BILL NUMBER: SB 681 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 1, 2009
AMENDED IN SENATE APRIL 20, 2009
INTRODUCED BY Senator Pavley
FEBRUARY 27, 2009
An act to amend Section 6103.1 of the Government Code, and to
amend Sections 1052, 1055, 1055.2, 1126, 1525, 1535, 1538, 1551,
1825, 1831, 1845, 2525, 2526, 2550, 2763.5, 5100, 5101, 5103, 5106,
and 5107 of, to add Sections 1051.1, 1061, 1240.5, 1846, and
1847 to, to add Article 3.5 (commencing with Section 285) to Chapter
2.5 of Division 1 of, to to add Sections 1051.1,
1240.5, 1846, and 1847 to, to add Chapter 3.5 (commencing with
Section 1110) to Part 1 of Division 2 of, and to repeal Section 5108
of, the Water Code, relating to water.
LEGISLATIVE COUNSEL'S DIGEST
SB 681, as amended, Pavley. Water diversion and use.
(1) Existing law generally provides that the state, or a county,
city, district, or other political subdivision, or any public officer
or body acting in its official capacity on behalf of any of those
entities, may not be required to pay any fee for the performance of
an official service. Existing law exempts from this provision any fee
or charge for official services required pursuant to specified
provisions of law relating to water use or water quality.
This bill would expand the exemption to other provisions relating
to water use, including provisions that require the payment of fees
to the State Water Resources Control Board (board) for official
services relating to statements of water diversion and use.
(2) The California Constitution requires the reasonable and
beneficial use of water. Under the public trust doctrine, the board,
among other state agencies, is required to take the public trust into
account in the planning and allocation of water resources and to
protect the public trust whenever feasible. The board and the
California regional water quality control boards (regional boards)
are required to set forth water quality objectives in state and
regional water quality control plans. Existing law establishes the
Water Rights Fund, which consists of various fees and penalties. The
moneys in the Water Rights Fund are available upon appropriation by
the Legislature for the administration of the board's water rights
program.
This bill would authorize the board to issue, on its own motion or
upon the petition of an interested party, an interim relief order in
appropriate circumstances to implement or enforce these and related
provisions of law. A person or entity that violates any interim
relief order issued by the board would be liable to the board for a
civil penalty in an amount not to exceed $5,000 for each day in which
a violation occurs. These funds would be deposited in the Water
Rights Fund.
(3) Existing law authorizes the board to investigate all streams,
stream systems, lakes, or other bodies of water, take testimony
relating to the rights to water or the use of water, and ascertain
whether water filed upon or attempted to be appropriated is
appropriated under the laws of the state.
This bill would authorize the board, in conducting an
investigation or proceeding for these purposes, to order any person
or entity that diverts water or uses water to submit, under penalty
of perjury, any technical or monitoring report related to the
diversion or use of water by that person or entity. By expanding the
definition of the crime of perjury, the bill would impose a
state-mandated local program. The bill would authorize the board, in
connection with the investigation or proceeding, to inspect the
facilities of any person or entity to determine compliance with
specified water use requirements.
(4) Existing law authorizes the board, upon the submission of a
petition signed by a claimant to water of any stream system
requesting a determination of rights among the claimants to that
water, to enter an order granting the petition. After granting the
petition, the board is required to investigate the stream system to
gather information necessary to make a determination of the water
rights of that stream system.
This bill would authorize the board , on its own motion,
to proceed with a determination of the water rights of a stream
system to initiate a determination of rights under its
own motion if after a hearing it finds that the public
interest and necessity will be served by a determination of rights
.
(5) Existing law declares that the diversion or use of water other
than as authorized by specified provisions of law is a trespass.
Existing law authorizes the administrative imposition of civil
liability by the board for a trespass in an amount not to exceed $500
for each day in which the trespass occurs. Moneys generated by the
imposition of civil liability under these provisions are deposited in
the Water Rights Fund.
This bill would provide that a person or entity committing a
trespass may be liable in an amount not to exceed the sum of $1,000
for each day in which the trespass occurs and $1,000 for each
acre-foot of water diverted or used other than as authorized by those
specified provisions of law.
(6) Existing law requires various state agencies, including the
board and the regional boards, to carry out programs, projects, and
activities on behalf of the Sacramento-San Joaquin Delta.
This bill would require the board to establish, on or before
January 1, 2012, a 2-year pilot program to install real-time
telemetered monitoring devices on diversions in, and tributary to,
the Delta, and to submit to the Legislature a related report
following the completion of the pilot program.
(7)
(6) Existing law, with certain exceptions, requires
each person who, after December 31, 1965, diverts water to file with
the board a statement of diversion and use. Existing law provides
that a person who makes a material misstatement pursuant to these
provisions may be subject to administratively imposed civil liability
in an amount not to exceed $500 for each violation. Funds derived
from the imposition of these penalties are deposited in the Water
Rights Fund. Existing law declares that statements of diversion and
use are for informational purposes only and that the failure to file
the statements, or the making of an error in the information
submitted, with certain specified exceptions, does not have any legal
consequences.
This bill would revise those provisions that exempt certain
diversions or uses of water from that reporting requirement. The bill
would also revise the information that is required to be set forth
in the statement of diversion and use. The bill would provide that
any person who fails to file the statement for a diversion and use
that occurs on or after January 1, 2009, or who makes a material
misstatement in connection with the submission of the statement, may
be subject to administratively imposed civil liability in an amount
not to exceed $25,000 for each violation. The bill would delete the
provision that a statement of diversion and use is for informational
purposes only and, except as specified, without legal consequence.
The bill would require a person who files a statement of diversion
and use to pay an annual fee, for deposit in the Water Rights Fund.
