Bill Text: CA AB460 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: State Water Resources Control Board: water rights and usage: civil penalties.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2024-09-22 - Chaptered by Secretary of State - Chapter 342, Statutes of 2024. [AB460 Detail]

Download: California-2023-AB460-Amended.html

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Amended  IN  Assembly  March 30, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 460

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Introduced by Assembly Member Bauer-Kahan
(Principal coauthor: Assembly Member Friedman)

February 06, 2023

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An act to amend Sections 1055, 1055.2, 1126, and 1846 of, to add Sections 1051.2 and 1055.5 to, and to add Chapter 3.6 (commencing with Section 1115) to Part 1 of Division 2 of the Water Code, relating to water.

LEGISLATIVE COUNSEL'S DIGEST

AB 460, as amended, Bauer-Kahan. State Water Resources Control Board: water rights and usage: interim relief. relief: procedures.

(1) Existing law authorizes the State Water Resources Control 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. Existing law requires the board to take appropriate actions to prevent waste or the unreasonable use of water.

This bill would authorize the board, in conducting specified investigations or proceedings to inspect the property or facilities of a person or entity, as specified. The bill would authorize the board, if consent is denied for an inspection, to obtain an inspection warrant, as specified, or in the event of an emergency affecting public health and safety, to conduct an inspection without consent or a warrant. Because the willful refusal of an inspection lawfully authorized by an inspection warrant is a misdemeanor, this bill would impose a state-mandated local program by expanding the application of a crime.

(2) Existing law authorizes the executive director of the board to issue a complaint to any person or entity on which administrative civil liability may be imposed pursuant to specified law, and requires the complaint to be served by personal notice or certified mail.

This bill would expand methods of notice for those purposes to include notice in accordance with the manner of service of a summons under specified provisions of the Code of Civil Procedure.

(3) Under existing law, the diversion or use of water other than as authorized by specified provisions of law is a trespass, subject to specified civil liability.

This bill would require the State Water Resources Control Board to adjust for inflation, by January 1 of each year, beginning in 2025, the amounts of civil and administrative liabilities or penalties imposed by the board in water right actions, as specified.

The

(4) The California Constitution requires the reasonable and beneficial use of water. Under the public trust doctrine, the State Water Resources Control 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 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.

Existing law requires that the owner of any dam allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around, or through the dam, to keep in good condition any fish that may be planted or exist below the dam, as specified.

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. to a diverter or user of water in adjudicative proceedings to apply or enforce specified provisions of law related to water rights and quality. The bill would provide that 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 the sum of $10,000 for each day in which a violation occurs and $5,000 for each acre-foot of water diverted in violation of the interim relief order. The bill would require these funds to be deposited in the Water Rights Fund.

(5) Existing law authorizes any party aggrieved by any decision or order of the State Water Resources Control Board, not later than 30 days from the date of final action by the board, to file a petition for a writ of mandate for judicial review of the decision or order. Existing law requires a court to exercise its independent judgment on the evidence in any case involving the judicial review of certain cease and desist orders issued by the board and in any other case in which the court is authorized by law to exercise its independent judgment on the evidence.

This bill would require an aggrieved party to file a petition for reconsideration with the board to exhaust the party’s administrative remedies before filing an action for judicial review of the board’s decision or order under specified circumstances. The bill would require the scope of review of a board decision or order regarding interim relief to be the same as for a court of appeal review of a superior court decision granting or denying a preliminary injunction. The bill would generally prohibit, except as provided, a legal or equitable process from issuing in any proceeding in a court against the board or an officer of the board to review, prevent, or enjoin certain adjudicative proceedings or a decision or order of the board before a final decision or order of the board is issued.

(6) Existing law authorizes a person or entity in violation of a term or condition of a permit, license, certificate, or registration issued by, or an order or regulation adopted by, the board to be held civilly liable for an amount not to exceed $500 for each day that the violation occurs.

The bill would increase the amount of civil liability for the above-described violations to $10,000 for each day in which the violation occurs and $2,500 for each acre-foot of water diverted or used that amounted to the violation.

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.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NOYES  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1051.2 is added to the Water Code, to read:

1051.2.

 (a) In conducting an investigation or proceeding specified in Section 275 or 1051, or in Article 7 (commencing with Section 13550) of Chapter 7 of Division 7, the board may inspect the property or facilities of a person or entity to ascertain whether the purposes of Section 100 and this division are being met or 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.

