Bill Text: CA SB389 | 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: investigation of water right.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2023-10-08 - Chaptered by Secretary of State. Chapter 486, Statutes of 2023. [SB389 Detail]

Download: California-2023-SB389-Amended.html

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Amended  IN  Assembly  July 06, 2023

Amended  IN  Senate  April 27, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 389

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Introduced by Senator Allen

February 09, 2023

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An act to add Article 6 (commencing with Section 1860) to Chapter 12 of Part 2 of Division 2 amend Section 1051 of the Water Code, relating to water.

LEGISLATIVE COUNSEL'S DIGEST

SB 389, as amended, Allen. State Water Resources Control Board: determination investigation of water right.

Existing law establishes the State Water Resources Control Board within the California Environmental Protection Agency. Existing law provides generally for the appropriation of water. Existing law provides that it is the intent of the Legislature that the state take vigorous action to enforce the terms and conditions of permits, licenses, certifications, and registrations to appropriate water, to enforce state board orders and decisions, and to prevent the unlawful diversion of water. Existing law authorizes the board to investigate bodies of water, to take testimony in regard to the rights to water or the use of water, and to ascertain whether or not water is appropriated lawfully, as provided. 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, upon specified findings, authorize the State Water Resources Control Board to investigate the diversion and use of water from a stream system to determine whether the diversion and use are based upon appropriation, riparian right, or other basis of right, as specified. The bill would authorize the state board to adopt regulations to implement these provisions.

This bill would instead authorize the board to investigate and ascertain whether or not a water right is valid. The bill would authorize the board to issue an information order in furtherance of an investigation, as executed by the executive director of the board, to a water right holder or claimant, diverter, or user to provide the information related to a diversion and use of water, as specified. The bill would authorize a diversion or use of water ascertained to be unauthorized pursuant to this provision to be enforced as a trespass.

Digest Key

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

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Bill Text

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

SECTION 1.

 Section 1051 of the Water Code is amended to read:

1051.

 (a) The board for the purpose of this division may:

(a)

(1) Investigate all streams, stream systems, portions of stream systems, lakes, or other bodies of water.

(b)

(2) Take testimony in regard to the rights to water or the use of water thereon or therein.

(c)Ascertain

(3) Investigate and ascertain whether or not water heretofore filed upon or attempted to be appropriated is appropriated any claimed riparian or appropriative right is valid under the laws of this State. state.

(b) In furtherance of an investigation authorized pursuant to this section, the board may issue an information order, as executed by the executive director of the board, to a water right holder or claimant, diverter, or user to provide the following information related to a diversion and use of water:

(1) Information required to be reported pursuant to Part 5.1 (commencing with Section 5100).

(2) Information concerning the basis of the water right claimed.

(3) Information related to the patent date claimed for the place of use, if the claimed right is a riparian right.

(4) Information concerning the notice date of the appropriation and the date of actual delivery of water to beneficial use.

(5) Information concerning the prior diversions and use, including direct diversions and diversions to storage.

(c) The burden of any order issued under subdivision (b), including costs, shall bear a reasonable relationship to the need for the requested information and the benefits to be obtained from the board receiving that information. In making a request, the board shall do both of the following:

(1) Provide the person to whom the request is directed with a written explanation with regard to the need for the information.

(2) Identify the evidence that supports requiring that person to provide the information.

(d) A diversion or use of water ascertained to be unauthorized under this section may be enforced as a trespass under Section 1052.

(e) Nothing in this section shall limit any authority held by the board under this code or any other provision of law.

SECTION 1.Article 6 (commencing with Section 1860) is added to Chapter 12 of Part 2 of Division 2 of the Water Code, to read:

6.Determination of Basis of Right

1860.

Upon a finding that there is reason to believe that the information would protect the public interest or further the state board’s responsibilities under Section 2 of Article X of the California Constitution or the public trust doctrine, the state board may investigate the diversion and use of water from a stream system to determine whether the diversion and use are based upon appropriation, riparian right, or other basis of right.

1861.

In furtherance of an investigation authorized pursuant to Section 1860, the state board may issue an information order to a water right claimant, diverter, or user to provide technical reports or other information related to a diversion and use of water, including, but not limited to, all of the following:

(a)Information in addition to any information required to be reported pursuant to Part 5.1 (commencing with Section 5100).

(b)Information related to the basis of the water right claimed.

(c)Information related to the patent date claimed for the place of use.

(d)Information related to the notice date of the appropriation and the date of actual delivery of water to beneficial use.

(e)Information related to prior diversions and use, including direct diversions and diversions to storage.

(f)Information related to the diversions and use of transferred water.

1862.

After notice and opportunity for hearing, the state board may issue a decision or order determining the diversion and use basis of right, including the authorized scope of the diversion and use, or may issue a decision or order determining that the diversion and use is not authorized under any basis of right.

1863.

In determining under this article whether a holder of an appropriative water right has forfeited the right or any portion of the right pursuant to Sections 1240 and 1241, the state board is not required to find the existence of a conflicting claim by any water right holder within the stream system during the period of forfeiture.

1864.

In any state board proceeding to determine a diversion and use basis of right under this article, the water right claimant, diverter, or user shall have the burden of proving by the preponderance of evidence the elements of the basis of right.

1865.

Nothing in this article shall limit the authority of the state board to issue any decision or order, or to take any other action authorized by law.

1866.

The state board may adopt regulations to implement this article.