The bill would include as recoverable costs, for which the board may
be reimbursed from the fund upon appropriation therefor, costs
incurred in connection with carrying out requirements relating to the
statements of diversion and use and the performance of duties under
the public trust doctrine and provisions that require the reasonable
use of water.
The bill would require the department and the board to establish
and maintain a centralized, publicly accessible database of water
diversion and use. The department and the board would be authorized
to adopt emergency regulations to carry out these requirements.
(8)
(7) Existing law authorizes the board to issue a cease
and desist order against a person who is violating, or threatening to
violate, certain requirements, including requirements set forth in a
decision or order relating to the unauthorized use of water. Any
person who violates a cease and desist order may be liable in an
amount not to exceed $1,000 for each day in which the violation
occurs. Revenue generated from these penalties is deposited in the
Water Rights Fund.
This bill would authorize the board to issue a cease and desist
order in response to a violation of certain requirements relating to
the unauthorized diversion or use of water or of a reporting or
monitoring requirement established under a decision, order, or
regulation adopted by the board pursuant to various provisions of
law, including the public trust doctrine. The bill would increase the
civil penalties that apply to a person who violates a cease and
desist order by subjecting a violator to a civil penalty in an amount
not to exceed the sum of $2,500 for each day in which the violation
occurs and $2,500 for each acre-foot of water diverted or used in
violation of the cease and desist order.
The bill would impose civil liability, in an amount not to exceed
$500 for each day in which a violation occurs, for a failure to
comply with various reporting or monitoring requirements, including
requirements imposed pursuant to the public trust doctrine. The bill
would authorize the board to impose additional civil liability, in an
amount not to exceed $500 for each day in which a violation occurs,
for the violation of a permit, license, or water quality
certification, or an order or regulation involving the unreasonable
use of water. Funds derived from the imposition of these civil
penalties would be deposited in the Water Rights Fund.
The bill would specify that, in a proceeding before the board in
which it is alleged that an appropriative water right has ceased, or
is subject to prescribed action, it shall be deemed that a diversion
or use required to be reported, as specified, did not occur unless
that diversion or use was reported to the board as required by law.
(9)
(8) 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6103.1 of the Government Code is amended to
read:
6103.1. Section 6103 does not apply to any fee or charge for
official services required by Part 1 (commencing with Section 1000),
Part 2 (commencing with Section 1200), Part 3 (commencing with
Section 2000), Part 4 (commencing with Section 4000), Part 5
(commencing with Section 4999), or Part 5.1 (commencing with Section
51000) of Division 2 of the Water Code.
SEC. 2. Article 3.5 (commencing with Section
285) is added to Chapter 2.5 of Division 1 of the Water Code, to
read:
Article 3.5. Public Access to Information on Diversion and Use
285. The department and the board shall establish and maintain a
centralized, publicly accessible database of water diversion and
water use.
286. (a) The department or the board may adopt emergency
regulations to implement this article.
(b) The emergency regulations may include, but are not necessarily
limited to, the following:
(1) Regulations providing for the electronic filing of reports
used in establishing and maintaining the database established under
this article.
(2) Regulations establishing monitoring and reporting requirements
implementing Section 1061.
(3) Regulations specifying the contents of, and format for,
reports of diversion and use submitted under Part 5 (commencing with
Section 4999) or Part 5.1 (commencing with Section 5100), of Division
2.
(4) Regulations specifying the contents of, and format for,
reports submitted under subdivision (d) or (e) of Section 5101.
(5) Regulations requiring reporting of diversion and use by
persons authorized to appropriate water under a registration for
small domestic or livestock uses, permit or license, or who divert
water within the meaning of Section 5101.
(6) Regulations requiring the reporting of any other water
diversion or water use reasonably necessary to include in the
database established under this article, and specifying the contents
and format of those reports.
(c) Emergency regulations adopted pursuant to this section, or any
amendments thereto, shall be adopted by the department or the board
in accordance with Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code. The adoption
of these regulations is an emergency and shall be considered by the
Office of Administrative Law as necessary for the immediate
preservation of the public peace, health, safety, and general
welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, any
emergency regulations or amendments to those regulations adopted
under this section shall remain in effect until revised by the
department or the board that adopted the regulations or amendments.
SEC. 3. SEC. 2. Section 1051.1 is
added to the Water Code, to read:
1051.1. (a) In conducting any investigation or proceeding
specified in Section 1051, the board may order any person or entity
that diverts or uses water to prepare, under penalty of perjury, and
to submit to the board, any technical or monitoring program reports
related to that person's or entity's diversion or use of water as the
board may specify. The costs incurred by the person or entity in the
preparation of those reports shall bear a reasonable relationship to
the need for the report and the benefit to be obtained from the
report. If the preparation of individual reports would result in a
duplication of effort, or if the reports are necessary to evaluate
the cumulative effect of several diversions or uses of water, the
board may order any person or entity subject to this subdivision to
pay a reasonable share of the cost of preparing reports.
(b) Any order issued under this section shall be served by
personal service or registered mail on the party required to submit
technical or monitoring program reports or to pay a share of the
costs of preparing reports. Unless the board issues the order after a
hearing, the order shall inform the party of the right to request a
hearing within 30 days after the party has been served. If the party
does not request a hearing within that 30-day period, the order shall
take effect as issued. If the party requests a hearing within that
30-day period, the board may adopt a decision and order after
conducting a hearing.
(c) Upon application of any person or entity or upon its own
motion, the board may review and revise any order issued pursuant to
this section, in accordance with the procedures set forth in
subdivision (b).
(d) In conducting any investigation or proceeding specified in
Section 1051, the board may inspect the facilities of any person or
entity to ascertain whether the purposes of Section 100 and this
division are being met and to ascertain compliance with any permit,
license, certification, registration, decision, order or regulation
issued under Section 275, this division, or Article 7 (commencing
with Section 13550) of Chapter 7 of Division 7. Except in the event
of an emergency affecting the public health or safety, the inspection
shall be made with the consent of the owner or possessor of the
facilities or, if the consent is withheld, with a warrant duly issued
pursuant to the procedure set forth in Title 13 (commencing with
Section 1822.50) of Part 3 of the Code of Civil Procedure.