(b) If consent to inspect is denied or otherwise withheld, the board is authorized to obtain an inspection warrant pursuant to the procedure set forth in Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure for purposes of an inspection under this section. However, in the event of an emergency affecting the public health or safety, an inspection may be performed without consent or the issuance of a warrant.

SEC. 2.

 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, Section 1119, 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. mail, or in accordance with the manner of service of a summons under Article 3 (commencing with Section 415.10) of, and Article 4 (commencing with Section 416.10) of, Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. The complaint shall inform the party served that the party may request a hearing not later than 20 days from the date the party was served and that the board may adopt an order setting administrative civil liability based on the allegations set forth in the complaint without a hearing if the party does not sign a written request for a hearing that is delivered to, or received by mail by, the board within 20 days after 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, after any necessary hearing, may adopt an order setting administrative civil liability, or determining that a liability shall not be imposed.

(d) Orders setting administrative civil liability shall become effective and final upon issuance thereof and payment shall be made.

SEC. 3.

 Section 1055.2 of the Water Code is amended to read:

1055.2.

 A person or entity shall not be subject to both civil liability imposed under Section 1055 and civil liability imposed by the superior court under Section 1052 1052, Section 1119, or Article 4 (commencing with Section 1845) of Chapter 12 of Part 2 of Division 2 for the same act or failure to act.

SEC. 4.

 Section 1055.5 is added to the Water Code, to read:

1055.5.

 (a) (1) The board shall adjust on an annual basis, by January 1 of each year beginning in 2025, all civil and administrative liabilities or penalties imposed by the board in an action brought at the request of the board pursuant to this division, to adjust the maximum amounts specified in this division for inflation, as established by the amount by which the California Consumer Price Index for the month of June of the year prior to the adjustment exceeds the California Consumer Price Index for June of the calendar year in which legislation was last enacted establishing or amending the maximum amount of the liability or penalty.

(2) The amount of any liability or penalty determined pursuant to this subdivision shall be rounded as follows:

(A) To the nearest multiple of ten dollars ($10) in the case of a liability or penalty that is less than or equal to one hundred dollars ($100).

(B) To the nearest multiple of one hundred dollars ($100) in the case of a liability or penalty that is greater than one hundred dollars ($100), but less than or equal to one thousand dollars ($1,000).

(C) To the nearest multiple of one thousand dollars ($1,000) in the case of a liability or penalty that is greater than one thousand dollars ($1,000), but less than or equal to ten thousand dollars ($10,000).

(D) To the nearest multiple of five thousand dollars ($5,000) in the case of a liability or penalty that is greater than ten thousand dollars ($10,000).

(3) Inflation adjustments made pursuant to this subdivision are exempt from the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The updated civil and administrative liability or penalties pursuant to the inflation adjustment shall be filed with the Secretary of State and published in the California Code of Regulations.

(b) This section does not apply to any liability imposed under Section 1538.

(c) The board shall report to the Legislature, in accordance with Section 9795 of the Government Code, with regard to the implementation of this section.

SECTION 1.SEC. 5.

 Chapter 3.6 (commencing with Section 1115) is added to Part 1 of Division 2 of the Water Code, to read:

CHAPTER  3.6. Interim Relief

1115.

 (a) The board may issue an interim relief order in appropriate circumstances, after notice and an opportunity for a hearing, to a diverter or user of water in adjudicative proceedings to apply or enforce any of the following: following with respect to water held under any basis of right:

(1) Section 2 of Article X of the California Constitution.

(2) The public trust doctrine.

(3) Water quality objectives or principals principles and guidelines adopted under subdivision (b) of Section 13142, Section 13149, Section 13170, or 13241.

(4) The requirements set forth in permits, licenses, certificates, and registrations issued under Part 2 (commencing with Section 1200), including actions that invoke the board’s reserved jurisdiction or continuing authority.

(5) Any provision in Division 1 (commencing with Section 100), this division, or Article 7 (commencing with Section 13550) of Chapter 7 of Division 7.

(5)

(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 an interested party. The board shall not accept a petition that does not include all of the following information:

(1) The name and mailing 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 adjudicative 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) The relief the petitioner is requesting.

(8) A statement of reasons explaining why the relief is justified.

(9) 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.

(d) Except as provided in subdivision (e), the board shall provide notice at least 10 days before the hearing date.

(e) The board may issue an interim order prior to the opportunity for a hearing in either of the following cases:

(1) The order includes a finding by the board that immediate compliance is necessary to prevent imminent or irreparable injury to other legal users of water, or to instream beneficial uses.

