requires the protestant to set forth the objections to the application. Existing law declares that no hearing is necessary to issue a permit in connection with an unprotested application, or if the undisputed facts support the issuance of the permit and there is no disputed issue of material fact, unless the board elects to hold a hearing.

This bill, if the board has not rendered a final determination on an application for a permit to appropriate water within 20 years from the date the application was filed, would require the board to issue another notice of application and mail the notice of application, as prescribed. This bill would require the applicant to publish and post the notice of application, as prescribed. This bill would authorize any person interested to file with the board a written protest against the approval of the application and require the board to proceed on the application, as specified.

Date of Hearing: April 27, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1986

Author:(Wilk) – As Amended Ver:April 14, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the State Water Resources Control Board (SWRCB) to reissue notices of applications for permits to appropriate water and provide opportunity for protests under specified conditions. Specifically, this bill:

1. Requires the SWRCB, if it has not rendered a final determination on an application for a permit to appropriate water within 20 years from the date the application was filed, to issue another notice of application, as prescribed, and mail the notice to the applicant and interested parties.
2. Excludes applications that have already been canceled or denied, for which a new notice and opportunity to protest has been provided in the past five years, and for which the SWRCB has already agreed to hold a hearing and allow interested parties to participate.
3. Requires the applicant to publish and post the notice as prescribed by applicable law.
4. Authorizes any interested person to file a written protest with the SWRCB against the application within the time frame allowed in the notice or by the SWRCB for good cause.
5. Requires the SWRCB to conduct proceedings on the application in accordance with existing law governing hearings on protested applications.

FISCAL EFFECT:

Increased ongoing annual costs of $280,000 (2PY) for SWRCB to re-notice applications, process new protests and possibly hold a water rights hearing or field investigation (Water Rights Fund).

COMMENTS:

Rationale. According to the Author, in 1990, the Bureau of Land Management (BLM) issued two 10-year contracts to mine 56 million tons of aggregate from a site near Soledad Canyon and the 14 Freeway. The current owner of the proposed mine site is CEMEX. In August of last year, BLM announced that the contracts, held for more than 25 years but never acted on, had been cancelled. CEMEX has appealed that decision.

CEMEX's predecessor in interest filed an application with the SWRCB in 1991 to appropriate 322 acre-feet of water per year from the Santa Clara River for use on the mine site. The SWRCB never acted on the application which is still pending and could be reactivated. If the application were reactivated, the time period for filing of protests has long passed.

This bill would require publication of a new notice of application, and would reopen the protest period and related administrative processes. According to the author, this notice will allow members of the community to make a case with state regulators as to why the mine and associated application to appropriate water for the project should be denied.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 12, 2016

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Marc Levine, Chair

ABPCA Bill Id:AB 1986 (

Author:Wilk) – As Introduced Ver:February 16, 2016

SUBJECT: Water resources: permit to appropriate: application procedure

SUMMARY: Requires the State Water Resources Control Board (SWRCB) to reissue notices of applications for permits to appropriate water if the SWRCB has not rendered a final decision on the application within 20 years, and reopens the time period for interested persons to file a written protest to the application. Specifically, this bill:

1. Requires the SWRCB, if it has not rendered a final determination on an application for a permit to appropriate water within 20 years from the date the application was filed, to issue another notice of application, as prescribed, and mail the notice to the applicant and interested parties.
2. Requires the applicant to publish and post the notice as prescribed by applicable law.
3. Authorizes any interested person to file a written protest with the SWRCB against the application within the time frame allowed in the notice or by the SWRCB for good cause.
4. Requires the SWRCB to conduct proceedings on the application in accordance with existing law governing hearings on protested applications.