SEC. 4. SEC. 3. Section 1052 of the
Water Code is amended to read:
1052. (a) The diversion or use of water subject to this division
other than as authorized in this division is a trespass.
(b) The Attorney General, upon request of the board, shall
institute in the superior court in and for any county in which the
diversion or use is threatened, is occurring, or has occurred an
action for the issuance of injunctive relief as may be warranted by
way of temporary restraining order, preliminary injunction, or
permanent injunction.
(c) (1) Any person or entity committing a trespass as defined in
this section may be liable in an amount not to exceed the sum of the
following:
(A) One thousand dollars ($1,000) for each day in which the
trespass occurs.
(B) One thousand dollars ($1,000) for each acre-foot of water
diverted or used other than as authorized in this division.
(2) Civil liability may be imposed by the superior court.
The Attorney General, upon request of the board, shall petition
the superior court to impose, assess, and recover any sums pursuant
to this subdivision. In determining the appropriate amount, the court
shall take into consideration all relevant circumstances, including,
but not limited to, the extent of harm caused by the violation, the
nature and persistence of the violation, the length of time over
which the violation occurs, and the corrective action, if any, taken
by the violator.
(3) Civil liability may be imposed by the board pursuant to
Section 1055.
(d) All funds recovered pursuant to this section shall be
deposited in the Water Rights Fund established pursuant to Section
1550.
(e) The remedies prescribed in this section are cumulative and not
alternative.
SEC. 5. SEC. 4. Section 1055 of the
Water Code is amended to read:
1055. (a) The executive director of the board may issue a
complaint to any person or entity on which administrative civil
liability may be imposed pursuant to Section 1052 or 1118, Article 4
(commencing with Section 1845) of Chapter 12 of Part 2 of Division 2,
or Section 5107. The complaint shall allege the act or failure to
act that constitutes a trespass or violation, the provision of law
authorizing civil liability to be imposed, and the proposed civil
liability.
(b) The complaint shall be served by personal notice or certified
mail, and shall inform the party served that the party may request a
hearing not later than 20 days from the date the party was served.
The hearing shall be before the board, or a member of the board in
accordance with Section 183.
(c) The board may adopt an order setting administrative civil
liability, or determining that no liability will be imposed, after
any necessary hearing.
(d) Orders setting administrative civil liability shall become
effective and final upon issuance thereof and payment shall be made.
SEC. 6. SEC. 5. Section 1055.2 of
the Water Code is amended to read:
1055.2. No person or entity shall be subject to both civil
liability imposed under Section 1055 and civil liability imposed by
the superior court under Section 1052, Section 1118, Section 1845, or
Section 1846 for the same act or failure to act.
SEC. 7. Section 1061 is added to the Water
Code, to read:
1061. (a) The board shall establish by January 1, 2012, a
two-year pilot program to install real-time, telemetered monitoring
devices on diversions in, and tributary to, the Delta.
(b) The board shall report to the Legislature following completion
of the pilot program. The report shall include recommendations as to
whether the program should be continued, and whether the program
should be extended to other areas of the state.
(c) As used in this section, "Delta" means the Sacramento-San
Joaquin Delta, as described in Section 12200.
SEC. 8. SEC. 6. Chapter 3.5
(commencing with Section 1110) is added to Part 1 of Division 2 of
the Water Code, to read:
CHAPTER 3.5. INTERIM RELIEF
1110. (a) The board may issue an interim relief order in
appropriate circumstances, after notice and an opportunity for a
hearing, in proceedings to enforce all of the following:
(1) Section 2 of Article X of the California Constitution.
(2) The public trust doctrine.
(3) Water quality objectives adopted pursuant to subdivision
(b) of Section 13142, Section 13170, or Section 13241.
(b) of Section 13142, or Section 13170 or 13241.
(4) The requirements set forth in permits and licenses issued
pursuant to Part 2 (commencing with Section 1200), including actions
that invoke the board's reserved jurisdiction.
(5) Division 1 (commencing with Section 100), this division, or
Article 7 (commencing with Section 13550) of Chapter 7 of Division 7.
(6) Section 5937 of the Fish and Game Code.
(b) The board may commence an interim relief proceeding on its own
motion or upon the petition of any interested party. The board shall
not accept any petition that does not include all of the following
information:
(1) The name and address of the petitioner.
(2) A description of the specific diversion or use of water that
the petitioner is contesting.
(3) A statement of the petitioner's interest in the contested
diversion or use of water.
(4) Identification of the proceedings in which interim relief is
requested.
(5) A description of the harm or injury complained of.
(6) An explanation of the nexus between the diversion or use and
the alleged harm or injury.
(7) A statement of reasons that would justify the relief that the
petitioner has requested.
(8) Any additional information that the board may deem
appropriate.
(c) The board may dismiss a petition that does not raise
substantial issues that are appropriate for review.
(d) Unless the board concludes that consideration of the matter is
urgent, the board shall provide notice at least 20 days before the
hearing date. In its discretion, the board may provide that the
evidence to be considered shall be based on declarations under
penalty of perjury, the testimony of witnesses at the hearing, or
both. The board shall also consider oral or written legal argument
that is provided in a timely manner by the parties. The board may
establish a schedule for filing declarations and written arguments.
(e) If the board issues an interim relief order without providing
at least 20 days' notice before the hearing date, or if the board
issues an interim relief order after considering the declaration of
any witness who is not available for cross examination, the interim
relief order shall remain in effect for a period not to exceed 180
days unless the party to whom the interim relief order is issued
agrees to an extension of that period. This subdivision is not a
limitation on the authority of the board to issue any additional
interim relief in response to changed circumstances.
