Water Quality & Water Rights Issues SB 1904 (Costa)

SUMMARY:

SB 1904, as introduced, would repeal certain provisions of the Sacramento Area Flood Control Agency Act relating to assessments. It is expected that this bill will be amended to add several new provisions including amending Water Code water quality and water rights provisions relating to: (1) Regional Water Quality Control Board (RWQCB) hearing panels, (2) issuance of non-controversial permits, (3) statements of water diversion and use, (4) stockpond certification, and (5) validation of temporary permits (TPs).

BACKGROUND:

Regional Water Quality Control Board Hearing Panels: Current law provides for hearing panels consisting of three or more members of RWQCBs to recommend action to the full RWQCBs on cease and desist orders (CDs) and administrative civil liability (ACL) matters. However, the Water Code contains no such provision for hearing basin plan amendments, National Pollutant Discharge Elimination System (NPDES) permits and Waste Discharge Requirements (WDRs).

Issuance of Non-Controversial Permits: Current law authorizes the RWQCBs to issue NPDES permits and WDRs. RWQCB staff reviews permit applications and makes recommendations on the applications for action by the Board at scheduled RWQCB meetings.

Statements of Water Diversion and Use: The SWRCB relies on the statements of diversion and use, filed by water right holders, to determine if there are any other water right holders who should get notice of a permit application. These statements also provide an important record and source of information about diversions within any given watershed.

Stockpond Certification: Current law provides for a Stockwater Pond Certification Program administered by the SWRCB. Applicants to this program may acquire a water right priority for water in a stockpond using the date of construction of the pond provided the application was filed prior to December 31, 1977 and the pond is not in excess of 10 acre-feet. Without this program, such applications would receive a priority using the date of the application. By enhancing the water right priority, the SWRCB was providing an incentive for owners to register their ponds. In order to be eligible, the stockpond had to be constructed prior to January 1, 1969, therefore, there are few ponds that are still eligible. At this time, 3553 certificates are active and six applications are pending certification.

Validation of Temporary Permits: The SWRCB meets once a month and the lead time on agenda items is approximately one month. Therefore, work must begin on an agenda item at least one month before the next scheduled Board meeting. Because of this lead time, it is often difficult or impossible to meet the 30-day requirement for validation of TPs and Temporary Urgency Changes (TUCs). As a result, the Division of Water Rights must occasionally delay issuance of a TP or TUC to fit the SWRCB's meeting schedule.

PROBLEM:

RWQCB Hearing Panels: While a hearing panel consisting of three or more members of a RWQCB is authorized to act on certain items of RWQCB business, other matters are not within the jurisdiction of a hearing panel. Without expanded authority of hearing panels, the RWQCBs cannot efficiently and effectively conduct their business and dispose of routine matters and non-controversial issues in a streamlined manner.

Issuance of Non-Controversial Permits: Most NPDES permits and WDRs require SWRCB or RWQCB approval. Several RWQCBs meet only once a month and in some regions the RWQCB does not meet monthly. The infrequency of RWQCB Board meetings can cause costly delays to dischargers who have submitted applications for NPDES or WDR permits.

Statements of Water Diversion and Use: State law requires that water rights holders submit water diversion and use statements to the SWRCB, but does not prescribe any legal consequence for failure to file these statements. Diverters who failed to file statements, and as a result did not get notice of proceedings pending before the SWRCB, have challenged actions taken by the SWRCB in those proceedings on the grounds that they did not get notice. Similarly, where water right claimants do not have records to prove that they have been diverting and using water, the fact that they did not file statements of diversion and use cannot be used as evidence against those claims. The SWRCB relies on the statements of diversion and use to determine if there are any other water right holders who should get notice of a permit application.

Stockpond Certification: Since 1975, the SWRCB's Stockpond Certification Program has had, in effect, an "amnesty" program to encourage parties to apply for stockpond certification. However, there is an inequity between this program and the program for Registration of Small Use Domestic Appropriations (Small Use Domestic). The Small Use Domestic program is subject to the SWRCB order concerning declaration of fully appropriated stream systems in California. These orders impose seasonal restrictions regarding availability of water. However, the stockpond program is not subject to these SWRCB orders. Although the maximum amount of 10 acre-feet per annum that can be appropriated under the stockpond and small use domestic programs is the same, it is not equitable that the small use domestic program is subject to the orders and the stockpond program is not. Eliminating the amnesty program would remove this inequity.

Validation of Temporary Permits: Current law requires that TPs and TUC issued by a SWRCB member or staff be validated within 30 days by the full SWRCB. Because of the lead time needed for a SWRCB agenda item, it is often difficult or impossible to meet the 30-day requirement. As a result, such delays are contrary to an applicant's urgent need for water.

ANALYSIS:

SB 1904 would:

1. Authorize hearing panels of three RWQCB members to act on basin plan amendments, NPDES permits and WDRs. This change would allow the hearing panels to recommend actions to the full RWQCBs, assure that RWQCBs hold hearings as scheduled, and eliminate any delays.
2. Allow the RWQCB Executive Officers (EOS) to issue WDRs where a public hearing is not required by law. EOs would continue to take all controversial WDRs to the RWQCBs for action.
3. Provide that where an interested person did not get notice of an SWRCB proceeding because that person failed to file a statement of water diversion and use, that person cannot challenge the SWRCB's decision on grounds that the SWRCB failed to provide notice. Failure to file a statement of diversion and use would establish a rebuttable presumption that no diversion or use occurred. In addition, the SWRCB would be authorized to impose civil penalties on applicants who file false statements, consistent with recommendations of the Administrative Conference of the United States that where a regulatory statute imposes criminal penalties, the alternative of civil penalties would also be imposed.
4. Establish a deadline by which persons who seek to take advantage of the existing stockpond amnesty program must submit claims to the SWRCB.
5. Clarify that authority can be delegated to an officer or employee of the SWRCB to issue temporary permits or approve temporary urgency changes and repeal the requirement for validation by SWRCB members at a hearing.

CONTACT:

Tom Jones, Chief, Office of Legislative and Public Affairs, State Water Resources Control Board, (916) 657-1247