Improving the Efficiency of Water Rights Administration 1997 Legislative Package -- SB 849 (Kelley)

Sponsor: SWRCB
Release Date: July, 1997
Contact: Diane Richardson, Cal/EPA's Legislative Director at (916) 322-7315 or Tom Jones, Chief Office of Legislation and Public Affairs, State Water Resources Control Board at (916) 657-1247

SUMMARY:

This is a spot bill, which will soon to be amended to address two subjects concerning water rights administration: (1) the water right application process, and (2) collections of administrative civil liability.

BACKGROUND:

The current water right application process is long and subject to delays, due in part to the process required by existing law. The combination of a difficult process, inadequate information and delays on the part of the applicants, has resulted in a large backlog of unprocessed applications for water rights.

Existing law also authorizes the SWRCB to impose administrative civil liability for the illegal diversion or use of water, but does not provide the SWRCB with a means to collect unpaid fines. The law imposing penalties has little effect on the illegal water user if the penalties are not collected, and the illegal diversion may continue without any meaningful penalty.

PROBLEM:

The Water Right Application Process

Water Code Section 1375(d) requires that there be unappropriated water available to supply an applicant prior to the issuance of a permit. Many applicants do not currently provide information to support a finding that unappropriated water is available because the analyses required to support such a finding are cumbersome and expensive. Many applicants are also reluctant to initiate studies or surveys related to development of a California Environmental Quality Act (CEQA) document required by the permit process. The SWRCB must have an adequate environmental review document in order to comply with the requirements of CEQA before a permit can be issued. Traditionally, SWRCB staff have conducted most of the water availability and environmental impact analyses for all but the largest and most sophisticated projects, at little or no cost to the applicant. This has placed a tremendous workload and financial burden on the SWRCB.

Further, protests filed against water right applications and petitions for change have created an increasing backlog for the SWRCB. The current process of resolving a protest is staff intensive and time consuming. Most protests filed with the SWRCB are against minor projects, filed by neighbors or parties downstream from a small project. Combined with the long and complex process required by the Water Code and CEQA for resolving environmental protests, protests against minor projects have significantly delayed the SWRCB's processing of water right applications.

Collections of Administrative Civil Liability

Water Code Section 1052 authorizes the SWRCB to impose administrative civil liability (ACL) for illegal diversion or use of water, in an amount not to exceed $500 for each day the illegal diversion occurs. This procedure has provided for more efficient and effective enforcement than it would otherwise be if penalties were required to be imposed by a court. However, problems have arisen in collecting an ACL once imposed. Existing statutes do not provide a means for reducing a final administrative order into a judgment for collection, making it unclear how an ACL can be collected. Currently, if a penalty is not paid, it is referred to the Attorney General's office for collection, where collection activity has a low priority.

ANALYSIS:

SB 849 would amend the Water Code to provide a clear and streamlined process for water right applications. It would also establish a procedure for obtaining a judgment to collect an ACL imposed for water right violations.