(f) In determining whether to provide interim relief, and the
nature and extent of the relief, the board shall consider all
relevant circumstances, including the effects on other legal users of
water, fish, wildlife, and other instream beneficial uses, the
extent of harm, the necessity for relief, and any appropriate measure
to minimize any adverse effects of providing interim relief.
Sufficient grounds shall exist for interim relief upon the same
showing as would be required for a superior court to grant a
preliminary injunction.
1111. (a) As part of the interim relief order, the board may
require the water diverter or user to do any of the following:
(1) Cease all harmful practices.
(2) Employ specific procedures and operations to prevent or
mitigate the harm.
(3) Complete technical and monitoring work and prepare and submit
reports on that work, including draft environmental documentation.
(4) Participate in studies to develop proposed streamflow
requirements, and reimburse the Department of Fish and Game for the
costs of those studies, pursuant to Division 10 (commencing with
Section 10000) of the Public Resources Code.
(5) Reimburse the board's expenses for the preparation of any
necessary environmental documentation.
(6) Take other required action.
(b) The board shall set a schedule for compliance with any interim
relief order. If a schedule is not being met, the board may hold a
hearing, in accordance with Section 1110, to consider changes or
other actions which are appropriate under the circumstances,
including, but not limited to, further interim relief or changes in
the schedule.
1112. If the board orders interim relief, the board shall set a
schedule, as soon as reasonably possible, for the board's
consideration of permanent relief. The schedule shall include actions
which the water diverter or user is required to undertake to ensure
timely consideration of the permanent relief. The actions required of
the water diverter or user may include, but are not limited to, the
completion of technical and monitoring work, the preparation and
submittal of reports on that work, including draft environmental
documentation, and the reimbursement of the board's expenses. If the
schedule is not being met, the board may hold a hearing in accordance
with Section 1110 to consider changes or other actions as may be
appropriate under the circumstances. Any permanent relief shall be
granted after notice and an opportunity for a hearing.
1113. (a) Except as otherwise specified in this section, any
interim relief order issued by the board is exempt from the
requirements of Division 13 (commencing with Section 21000)
if of the Public Resources Code if the board
makes either of the following findings:
(1) Providing interim relief will not have a significant adverse
effect on the environment.
(2) Providing interim relief will result in environmental
benefits, or avoid adverse impacts on the environment which may
result from providing interim relief. If the board makes a finding
pursuant to this paragraph, the board shall also adopt the finding or
findings specified in Section 21081 of the Public Resources Code.
(b) Any findings of the board pursuant to this section shall be
supported by substantial evidence in the record. If the board makes
the findings specified in paragraph (1) of subdivision (a) of Section
21081 of the Public Resources Code, or if the board finds that
providing interim relief will not have a significant adverse effect
on the environment because any potentially significant adverse effect
will be avoided as a result of mitigation incorporated in the board'
s order, the board shall adopt a reporting and monitoring program in
accordance with Section 21081.6 of the Public Resources Code.
(c) Sections 21167, 21167.1, 21167.4, 21167.5, 21167.6, 21167.7,
21167.8, 21168, 21168.5, 21168.9, and 21177 of the Public Resources
Code shall apply to any action or proceeding to attack, review, set
aside, void, or annul any action or decision of the board pursuant to
this chapter on grounds of noncompliance with this section.
1114. The board may review and revise any part of an interim
relief order at any time after notice to all interested parties and
an opportunity for hearing.
1115. The adoption of an interim relief order by the board shall
not be deemed to alter the burdens of proof or the burdens of coming
forward in a subsequent proceeding for permanent relief before the
board on the same factual and legal issues.
1116. This chapter is not a limitation on the jurisdiction of any
court or agency over any matter within that court or agency's
jurisdiction.
1117. If any water diverter or user fails to comply with any part
of an interim relief order, the Attorney General, upon the request
of the board, shall petition the superior court for the issuance of a
prohibitory or mandatory injunctive relief, as necessary, through
the issuance of a temporary restraining order, preliminary
injunction, or permanent injunction.
1118. (a) Any person or entity who violates any interim relief
order issued by the board is liable for a civil penalty of not more
than five thousand dollars ($5,000) for each day in which a violation
occurs.
(1) Civil liability may be imposed by the superior court. The
Attorney General, upon request of the board, shall petition the
superior court to impose the liability.
(2) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(b) In determining the appropriate amount, the court or the board,
as the case may be, shall consider all the relevant circumstances,
including the extent of harm caused by the violation, the nature and
persistence of the violation, the length of time over which the
violation occurs, and any corrective action undertaken by the
violator.
(c) Funds derived from civil penalties assessed pursuant to this
section shall be deposited in the Water Rights Fund.
SEC. 9. SEC. 7. Section 1126 of the
Water Code is amended to read:
1126. (a) It is the intent of the Legislature that all issues
relating to state water law decided by the board be reviewed in state
courts, if a party seeks judicial review. It is further the intent
of the Legislature that the courts assert jurisdiction and exercise
discretion to fashion appropriate remedies pursuant to Section 389 of
the Code of Civil Procedure to facilitate the resolution of state
water rights issues in state courts.
(b) Any party aggrieved by any decision or order may, not later
than 30 days from the date of final action by the board, file a
petition for a writ of mandate for review of the decision or order.
Except in cases where the decision or order is issued under authority
delegated to an officer or employee of the board, reconsideration
before the board is not an administrative remedy that is required to
be exhausted before filing a petition for writ of mandate. The time
for filing the petition for writ of mandate and the time for filing
an action or proceeding in which the board is a respondent under
Section 21167 of the Public Resources Code shall be extended for any
person who seeks reconsideration by the board pursuant to this
article. The amendment of this subdivision made during the 2001
portion of the 2001-02 Regular Session does not constitute a change
in, but is declaratory of, existing law.
