Bill Text: CA AB2421 | 2021-2022 | Regular Session | Amended
Bill Title: Water: unlicensed cannabis cultivation.
Sponsorship: Bipartisan Bill
Status: (Engrossed - Dead) 2022-06-14 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB2421 Detail]
Download: California-2021-AB2421-Amended.html
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Amended
IN
Assembly
April 20, 2022 |
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Amended
IN
Assembly
March 14, 2022 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 2421
| Introduced by Assembly Member Blanca Rubio (Principal coauthor: Senator Wilk) (Coauthors: Assembly Members Cooley, Lackey, and Mayes) (Coauthor: Senator Rubio) |
February 17, 2022 |
An act to amend Sections 5650, 5650.1, and 13103 of the Fish and Game Code, and to amend Section 1052 of the Water Code, relating to water.
LEGISLATIVE COUNSEL'S DIGEST
AB 2421, as amended, Blanca Rubio.
Water: unlicensed cannabis cultivation.
(1) Existing law makes it unlawful to deposit, permit to pass, or place where it can pass, specified pollutants into the waters of this state, including any substance or material deleterious to fish, plant life, mammals, or bird life. A violation of this provision is a crime under the Fish and Game Code. Existing law also subjects a violation of that provision to a civil penalty of no more than $25,000 for each violation and an additional civil penalty of no more than $10 for each gallon or pound of material discharged, and requires the civil action to be brought by the Attorney General upon complaint by the Department of Fish and Wildlife or by the district attorney or city attorney in the name of the people of the State of California. Existing law provides that a specified affirmative defense to a violation of the criminal provision does not apply to an action
for civil penalties or injunctive relief pursuant to that civil provision.
This bill would provide that the specified affirmative defense to a violation of the criminal provision also does not apply in any other civil action that alleges a violation resulting from unlicensed cannabis cultivation. The bill would delete the requirement that the Attorney General only bring that civil action upon complaint by the department and would authorize, for a violation resulting from unlicensed cannabis cultivation, the civil action to be brought by a county counsel in the name of the people of the State of California.
(2) Existing law generally requires 1/2 of all fines and forfeitures imposed or collected in any court of this state for violations of the Fish and Game Code or any other law providing for the
protection or preservation of birds, mammals, fish, reptiles, or amphibians to be deposited in the county treasury of the county in which the violation was committed. Existing law requires those funds and other specified funds to be deposited in a county fish and wildlife propagation fund and authorizes the county board of supervisors to expend those funds for specified purposes.
This bill would additionally authorize expenditures from the fish and wildlife propagation fund of a county for costs incurred by a county counsel in investigating and prosecuting the civil actions specified in paragraph (1) for violations resulting from unlicensed cannabis cultivation.
(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 and injunctive relief imposed in the superior court in
actions brought by the Attorney General upon request of the State Water Resources Control Board. Existing law requires funds recovered pursuant to that provision to be deposited in the Water Rights Fund, which is available upon appropriation by the Legislature for specified purposes.
This bill would authorize, for a violation resulting from unlicensed cannabis cultivation, the civil action to be brought by a county counsel or city attorney in the name of the people of the State of California. California, as specified. The bill would delete the requirement that the Attorney General only bring the civil action upon request of the board. The bill would require funds recovered pursuant to that provision to, upon appropriation by the Legislature, first be used to reimburse the
Attorney General, city attorney, or county counsel for costs of bringing the action, including reasonable attorney’s fees.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 5650 of the Fish and Game Code is amended to read:5650.
(a) Except as provided in subdivision (b), it is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this state any of the following:(1) Any petroleum, acid, coal or oil tar, lampblack, aniline, asphalt, bitumen, or residuary product of petroleum, or carbonaceous material or substance.
(2) Any refuse, liquid or solid, from any refinery, gas house, tannery, distillery, chemical works, mill, or factory of any kind.
(3) Any sawdust, shavings, slabs, or edgings.
(4) Any factory refuse, lime, or slag.
(5) Any cocculus indicus.
(6) Any substance or material deleterious to fish, plant life, mammals, or bird life.
