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AB-1337 State Water Resources Control Board: water diversion curtailment.(2023-2024)

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Date Published: 05/19/2023 04:00 AM
AB1337:v97#DOCUMENT

Amended  IN  Assembly  May 18, 2023
Amended  IN  Assembly  April 20, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 1337

Introduced by Assembly Member Wicks

February 16, 2023

An act to amend Sections 1052 and 1831 of, and to add Chapter 2.5 (commencing Section 1065) to Part 1 of Division 2 of, the Water Code, relating to water.


LEGISLATIVE COUNSEL'S DIGEST


AB 1337, as amended, Wicks. State Water Resources Control Board: water diversion curtailment.
(1) 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 expand the instances when the diversion or use of water is considered a trespass.
(2) Existing law establishes the State Water Resources Control Board in the California Environmental Protection Agency and vests the board with various powers and duties, including, among other things, to ascertain whether or not water heretofore filed upon or attempted to be appropriated is appropriated under the laws of this state. Existing law authorizes the board to adopt emergency regulations if, among other things, the regulations are adopted to prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion, of water, to promote water recycling or water conservation, to require curtailment of diversions when water is not available under the diverter’s priority of right, or in furtherance of any of the foregoing, to require reporting of diversion or use or the preparation of monitoring reports.
This bill would authorize the board to issue a curtailment order for any diversion, regardless of basis of right, when water is not available under the diverter’s priority of right. The bill would authorize require the board to adopt regulations to implement this provision.
(3) Existing law authorizes the board to issue a cease and desist order against a person who is violating, or threatening to violate, certain requirements relating to water use.
This bill would additionally authorize the board to issue a cease and desist order when a water right holder fails to curtail diversions when water is unavailable under the water right holder’s priority of right.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 (a) It is the intent of the Legislature that the State Water Resources Control Board shall be able to exercise its full authority under Section 2 of Article X of the California Constitution, the public trust doctrine, and Division 1 (commencing with Section 100) and Division 2 (commencing with Section 1000) of the Water Code to ensure that the use or diversion of water under any claim of right serves the public interest.
(b) It is the intent of the Legislature that this bill clarify that the State Water Resources Control Board has the necessary authority to curtail pre-1914 water rights and address the gap in the state board’s authority revealed by the court in the series of cases known as the California Water Curtailment Cases.

SEC. 2.

 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 is a trespass.
(b) (1) An action for the issuance of injunctive relief as may be warranted by way of temporary restraining order, preliminary injunction, or permanent injunction, may be brought by the Attorney General on behalf of the board, or in the Attorney General’s independent capacity in the name of the people of the State of California, where the diversion or use of water is threatened, is occurring, or has occurred.
(2) (A) A civil action for a violation under this section resulting from unlicensed cannabis cultivation may also be brought by a city attorney or county counsel, upon approval of the board, in the name of the people of the State of California.
(B) A city attorney or county counsel shall inform and coordinate with the board as to the investigation of potential violations of this section related to unlicensed cannabis cultivation. Unless the board withholds its approval within 21 days after the local jurisdiction provides notice of its intent to file, the local jurisdiction may deem the board’s silence as approval.
(c) A person or entity committing a trespass as defined in this section may be liable in an amount not to exceed the following:
(1) If the unauthorized diversion or use occurs in a critically dry year immediately preceded by two or more consecutive below normal, dry, or critically dry years, or during a period for which the Governor has issued a proclamation of a state of emergency under the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code) based on drought conditions, the sum of the following:
(A) One thousand dollars ($1,000) for each day in which the trespass occurs.
(B) Two thousand five hundred dollars ($2,500) for each acre-foot of water diverted or used in excess of that diverter’s water rights.
(2) If the unauthorized diversion or use is not described by paragraph (1), five hundred dollars ($500) for each day in which the unauthorized diversion or use occurs.
(3) Notwithstanding paragraphs (1) and (2), up to three thousand five hundred dollars ($3,500) for each day in which the unauthorized diversion or use for unlicensed cannabis cultivation occurs.
(d) Civil liability for a violation of this section may be imposed by the superior court or the board as follows:
(1) The superior court may impose civil liability in an action brought by the Attorney General, upon request of the board, to impose, assess, and recover any sums pursuant to subdivision (c). 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.
(2) The superior court may impose civil liability in an action for a violation under this section resulting from unlicensed cannabis cultivation brought by a city attorney or county counsel to impose, assess, and recover any sums pursuant to subdivision (c). 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, whether the violation was intentional or committed knowingly, the nature and persistence of the violation, the length of time over which the violation has occurred, and the corrective action, if any, taken by the violator. The court shall make its findings on the record.
(3) The board may impose civil liability in accordance with Section 1055.
(e) (1) Upon appropriation by the Legislature, funds recovered in an action pursuant to this section shall be used to proportionally reimburse the Attorney General, city attorney, county counsel, and the board for costs of bringing the action, including reasonable attorney’s fees, and of investigating the violation and supporting the prosecution of the action.
(2) Except for reimbursements to the Attorney General, city attorney, or county counsel, as specified in paragraph (1), all funds recovered pursuant to this section shall be deposited in the Water Rights Fund established pursuant to Section 1550.
(f) The remedies prescribed in this section are cumulative and not alternative.

SEC. 3.

 Chapter 2.5 (commencing with Section 1065) is added to Part 1 of Division 2 of the Water Code, to read:
CHAPTER  2.5. Water Shortage Enforcement

1065.
 (a) The board may issue a curtailment order for any diversion, regardless of basis of right, when water is not available under the diverter’s priority of right.
(b) Failure to comply with a curtailment order is a trespass as provided in Section 1052. trespass.
(c) The board may shall adopt regulations to implement this section.

SEC. 4.

 Section 1831 of the Water Code is amended to read:

1831.
 (a) When 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) When a water right holder fails to curtail diversions when water is unavailable under the water right holder’s priority of right.
(3) Any term or condition of a permit, license, certification, or registration issued under this division.
(4) Any decision or order of the board issued under this part, Section 275, Chapter 11 (commencing with Section 10735) of Part 2.74 of Division 6, 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.
(5) A regulation adopted under Section 1058.5.
(6) Any extraction restriction, limitation, order, or regulation adopted or issued under Chapter 11 (commencing with Section 10735) of Part 2.74 of Division 6.
(7) Any diversion or use of water for cannabis cultivation if any of paragraphs (1) to (6), inclusive, or any of the following applies:
(A) A license is required, but has not been obtained, under Chapter 6 (commencing with Section 26060) or Chapter 7 (commencing with Section 26070) of Division 10 of the Business and Professions Code.
(B) The diversion is not in compliance with an applicable limitation or requirement established by the board or the Department of Fish and Wildlife under Section 13149.
(C) The diversion or use is not in compliance with a requirement imposed under paragraphs (1) and (2) of subdivision (b) of Section 26060.1 of, and paragraph (3) of subdivision (a) of Section 26070 of, the Business and Professions Code.
(e) This article does not alter the regulatory authority of the board under other provisions of law.