(c) Section 1094.5 of the Code of Civil Procedure shall govern
judicial proceedings under this section. For the purposes of
subdivision (c) of Section 1094.5 of the Code of Civil Procedure, the
court shall exercise its independent judgement on the evidence in
any case involving the judicial review of a cease and desist order
issued pursuant to Article 2 (commencing with Section 1831) of
Chapter 12 of Part 2, and in any other case in which the court is
authorized by law to exercise its independent judgement on the
evidence. The scope of review of any decision or order issued under
Chapter 3.5 (commencing with Section 1110) shall be the same as for a
court of appeal review of a superior court decision.
(d) If no aggrieved party petitions for a writ of mandate within
the time provided by this section, the decision or order of the board
is not subject to review by any court.
(e) In any court case reviewing a decision or order by the state
board relating to a permit or license to appropriate water held by
the state through the department or any other state agency, or to a
permit or license to appropriate water held by the United States
through the Bureau of Reclamation or any other federal agency, the
election by the United States, or any agency thereof, not to be a
party shall not, in and of itself, be the basis for dismissal
pursuant to Section 389 of the Code of Civil Procedure or any other
provision of law.
SEC. 10. SEC. 8. Section 1240.5 is
added to the Water Code, to read:
1240.5. In any proceeding before the board in which it is alleged
that a right to appropriate water has ceased or is subject to
forfeiture or revocation for nonuse, it shall be deemed that any
diversion or use required to be reported pursuant to any reporting or
monitoring requirement established under any permit, license,
certificate, registration, decision or order, or regulation issued by
the board pursuant to this division, Section 275 or 286
, Article 7 (commencing with Section 13550) of Division 7,
or the public trust doctrine did not occur unless that diversion or
use was reported to the board.
SEC. 11. SEC. 9. Section 1525 of the
Water Code is amended to read:
1525. (a) Each person or entity who holds a permit or license to
appropriate water, and each lessor of water leased under Chapter 1.5
(commencing with Section 1020) of Part 1, shall pay an annual fee
according to a fee schedule established by the board.
(b) Each person or entity who files any of the following shall pay
a fee according to a fee schedule established by the board:
(1) An application for a permit to appropriate water.
(2) A registration of appropriation for a small domestic use or
livestock stockpond.
(3) A petition for an extension of time within which to begin
construction, to complete construction, or to apply the water to full
beneficial use under a permit.
(4) A petition to change the point of diversion, place of use, or
purpose of use, under a permit or license.
(5) A petition to change the conditions of a permit or license,
requested by the permittee or licensee, that is not otherwise subject
to paragraph (3) or (4).
(6) A petition to change the point of discharge, place of use, or
purpose of use, of treated wastewater, requested pursuant to Section
1211.
(7) An application for approval of a water lease agreement.
(8) A request for release from priority pursuant to Section 10504.
(9) An application for an assignment of a state-filed application
pursuant to Section 10504.
(10) A statement of water diversion and use pursuant to Part 5.1
(commencing with Section 5100).
(c) The board shall set the fee schedule authorized by this
section so that the total amount of fees collected pursuant to this
section equals that amount necessary to recover costs incurred in
connection with the issuance, administration, review, monitoring, and
enforcement of permits, licenses, certificates, and registrations to
appropriate water, water leases, statements of diversion and use,
and orders approving changes in point of discharge, place of use, or
purpose of use of treated wastewater. The board may include, as
recoverable costs, but is not limited to including, the costs
incurred in reviewing applications, registrations, statements of
diversion and use, petitions and requests, prescribing terms of
permits, licenses, registrations, and change orders, enforcing and
evaluating compliance with permits, licenses, certificates,
registrations, change orders, and water leases, inspection,
monitoring, planning, modeling, reviewing documents prepared for the
purpose of regulating the diversion and use of water, applying and
enforcing the public trust doctrine, Section 275, the prohibition set
forth in Section 1052 against the unauthorized diversion or use of
water subject to this division, the requirements under Part 5.1
(commencing with Section 5100) for filing statements of diversion and
use, and the administrative costs incurred in connection with
carrying out these actions.
(d) (1) The board shall adopt the schedule of fees authorized
under this section as emergency regulations in accordance with
Section 1530.
(2) For filings subject to subdivision (b), the schedule may
provide for a single filing fee or for an initial filing fee followed
by an annual fee, as appropriate to the type of filing involved, and
may include supplemental fees for filings that have already been
made but have not yet been acted upon by the board at the time the
schedule of fees takes effect.
(3) The board shall set the amount of total revenue collected each
year through the fees authorized by this section at an amount equal
to the revenue levels set forth in the annual Budget Act for this
activity. The board shall review and revise the fees each fiscal year
as necessary to conform with the revenue levels set forth in the
annual Budget Act. If the board determines that the revenue collected
during the preceding year was greater than, or less than, the
revenue levels set forth in the annual Budget Act, the board may
further adjust the annual fees to compensate for the over or under
collection of revenue.
SEC. 12. SEC. 10. Section 1535 of
the Water Code is amended to read:
1535. (a) Any fee subject to this chapter that is required in
connection with the filing of an application, registration, request,
statement, or proof of claim, other than an annual fee required after
the period covered by the initial filing fee, shall be paid to the
board.
(b) If a fee established under subdivision (b) of Section 1525,
or Section 1528 , or Section or
13160.1 is not paid when due,
the board may cancel the application, registration,
petition, request, statement, or claim, or may refer the matter to
the State Board of Equalization for collection of the unpaid fee.