EXISTING LAW:

1. Establishes a process for publication, posting and mailing of public notices of applications to appropriate water. Requires that notices be published and posted, as specified, and mailed to interested persons. Authorizes the SWRCB to cancel an application for failure to comply with notice publication and posting requirements.
2. Authorizes any interested person to file a written protest to an application to appropriate water within the time allowed in the notice of application, or within such further time as the SWRCB for good cause shown may allow.
3. Requires a protestant and the applicant to make a good faith effort to resolve the protest within 180 days from the date on which protests are required to be filed, or within such additional time as the SWRCB for good cause may allow. Authorizes the SWRCB to request additional information and to cancel a protest if the information is not provided.
4. Sets forth procedures for hearings on protested applications for appropriation. Authorizes the SWRCB to grant or refuse to grant a permit and reject an application after a hearing. No hearing is necessary on an unprotested application, or if undisputed facts support the permit and there is no disputed issue of material fact, unless the board elects to hold a hearing.

FISCAL EFFECT: Unknown

COMMENTS: This bill would allow interested parties to file a protest to an application to appropriate water that is more than 20 years old and on which the SWRCB has not rendered a final decision.

1. Author's Statement: The author has introduced this bill to allow community members and other interested parties the opportunity to make a case to state regulators as to why the CEMEX Mine should not be approved. According to the author, the CEMEX Mine is a mega mine project that would wreak havoc on the environment and quality of life of people in the Santa Clarita Valley. This bill would allow protests to be filed with the SWRCB to whom the current mine owner's predecessor-in-interest (Transit Mix Cement Company) filed an application in 1991 for a water appropriation permit for the project. The application requested appropriation of 322 acre-feet of water per year from the Santa Clara River for use on the proposed mining site and industrial operations. That application was never acted on by the SWRCB and no hearing was held. While the SWRCB has essentially suspended activity on the application, the status of the application is still considered active. By reissuing another notice of application and reopening the protest period, this bill will provide an opportunity for interested persons to highlight concerns regarding the project in order to protect water supply, air quality and other environmental and quality of life issues in the region. The author notes that the Santa Clara River is the last natural river in Southern California, and that with the recent drought and the passage of over 25 years since the application was initially filed, the dynamics of water availability in the region have changed significantly and should be taken into consideration.
2. Background: Background information provided by the author indicates that in 1990 the Bureau of Land Management (BLM) issued two 10-year contracts to mine 56 million tons of aggregate from a site near Soledad Canyon and the 14 Freeway. The current owner of the proposed mine site is CEMEX. In August of last year, the BLM announced that the contracts, held for more than 25 years but never acted on, had been cancelled. However, CEMEX has appealed that decision. As stated above, CEMEX's predecessor in interest filed an application with the SWRCB in 1991 to appropriate 322 acre-feet of water per year from the Santa Clara River for use on the mine site. The SWRCB never acted on the application which is still pending and could be reactivated. If the application were reactivated, the time period for filing of protests has long passed.

This bill would require publication of a new notice of application, and would reopen the protest period and related administrative processes. The author indicates that this will allow members of the community to make a case with state regulators as to why the mine and associated application to appropriate water for the project should be denied.

While the author's intent with this bill is focused on re-noticing and reopening the protest period for a particular application for appropriation of water, this bill as introduced would apply to all applications for a permit to appropriate water that are more than 20 years old and have not been acted on by the SWRCB. The SWRCB indicates that it has a significant and continuing backlog of hundreds of water rights applications. Of those, 80 applications have been pending for over 20 years. The backlog, according to the SWRCB, is due both to the extensive amount of process that is required by the Water Code for water rights permits, unresolved protests, and a shortage of staffing in the SWRCB's Division of Water Rights, as well as prioritization of efforts to respond to the recent emergency state of drought. The SWRCB submitted a Budget Change Proposal for Fiscal Year 2016-17 requesting 7 new positions and $851,000 from the Water Rights Fund to process applications to appropriate water permits and registrations, petitions to change existing water rights, wastewater change petitions, and licensing of water rights. The SWRCB indicates this augmentation would help address the significant backlog, and allow water users to maximize beneficial use of water to enhance drought resilience while also protecting the public trust.

1. Prior and related legislation: The Water Code Sections governing the procedures for applications for permits to appropriate water and protests thereof have not been substantively amended since 1997 (see SB 849, Chapter 323, Statutes of 1997).