(b) This section does not apply to a discharge or a release that is expressly authorized pursuant to, and in compliance with, the terms and conditions of a waste discharge requirement pursuant to Section 13263 of the Water Code or a waiver issued pursuant to subdivision (a) of Section 13269 of the Water Code issued by the State Water Resources Control Board or a California regional water quality control board after a public hearing, or that is expressly authorized pursuant to, and in compliance with, the terms and conditions of a federal permit for which the
State Water Resources Control Board or a California regional water quality control board has, after a public hearing, issued a water quality certification pursuant to Section 13160 of the Water Code. This section does not confer additional authority on the State Water Resources Control Board, a California regional water quality control board, or any other entity.
(c) It shall be an affirmative defense to a violation of this section if the defendant proves, by a preponderance of the evidence, all of the following:
(1) The defendant complied with all applicable state and federal laws and regulations requiring that the discharge or release be reported to a government agency.
(2) The substance or material did not
enter the waters of the state or a storm drain that discharges into the waters of the state.
(3) The defendant took reasonable and appropriate measures to effectively mitigate the discharge or release in a timely manner.
(d) The affirmative defense in subdivision (c) does not apply and may not be raised in an action for civil penalties or injunctive relief pursuant to Section 5650.1, or in any other civil action that alleges a violation under this section resulting from unlicensed cannabis cultivation.
(e) The affirmative defense in subdivision (c) does not apply and may not be raised by any defendant who has on two prior occasions in the preceding five years, in any combination within the same county in which the case is
prosecuted, either pleaded nolo contendere, been convicted of a violation of this section, or suffered a judgment for a violation of this section or Section 5650.1. This subdivision shall apply only to cases filed on or after January 1, 1997.
(f) The affirmative defense in subdivision (c) does not apply and may not be raised by the defendant in any case in which a district attorney, city attorney, or Attorney General alleges, and the court finds, that the defendant acted willfully.
SEC. 2.
Section 5650.1 of the Fish and Game Code is amended to read:5650.1.
(a) A person who violates Section 5650 is subject to a civil penalty of not more than twenty-five thousand dollars ($25,000) for each violation.(b) The civil penalty imposed for each separate violation pursuant to this section is separate, and in addition to, any other civil penalty imposed for a separate violation pursuant to this section or any other provision of law, except as provided in subdivision (j).
(c) In determining the amount of a civil penalty imposed pursuant to this section, the court shall take into consideration all relevant circumstances, including, but not limited to, the nature, circumstance,
extent, and gravity of the violation. In making this determination, the court shall consider the degree of toxicity and volume of the discharge, the extent of harm caused by the violation, whether the effects of the violation may be reversed or mitigated, and with respect to the defendant, the ability to pay, the effect of any civil penalty on the ability to continue in business, any voluntary cleanup efforts undertaken, any prior history of violations, the gravity of the behavior, the economic benefit, if any, resulting from the violation, and any other matters the court determines justice may require.
(d) (1) Every civil action brought under this section shall be brought by the Attorney General, district attorney, or city attorney in the name of the people of the State of California, and any actions relating to the same
violation may be joined or consolidated.
(2) A civil action alleging a violation resulting from unlicensed cannabis cultivation may be brought by a county counsel in the name of the people of the State of California.
(e) In a civil action brought pursuant to this chapter in which a temporary restraining order, preliminary injunction, or permanent injunction is sought, it is not necessary to allege or prove at any stage of the proceeding that irreparable damage will occur if the temporary restraining order, preliminary injunction, or permanent injunction is not issued, or that the remedy at law is inadequate.
(f) After the party seeking the injunction has met its burden of proof, the court shall determine whether to issue a
temporary restraining order, preliminary injunction, or permanent injunction without requiring the defendant to prove that it will suffer grave or irreparable harm. The court shall make the determination whether to issue a temporary restraining order, preliminary injunction, or permanent injunction by taking into consideration, among other things, the nature, circumstance, extent, and gravity of the violation, the quantity and characteristics of the substance or material involved, the extent of environmental harm caused by the violation, measures taken by the defendant to remedy the violation, the relative likelihood that the material or substance involved may pass into waters of the state, and the harm likely to be caused to the defendant.
(g) The court, to the maximum extent possible, shall tailor a temporary restraining order,
preliminary injunction, or permanent injunction narrowly to address the violation in a manner that will otherwise allow the defendant to continue business operations in a lawful manner.