SEC. 13. SEC. 11. Section 1538 of
the Water Code is amended to read:
1538. (a) In any proceeding pursuant to Section 1052 in which it
is determined that there has been a violation of the prohibition
against the unauthorized diversion or use of water subject to this
division, the board or court, as the case may be, may impose an
additional liability in the amount of any annual fees that would have
been required under this division if the diversion or use had been
authorized by a permit or license to appropriate water.
(b) In any proceeding pursuant to Section 5107 in which the board
imposes liability for a failure to file a statement of diversion and
use or for a material misstatement in a statement of diversion and
use, the board may impose an additional liability in the amount of
any fees that have not been paid but would have been required under
this division if the statement of diversion and use had been filed
and did not make any material misstatement.
(c) The additional liability imposed under this section may
include interest, at the rate provided under Section 685.010 of the
Code of Civil Procedure, from the dates the annual fees would have
been assessed.
SEC. 14. SEC. 12. Section 1551 of
the Water Code is amended to read:
1551. All of the following shall be deposited in the Water Rights
Fund:
(a) All fees, expenses, and penalties collected by the board or
the State Board of Equalization under this chapter and Part 3
(commencing with Section 2000).
(b) All funds collected under Section 1052, Section 1118, Article
4 (commencing with Section 1845) of Chapter 12, or Section 5107.
(c) All fees collected under Section 13160.1 in connection with
certificates for activities involving hydroelectric power projects
subject to licensing by the Federal Energy Regulatory Commission.
SEC. 15. SEC. 13. Section 1825 of
the Water Code is amended to read:
1825. It is the intent of the Legislature that the state should
take vigorous action to enforce the terms and conditions of permits,
licenses, certifications, and registrations to appropriate water, to
enforce state board orders and decisions, to prevent the unlawful
diversion of water, and to prevent the waste, unreasonable use,
unreasonable method of use, or unreasonable method of diversion of
water, and to enforce reporting and monitoring requirements.
SEC. 16. SE C. 14.
Section 1831 of the Water Code is amended to read:
1831. (a) When If the board
determines that any person is violating, or threatening to violate,
any requirement described in subdivision (d), the board may issue an
order to that person to cease and desist from that violation.
(b) The cease and desist order shall require that person to comply
forthwith or in accordance with a time schedule set by the board.
(c) The board may issue a cease and desist order only after notice
and an opportunity for hearing pursuant to Section 1834.
(d) The board may issue a cease and desist order in response to a
violation or threatened violation of any of the following:
(1) The prohibition set forth in Section 1052 against the
unauthorized diversion or use of water subject to this division.
(2) Any term or condition of a permit, license, certification, or
registration issued under this division.
(3) Any decision or order of the board issued under this part,
Section 275, or Article 7 (commencing with Section 13550) of Chapter
7 of Division 7, in which decision or order the person to whom the
cease and desist order will be issued, or a predecessor in interest
to that person, was named as a party directly affected by the
decision or order.
(4) Any regulation adopted under Section 275 or 286
provided that the board shall not issue a cease and desist
order for violation of a regulation adopted by the department, other
than a regulation jointly adopted by the department and board, unless
enforcement is requested by the department.
(5) Any reporting or monitoring requirement established under any
decision, order, or regulation issued by the board pursuant to this
division, Section 275 or 286 , Article 7
(commencing with Section 13550) of Division 7, or the public trust
doctrine.
(e) This article does not authorize the board to regulate in any
manner, the diversion or use of water not otherwise subject to
regulation by the board.
SEC. 17. SEC. 15. Section 1845 of
the Water Code is amended to read:
1845. (a) Upon the failure of any person to comply with a cease
and desist order issued by the board pursuant to this chapter, the
Attorney General, upon the request of the board, shall petition the
superior court for the issuance of prohibitory or mandatory
injunctive relief as appropriate, including a temporary restraining
order, preliminary injunction, or permanent injunction.
(b) (1) Any person or entity who violates a cease and desist order
issued pursuant to this chapter may be liable in an amount not to
exceed the sum of the following:
(A) Two thousand five hundred dollars ($2,500) for each day in
which the violation occurs.
(B) Two thousand five hundred dollars ($2,500) for each acre-foot
of water diverted or used in violation of the cease and desist order.
(2) Civil liability may be imposed by the superior court. The
Attorney General, upon the request of the board, shall petition the
superior court to impose, assess, and recover those sums.
(3) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(c) In determining the appropriate amount, the court, or the
board, as the case may be, shall take into consideration all relevant
circumstances, including, but not limited to, the extent of harm
caused by the violation, the nature and persistence of the violation,
the length of time over which the violation occurs, and the
corrective action, if any, taken by the violator.
(d) All funds recovered pursuant to this section shall be
deposited in the Water Rights Fund established pursuant to Section
1550.
SEC. 18. SEC. 16. Section 1846 is
added to the Water Code, to read:
1846. (a) Any person or entity subject to a monitoring or
reporting requirement specified in subdivision (f) who violates that
reporting or monitoring requirement, makes a material misstatement in
any record or report submitted under that reporting or monitoring
requirement, or tampers with or renders inaccurate any monitoring
device required under that reporting or monitoring requirement shall
be liable for a sum not to exceed five hundred dollars ($500) for
each day in which the violation occurs.
(b) Civil liability may be imposed by the superior court. The
Attorney General, upon the request of the board, shall petition the
superior court to impose, assess, and recover those sums.
(c) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(d) In determining the appropriate amount, the court, or the
board, as the case may be, shall take into consideration all relevant
circumstances, including, but not limited to, the extent of harm
caused by the violation, the nature and persistence of the violation,
the length of time over which the violation occurs, and the
corrective action, if any, taken by the violator.
(e) All funds recovered pursuant to this section shall be
deposited in the Water Rights Fund established pursuant to Section
1550.
