2001 Legislative Package

AB 946 (Kelley)

Water Rights
Sponsor: State Water Resources Control Board

Summary:

This bill would correct deficiencies in the State Water Resources Control Board’s (SWRCB's) water rights cease and desist order authority, improve water right petition processing, and clarify that Water Code § 1211 only applies to changes in the discharge or use of treated waste water that result in reduced flow in any portion of the watercourse.

Background:

The SWRCB administers the state’s water rights and water quality control programs. Effective enforcement is important to both programs, yet the state’s water right enforcement program is less effective than for water quality control.

Problem:

Water Rights Enforcement: Based on the recommendations of the Governor’s Commission to Review California Water Right Law, the Legislature enacted a statute in 1980 authorizing the SWRCB to issue cease and desist orders for water right violations. Although the statute said the state should take vigorous enforcement action, there have been obstacles to making effective use of the authority to issue and enforce cease and desist orders including limitations on the kinds of violations for which a cease and desist order may be issued, complex procedures for issuance of orders, and the inability to impose administrative civil liability for violations.

Water-Right Petition Process: Existing law requires that before the SWRCB approves a change in a permitted or licensed water right, the SWRCB must find that the change will not result in injury to other legal users of water. But many petitioners fail to provide the information needed to make this finding, or provide inadequate information concerning the environmental impacts of the proposed change. Similarly, some protestants fail to provide the information necessary to properly evaluate their protests. This makes the current water right petition process long and subject to delays due to inadequate information, and delays on the part of the petitioner or protestants.

Treated Waste Water Change: Water Code § 1211 currently requires the owner of any waste water treatment plant to obtain the approval of the SWRCB prior to making any change in the point of discharge, place of use, or purpose of use of treated waste water. While these procedures provide protection of third party water right holders and environmental interests that might be adversely affected by reduction in streamflows, they also require review of many water recycling projects that pose no threat of these adverse impacts because they do not reduce streamflows.

Aanlysis:

AB 946 would:

• Apply the provisions of the Water Code concerning water right application processing that were added by Chapter 323, Statutes of 1997 (SB 849, Kelley) to water right petition processing. The bill would authorize the SWRCB to request supplemental information from a petitioner or protestant that is reasonably necessary to evaluate the petition or protest, including information needed to demonstrate water availability and to comply with environmental laws. If the petitioner or protestant does not provide the information, the petition or protest may be canceled.
• Provide that the treated waste water change petition in Water Code § 1211 (that requires the owner of a waste water treatment plant to obtain the approval of the SWRCB before making any change in the point of discharge, place of use, or purpose of use of treated waste water) applies only to changes in the discharge or use of treated waste water that result in reduced flow in any portion of the watercourse.
• Clarify procedures for petitioning to change the point of diversion, place of use, or purpose of water that is described in an application, permit or license.
• Authorize the SWRCB to issue a cease and desist order to any person who the SWRCB determines is violating, or threatening to violate, a prohibition against unauthorized diversion or use of water, any term or condition of a permit, license, certification or registration issued by the SWRCB, or prescribed orders or decisions of the SWRCB. Additionally the bill would authorize the SWRCB to impose that liability administratively on any person who violates a cease and desist order.
• Declare legislative intent that the state take action to enforce certifications and registrations to appropriate water and to enforce SWRCB orders and decisions.

Contact:

Judy Verhaag, Acting Legislative Director
State Water Resources Control Board
(916) 341-5257

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