AB 763 (Berryhill) of 2011 proposed to allow any person who files an application to appropriate water, or who files a protest to an application, to seek a pre-decisional review by a member of the SWRCB or an Administrative Law Judge before the SWRCB takes a final action. AB 763 died in this committee.

1. Support Arguments: Supporters note that while this bill is directed at one facility in particular, it is sensible to allow the public to review an application after 20 years, as new information, especially on how climate change is affecting hydrology, can change perception about a project and its impacts.
2. Opposition Arguments: The Association of California Water Agencies expresses concern about the broad application of this bill to water rights applications statewide, and the potential for this bill to hinder administration of water rights applications and slow the application approval process.
3. Suggested Amendments: In order to accomplish the author's intent, while at the same time avoid unintended consequences or unnecessary fiscal costs that might be associated with reopening the protest period for all applications over 20 years old, the attached amendments are suggested to narrow the applications to which this bill would apply. Specifically, the amendments would exclude applications that have already been canceled or denied, for which a new notice and opportunity to protest has been provided in the past five years, and for which the SWRCB has already agreed to hold a hearing and allow interested parties to participate. The amendments would also move the location of the language in the code to the existing article on notices.

REGISTERED SUPPORT / OPPOSITION:

Support

Sierra Club California

Opposition

Association of California Water Agencies

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Marc Levine, Chair

ABPCA Bill Id:AB 1986 (

Author:Wilk) – As Introduced Ver:February 16, 2016

SUBJECT: Water resources: permit to appropriate: application procedure

SUMMARY: Requires the State Water Resources Control Board (SWRCB) to reissue notices of applications for permits to appropriate water if the SWRCB has not rendered a final decision on the application within 20 years, and reopens the time period for interested persons to file a written protest to the application. Specifically, this bill:

1. Requires the SWRCB, if it has not rendered a final determination on an application for a permit to appropriate water within 20 years from the date the application was filed, to issue another notice of application, as prescribed, and mail the notice to the applicant and interested parties.
2. Requires the applicant to publish and post the notice as prescribed by applicable law.
3. Authorizes any interested person to file a written protest with the SWRCB against the application within the time frame allowed in the notice or by the SWRCB for good cause.
4. Requires the SWRCB to conduct proceedings on the application in accordance with existing law governing hearings on protested applications.

EXISTING LAW:

1. Establishes a process for publication, posting and mailing of public notices of applications to appropriate water. Requires that notices be published and posted, as specified, and mailed to interested persons. Authorizes the SWRCB to cancel an application for failure to comply with notice publication and posting requirements.
2. Authorizes any interested person to file a written protest to an application to appropriate water within the time allowed in the notice of application, or within such further time as the SWRCB for good cause shown may allow.
3. Requires a protestant and the applicant to make a good faith effort to resolve the protest within 180 days from the date on which protests are required to be filed, or within such additional time as the SWRCB for good cause may allow. Authorizes the SWRCB to request additional information and to cancel a protest if the information is not provided.
4. Sets forth procedures for hearings on protested applications for appropriation. Authorizes the SWRCB to grant or refuse to grant a permit and reject an application after a hearing. No hearing is necessary on an unprotested application, or if undisputed facts support the permit and there is no disputed issue of material fact, unless the board elects to hold a hearing.

FISCAL EFFECT: Unknown

COMMENTS: This bill would allow interested parties to file a protest to an application to appropriate water that is more than 20 years old and on which the SWRCB has not rendered a final decision.