(2) The motion or petition alleges violation of a regulation or order adopted by the board pursuant to Section 1058.5 or a regulation adopted pursuant to Section 1058 to curtail diversions to protect instream flows or prior water rights.

(f) If the board issues an interim relief order prior to the opportunity for a hearing, it shall, at the request of the party to whom the order is issued, hold a hearing within 15 days of the date the board receives the request for a hearing, unless the party to whom the interim relief order is issued agrees to an extension of that period.

(g) In any hearing pursuant to this section, the board may, in its discretion, 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, exhibits, and written arguments.

(e)

(h) 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 made available during the hearing 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)

(i) In determining whether to provide interim relief, and the nature and extent of the relief, the board shall consider all relevant circumstances, including available information concerning 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 measures 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.

1115.5.

 (a) As part of the interim relief order, the board may require a 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, and provide funding for, studies that the board determines are reasonably necessary to evaluate the impact of the diversion or use that is the subject of the adjudicative proceeding.

(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.

1116.

 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 that 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. Any permanent relief shall be granted after notice and an opportunity for a hearing.

1116.5.

(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) 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 prevent harm to environmental resources, and the benefits provided or harm prevented outweighs any adverse effects that 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 a 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, 21167.6.5, 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.

1116.5.

 Notwithstanding Section 15300.2 of Title 14 of the California Code of Regulations, actions of the board under this chapter shall be deemed to be within the meaning of Section 15308 of Title 14 of the California Code of Regulations.

1117.

 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 a hearing.

1117.5.

 The issuance or denial of an interim relief order by the board does not alter the burdens of proof or the burdens of coming forward with respect to the board’s final decision on the merits in the adjudicative proceeding in which interim relief is requested.

1118.

 This chapter is not a limitation on the jurisdiction of any court or agency over any matter within that court or agency’s jurisdiction.

1118.5.

 If a water diverter or user does not comply with an interim relief order, the Attorney General, upon the request of the board, shall petition the superior court for prohibitory or mandatory injunctive relief, as necessary, through the issuance of a temporary restraining order, preliminary injunction, or permanent injunction.

1119.

 (a) (1) Any person or entity that violates an interim relief order issued by the board is liable for a civil penalty not to exceed the sum of the following:

(A) Ten thousand dollars ($10,000) for each day in which a violation occurs.

(B) Five thousand dollars ($5,000) for each acre-foot of water diverted in violation of the interim relief order.

(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 the liability. The Superior Court shall impose the civil penalty if it determines by a preponderance of the evidence that the water diverter or user subject to the interim relief order has violated the order.

(3) Civil liability may be imposed administratively by the board pursuant to Section 1055.

(b) In determining the appropriate amount, the court or 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) All funds recovered pursuant to this section shall be deposited in the Water Rights Fund.

(d) Remedies under this section are in addition to, and do not supersede or limit, any and all other remedies, civil or criminal.

1119.5.

 This chapter does not limit any authority held by the board under this code or any other provision of law.

SEC. 6.

 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 the intent of the Legislature that judicial review of a final decision or order of the board shall be in accordance with this section. 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 An aggrieved party shall file a petition for reconsideration with the board to exhaust that party’s administrative remedies before filing an action under this section, or under Section 21167 of the Public Resources Code if the board is a respondent in connection with its issuance of an order or decision subject to this chapter, only if the initial 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. board. 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 judgment 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 of Division 2, and in any other case in which the court is authorized by law to exercise its independent judgment on the evidence. The scope of review of a decision or order issued under Chapter 3.6 (commencing with Section 1115) shall be the same as for a court of appeal review of a superior court decision granting or denying a preliminary injunction.

(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 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.

(f) Except as provided in this section, a legal or equitable process shall not issue in a proceeding in a court against the board or an officer of the board to review, prevent, or enjoin either of the following:

(1) An adjudicative proceeding under this division.

(2) A decision or order of the board before a final decision or order is issued.

SEC. 7.

 Section 1846 of the Water Code is amended to read:

1846.

 (a) (1) A person or entity may be liable for a violation of any of the following of paragraph (2) in an amount not to exceed five hundred dollars ($500) for each day in which the violation occurs: the sum of the following:

(A) Ten thousand dollars ($10,000) 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 that amounted to the violation.

(1)

(2) (A) A term or condition of a permit, license, certificate, or registration issued under this division.

(2)

(B) A regulation or order adopted by the board.

(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.

SEC. 8.

 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.