(f) (1) This section applies to any reporting or monitoring
requirement established under any permit, license, certificate,
registration, decision or order, or regulation issued by the board
pursuant to this division, Section 275, Section 286,
Article 7 (commencing with Section 13550) of Division 7, or
the public trust doctrine.
(2) This section also applies to any reporting or monitoring
requirement established by the department under Section 275 or 286,
if the department requests enforcement pursuant to this section.
(3) This section does not provide a basis for imposing liability
on a watermaster who is subject to reporting or monitoring
requirements but does not divert or use the water subject to those
requirements.
SEC. 19. SEC. 17. Section 1847 is
added to the Water Code, to read:
1847. (a) Any person or entity who violates any term or condition
of a permit, license, or certification issued under this division or
any order or regulation adopted by the board under Section 275 may
be liable in an amount not to exceed five hundred dollars ($500) for
each day in which the violation occurs.
(b) Civil liability may be imposed by the superior court. The
Attorney General, upon the request of the board, shall petition the
superior court to impose, assess, and recover those sums.
(c) Civil liability may be imposed administratively by the board
pursuant to Section 1055.
(d) In determining the appropriate amount, the court, or the
board, as the case may be, shall take into consideration all relevant
circumstances, including, but not limited to, the extent of harm
caused by the violation, the nature and persistence of the violation,
the length of time over which the violation occurs, and the
corrective action, if any, taken by the violator.
(e) No liability shall be recoverable under this section for any
violation for which liability is recovered under Section 1052 or
1846.
(f) All funds recovered pursuant to this section shall be
deposited in the Water Rights Fund established pursuant to Section
1550.
SEC. 20. SEC. 18. Section 2525 of
the Water Code is amended to read:
2525. Upon petition signed by one or more claimants to water of
any stream system, requesting the determination of the rights of the
various claimants to the water of that stream system, or
upon its own motion, the board shall, if, upon
investigation, it finds the facts and conditions are such that the
public interest and necessity will be served by a determination of
the water rights involved, enter an order granting the petition
or motion and make proper arrangements to proceed
with the determination. The board may initiate a determination
of rights under its own motion if after a hearing it finds
that the public interest and necessity will be served by a
determination of the rights involved.
SEC. 21. SEC. 19. Section 2526 of
the Water Code is amended to read:
2526. As soon as practicable after granting the petition or
motion , the board shall prepare and issue a notice
setting forth the following:
(a) The facts of the entry of the order and of the pendency of the
proceedings.
(b) That all claimants to rights to the use of water of the stream
system are required to inform the board within 60 days from the date
of the notice, or such further time as the board may allow, of their
intention to file proof of claim.
(c) The date prior to which all claimants to rights to the water
of the stream system shall notify the board in writing of their
intention to file proof of claim and the address to which all
subsequent notices to the claimant relating to the proceedings may be
sent.
(d) A statement that all claimants will be required to make proof
of their claims at a time to be fixed by the board after the
conclusion of its investigation.
SEC. 22. SEC. 20. Section 2550 of
the Water Code is amended to read:
2550. As soon as practicable after granting the petition or
motion, the board shall begin an investigation of the stream system,
of the diversion of water, of all beneficial uses being made of the
water, and of the water supply available for those uses, and shall
gather such other data and information as may be essential to the
proper determination of the water rights in the stream system.
SEC. 23. SEC. 21. Section 2763.5 of
the Water Code is amended to read:
2763.5. (a) No exception to the order of determination shall be
considered, except in the court's discretion for good cause shown,
unless the matter of the exception was presented to the board in the
form of an objection. Good cause includes, but is not limited to, the
existence of newly discovered relevant evidence which, in the
exercise of reasonable diligence, could not have been presented to
the board during the board's proceedings.
(b) This section does not apply to persons to whom the board did
not mail either (1) written notice of the board meeting at which the
petition or motion pursuant to Section 2525 is to be considered as an
item of business, or (2) written notice of the pendency of the
proceedings pursuant to Section 2526.
SEC. 24. SEC. 22. Section 5100 of
the Water Code is amended to read:
5100. As used in this part:
(a) "Best available technologies" means technologies at the
highest technically practical level, using flow totaling devices, and
if necessary, data loggers and telemetry.
(b) "Best professional practices" means practices attaining and
maintaining the accuracy of measurement and reporting devices and
methods.
(c) "Diversion" means taking water by gravity or pumping from a
surface stream or subterranean stream flowing through a known and
definite channel, or other body of surface water, into a canal,
pipeline, or other conduit, and includes impoundment of water in a
reservoir.
(d) "Person" means all persons whether natural or artificial,
including the United States of America, State of California, and all
political subdivisions, districts, municipalities, and public
agencies.
SEC. 25. SEC. 23. Section 5101 of
the Water Code is amended to read:
5101. Each person who, after December 31, 1965, diverts water
shall file with the board, prior to July 1 of the succeeding year, a
statement of his or her diversion and use; provided,
however, that no statement need be filed if the diversion is any of
the following:
(a) From a spring that does not flow off the property on which it
is located and from which the person's aggregate diversions do not
exceed 25 acre-feet in any year.
(b) Covered by a registration for small domestic or livestock
stockpond uses, permit or license to appropriate water on file with
the board.
(c) Included in a notice filed pursuant to Part 5 (commencing with
Section 4999) of this division.
(d) Regulated by a watermaster appointed by the department, and
included in annual reports filed with a court or the board by the
watermaster, which reports identify the persons who have diverted
water and give the general purpose and place of, and use and the
quantity of, water that has been diverted from each source.
(e) Included in annual reports filed with a court or the board by
a watermaster appointed by a court or pursuant to statute to
administer a final judgment determining rights to water, which
reports identify the persons who have diverted water and give the
general place of use and the quantity of water which has been
diverted from each source.
(f) For use in compliance with Article 2.5 (commencing with
Section 1226) of, or Article 2.7 (commencing with Section 1228) of,
Chapter 1 of Part 2.