1. Author's Statement: The author has introduced this bill to allow community members and other interested parties the opportunity to make a case to state regulators as to why the CEMEX Mine should not be approved. According to the author, the CEMEX Mine is a mega mine project that would wreak havoc on the environment and quality of life of people in the Santa Clarita Valley. This bill would allow protests to be filed with the SWRCB to whom the current mine owner's predecessor-in-interest (Transit Mix Cement Company) filed an application in 1991 for a water appropriation permit for the project. The application requested appropriation of 322 acre-feet of water per year from the Santa Clara River for use on the proposed mining site and industrial operations. That application was never acted on by the SWRCB and no hearing was held. While the SWRCB has essentially suspended activity on the application, the status of the application is still considered active. By reissuing another notice of application and reopening the protest period, this bill will provide an opportunity for interested persons to highlight concerns regarding the project in order to protect water supply, air quality and other environmental and quality of life issues in the region. The author notes that the Santa Clara River is the last natural river in Southern California, and that with the recent drought and the passage of over 25 years since the application was initially filed, the dynamics of water availability in the region have changed significantly and should be taken into consideration.
2. Background: Background information provided by the author indicates that in 1990 the Bureau of Land Management (BLM) issued two 10-year contracts to mine 56 million tons of aggregate from a site near Soledad Canyon and the 14 Freeway. The current owner of the proposed mine site is CEMEX. In August of last year, the BLM announced that the contracts, held for more than 25 years but never acted on, had been cancelled. However, CEMEX has appealed that decision. As stated above, CEMEX's predecessor in interest filed an application with the SWRCB in 1991 to appropriate 322 acre-feet of water per year from the Santa Clara River for use on the mine site. The SWRCB never acted on the application which is still pending and could be reactivated. If the application were reactivated, the time period for filing of protests has long passed.

This bill would require publication of a new notice of application, and would reopen the protest period and related administrative processes. The author indicates that this will allow members of the community to make a case with state regulators as to why the mine and associated application to appropriate water for the project should be denied.

While the author's intent with this bill is focused on re-noticing and reopening the protest period for a particular application for appropriation of water, this bill as introduced would apply to all applications for a permit to appropriate water that are more than 20 years old and have not been acted on by the SWRCB. The SWRCB indicates that it has a significant and continuing backlog of hundreds of water rights applications. Of those, 80 applications have been pending for over 20 years. The backlog, according to the SWRCB, is due both to the extensive amount of process that is required by the Water Code for water rights permits, unresolved protests, and a shortage of staffing in the SWRCB's Division of Water Rights, as well as prioritization of efforts to respond to the recent emergency state of drought. The SWRCB submitted a Budget Change Proposal for Fiscal Year 2016-17 requesting 7 new positions and $851,000 from the Water Rights Fund to process applications to appropriate water permits and registrations, petitions to change existing water rights, wastewater change petitions, and licensing of water rights. The SWRCB indicates this augmentation would help address the significant backlog, and allow water users to maximize beneficial use of water to enhance drought resilience while also protecting the public trust.

1. Prior and related legislation: The Water Code Sections governing the procedures for applications for permits to appropriate water and protests thereof have not been substantively amended since 1997 (see SB 849, Chapter 323, Statutes of 1997).

AB 763 (Berryhill) of 2011 proposed to allow any person who files an application to appropriate water, or who files a protest to an application, to seek a pre-decisional review by a member of the SWRCB or an Administrative Law Judge before the SWRCB takes a final action. AB 763 died in this committee.

1. Support Arguments: Supporters note that while this bill is directed at one facility in particular, it is sensible to allow the public to review an application after 20 years, as new information, especially on how climate change is affecting hydrology, can change perception about a project and its impacts.
2. Opposition Arguments: The Association of California Water Agencies expresses concern about the broad application of this bill to water rights applications statewide, and the potential for this bill to hinder administration of water rights applications and slow the application approval process.
3. Suggested Amendments: In order to accomplish the author's intent, while at the same time avoid undesirable consequences or unnecessary fiscal costs that might be associated with reopening the protest period for all applications over 20 years old, the attached amendments are suggested to narrow the applications to which this bill would apply. Specifically, the amendments would exclude applications that have already been canceled or denied, for which a new notice and opportunity to protest has been provided in the past five years, and for which the SWRCB has already agreed to hold a hearing and allow interested parties to participate. The amendments would also move the location of the language in the code to the existing article on notices.

REGISTERED SUPPORT / OPPOSITION:

Support

Sierra Club California

Opposition

Association of California Water Agencies

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096