(h) All civil penalties collected pursuant to this section shall not be considered fines or forfeitures as defined in Section 13003 and shall be apportioned in the following manner:
(1) Fifty percent shall be distributed to the county treasurer of the county in which the action is prosecuted. Amounts paid to the county treasurer shall be deposited in the county fish and wildlife propagation fund established pursuant to Section 13100.
(2) Fifty percent shall be distributed to the department for deposit in the Fish and Game Preservation Fund.
These funds may be expended to cover the costs of legal actions or for any other law enforcement purpose consistent with Section 9 of Article XVI of the California Constitution.
(i) Except as provided in subdivision (j), in addition to any other penalty provided by law, a person who violates Section 5650 is subject to a civil penalty of not more than ten dollars ($10) for each gallon or pound of material discharged. The total amount of the civil penalty shall be reduced for every gallon or pound of the illegally discharged material that is recovered and properly disposed of by the responsible party.
(j) A person shall not be subject to a civil penalty imposed under this section and to a civil penalty imposed pursuant to Article 9 (commencing with Section 8670.57) of Chapter 7.4
of Division 1 of Title 2 of the Government Code for the same act or failure to
act.
SEC. 3.
Section 13103 of the Fish and Game Code is amended to read:13103.
Expenditures from the fish and wildlife propagation fund of any county may be made only for the following purposes:(a) Public education relating to the scientific principles of fish and wildlife conservation, consisting of supervised formal instruction carried out pursuant to a planned curriculum and aids to education such as literature, audio and video recordings, training models, and nature study facilities.
(b) Temporary emergency treatment and care of injured or orphaned wildlife.
(c) Temporary treatment and care of wildlife confiscated by the department as evidence.
(d) Breeding, raising, purchasing, or releasing fish or wildlife that are to be released upon approval of the department pursuant to Sections 6400 and 6401 onto land or into waters of local, state, or federal agencies or onto land or into waters open to the public.
(e) Improvement of fish and wildlife habitat, including, but not limited to, construction of fish screens, weirs, and ladders; drainage or other watershed improvements; gravel and rock removal or placement; construction of irrigation and water distribution systems; earthwork and grading; fencing; planting trees and other vegetation management; and removal of barriers to the migration of fish and wildlife.
(f) Construction, maintenance, and operation of public
hatchery facilities.
(g) Purchase and maintain materials, supplies, or equipment for either the department’s ownership and use or the department’s use in the normal performance of the department’s responsibilities.
(h) Predator control actions for the benefit of fish or wildlife following certification in writing by the department that the proposed actions will significantly benefit a particular wildlife species.
(i) Scientific fish and wildlife research conducted by institutions of higher learning, qualified researchers, or governmental agencies, if approved by the department.
(j) Reasonable administrative costs, excluding the costs of audits required
by Section 13104, for secretarial service, travel, and postage by the county fish and wildlife commission when authorized by the county board of supervisors. For purposes of this subdivision, “reasonable cost” means an amount that does not exceed 15 percent of the average amount received by the fund during the previous three-year period, or ten thousand dollars ($10,000) annually, whichever is greater, excluding any funds carried over from a previous fiscal year.
(k) Contributions to a secret witness program for the purpose of facilitating enforcement of this code and regulations adopted pursuant to this code.
(l) Costs incurred by the district attorney or city attorney in investigating and prosecuting civil and criminal actions for violations of this code, as approved by
the department.
(m) Costs incurred by a county counsel in investigating and prosecuting an action for civil penalties, injunctive relief, or civil penalties and injunctive relief pursuant to Section 5650.1 resulting from unlicensed cannabis cultivation.
(n) Other expenditures, approved by the department, for the purpose of protecting, conserving, propagating, and preserving fish and wildlife.
SEC. 4.
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 in this division 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, 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 in the name of the people of the State of California.
(B) A city attorney or county counsel shall notify the board and the regional board with jurisdiction over the city or county of the intent to file the action at least 15 days prior to commencing the action.
(c) Any 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.
(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 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, 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.
(3) The board may impose civil liability in accordance with Section 1055.
(e) (1) Upon appropriation by the Legislature, funds recovered pursuant to this section shall first be used to reimburse the Attorney General, city attorney, or county counsel for costs of bringing the action,
including reasonable attorney’s fees.
(2) Except 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.