(g) A diversion that occurs before January 1, 2009, if any of the
following applies:
(1) The diversion is from a spring that does not flow off the
property on which it is located, and the person's aggregate
diversions exceed 25 acre-feet in any year.
(2) The diversion is covered by an application to appropriate
water on file with the board.
(3) The diversion is reported by the department in its hydrologic
data bulletins.
(4) The diversion is included in the consumptive use data for the
Delta lowlands published by the department in its hydrologic data
bulletins.
SEC. 26. SEC. 24. Section 5103 of
the Water Code is amended to read:
5103. Each statement shall be prepared on a form provided by the
board. The statement shall include all of the following information:
(a) The name and address of the person who diverted water and of
the person filing the statement.
(b) The name of the stream or other source from which water was
diverted, and the name of the next major stream or other body of
water to which the source is tributary.
(c) The place of diversion. The location of the diversion works
shall be depicted on a specific United States Geological Survey
topographic map, or shall be identified using the California
Coordinate System, or latitude and longitude measurements. If
assigned, the public land description to the nearest 40-acre
subdivision and the assessor's parcel number shall also be provided.
(d) The capacity of the diversion works and of the storage
reservoir, if any, and the months in which water was used during the
preceding calendar year.
(e) (1) On and after January 1, 2012, monthly records of water
diversions. The measurements of the diversion shall be made using
best available technologies and best professional practices.
(2) Paragraph (1) does not apply to a surface water diversion with
a combined diversion capacity from a natural channel that is less
than one cubic feet foot per second.
(3) (A) The terms of, and eligibility for, any grant or loan
awarded or administered by the department, the board, or the
California Bay-Delta Authority on behalf of a person that is subject
to paragraph (1) shall be conditioned on compliance with that
paragraph.
(B) Notwithstanding subparagraph (A), the board may determine that
a person is eligible for a grant or loan even though the person is
not complying with paragraph (1), if both of the following apply:
(i) The board determines that the grant or loan will assist the
grantee or loan recipient in complying with paragraph (1).
(ii) The person has submitted to the board a one-year schedule for
complying with paragraph (1).
(C) It is the intent of the Legislature that the requirements of
this subdivision shall complement and not affect the scope of
authority granted to the board by provisions of law other than this
article.
(f) For persons not subject to paragraph (1) of subdivision (e), a
description of the acreage of each crop irrigated, the average
number of people served with water, the average number of stock
watered, and the nature and extent of any other use during the
preceding calendar year, or other equivalent information that
indicates the quantity of water used as may be prescribed by the
board. Those who maintain water measuring devices and keep monthly
records of water diversions shall state the quantity of water
diverted by months during the preceding calendar year.
(g) The purpose of use.
(h) A general description of the area in which the water was used.
The location of the place of use shall be depicted on a specific
United States Geological Survey topographic map and on any other maps
with identifiable landmarks. If assigned, the public land
description to the nearest 40-acre subdivision and the assessor's
parcel number shall also be provided.
(i) The year in which the diversion was commenced as near as is
known.
SEC. 27. SEC. 25. Section 5106 of
the Water Code is amended to read:
5106. (a) Neither the statements submitted under this part nor
the determination of facts by the board pursuant to Section 5105
shall establish or constitute evidence of a right to divert or use
water.
(b) (1) The board may rely on the names and addresses included in
statements submitted under this part for the purpose of determining
the names and addresses of persons who are to receive notices with
regard to proceedings before the board.
(2) Notwithstanding paragraph (1), any person may submit, in
writing, a request to the board to provide notification to a
different address, and the board shall provide the notification to
that address.
(3) If the board provides notice to persons who file statements
under this part, the notice shall not be determined to be inadequate
on the basis that notice was not received by a person, other than a
party to whom the board's action is directed, who fails to file a
statement required to be filed under this part.
(4) This subdivision does not affect the requirement in Section
2527 to provide notice to all persons who own land that appears to be
riparian to the stream system.
(c) In any proceeding before the board to determine whether an
application for a permit to appropriate water should be approved, any
statement submitted under this part or determination by the board
pursuant to Section 5105 is evidence of the facts stated therein.
(d) (1) In any proceeding before the board in which it is alleged
that an appropriative right has ceased or is subject to forfeiture
for nonuse because water has not been put to beneficial use, it shall
be deemed that no use required to be included in a statement
submitted under this part occurred unless that use is included in a
statement submitted under this part.
(2) Paragraph (1) does not apply to any use that occurred before
January 1, 2009.
SEC. 28. SEC. 26. Section 5107 of
the Water Code is amended to read:
5107. (a) The making of any willful misstatement pursuant to this
part is a misdemeanor punishable by a fine not exceeding one
thousand dollars ($1,000) or by imprisonment in the county jail for
not to exceed six months, or both.
(b) Any person who fails to file a statement required to be filed
under this part for a diversion or use that occurs after January 1,
2009, or who makes a material misstatement pursuant to this part may
be liable civilly as provided in subdivision (c).
(c) Civil liability may be administratively imposed by the board
pursuant to Section 1055 in an amount not to exceed twenty-five
thousand dollars ($25,000) for each violation. In determining the
appropriate amount, the board shall consider all relevant
circumstances, including, but not limited to, all of the following
factors:
(1) The extent of harm caused by the violation.
(2) The nature and persistence of the violation.
(3) The length of time over which the violation occurs.
(4) Any corrective action undertaken by the violator.
(d) All funds recovered pursuant to this section shall be
deposited in the Water Rights Fund established pursuant to Section
1550.
(e) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal.
SEC. 29. SEC. 27. Section 5108 of
the Water Code is repealed.
SEC. 30. SEC. 28. No reimbursement
is required by this act pursuant to Section 6 of Article XIII B 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 XIII B of the California Constitution.