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HomeMy WebLinkAboutAgenda Report - June 7, 2023 C-30CITY OF "r 0 ZOO l CALIFORNIA COUNCIL COMMUNICATION AGENDA TITLE: Receive Report Regarding Communication State Water Resources Control Board: Procedures MEETING DATE: June 7, 2023 PREPARED BY: City Clerk AGENDA ITEM C0,30 Opposing Assembly Bill 460 (Bauer -Kahan) Water Rights and Usage: Interim Relief: RECOMMENDED ACTION. Receive report regarding communication opposing Assembly Bill 460 (Bauer -Kahan) State Water Resources Control Board: Water Rights and Usage: Interim Relief: Procedures. BACKGROUND INFORMATION: The City was asked by the Eastern San Joaquin Groundwater Joint Powers Authority and South San Joaquin Irrigation District to provide a letter of opposition to AB 460, which would which eliminate and weaken constitutionally -protected rights to judicial review of State Water Resources Control Board (State Water Board) actions. AB 460 would provide expansive new authority for the State Water Board to issue "interim relief orders," on its own motion or upon petition of an interested party, to apply or force such things as the Reasonable Use and Public Trust Doctrine and goes far beyond what is needed for the State Water Board to enforce and discourage illegal water diversions. The bill proposes to authorize interim relief orders and limit judicial review of numerous constitutional, statutory and common law doctrines that, by definition, require robust evidentiary records and full judicial review. AB 460 also provides unprecedented discretion to the State Water Board because it allows the board to immediately issue an interim relief order before holding a hearing if it is making certain findings. Water rights are property rights, and as such, may not be infringed without due process of law. Under AB 460, the State Water Board may issue an interim relief order without notification or opportunity to be heard until after the fact. Letters were needed immediately, and due to this urgency, Mayor Hothi signed the letter of opposition on Tuesday, May 23. A copy of the letter is attached to this report, along with a copy of AB 460. FISCAL IMPACT: FUNDING AVAILABLE: Not Applicable Not Applicable OG 'v a Nashei Olivia Nashed (May 30, 2023 10:47 PDT) Olivia Nashed City Clerk APPROVED. Steve Schwabauer (May 31.202308:39 PDT Stephen Schwabauer, City Manager CITY COUNCIL Mikey Hothi, Mayor Lisa Craig, Mayor Pro Tempore Cameron Bregman Alan Nakanishi Ramon Yepez The Honorable Rebecca Bauer -Kahan 1021 O Street, Suite 6320 Sacramento, CA 95814 CITY OF D Z CALIFORNIA May 23, 2023 Stephen Schwabauer City Manager Olivia Nashed City Clerk Janice D. Magdich City Attorney Re: AB 460 (Bauer -Kahan) State Water Resources Control Board: Water Rights and Usage: Interim Relief: Procedures. Notice of Opposition Dear Assembly Member Bauer -Kahan: The City of Lodi writes to express our opposition to your measure, AB 460, which eliminates and weakens constitutionally -protected rights to judicial review of State Water Resources Control Board (State Water Board) actions. AB 460 would provide expansive new authority for the State Water Board to issue "interim relief orders," on its own motion or upon petition of an interested party, to apply or force such things as the Reasonable Use and Public Trust Doctrine. While the City of Lodi believes that illegal diversions are serious, AB 460 goes far beyond what is needed for the State Water Board to enforce and discourage illegal water diversions. AB 460 is not only contrary to both the State and Federal constitutions, it will also lead to under -informed water management actions that will result in worse outcomes for the resources that the bill purports to protect. The City of Lodi is concerned that this bill encompasses far more than alleged illegal diversions of surface water or violations of State Water Board orders. The bill proposes to authorize interim relief orders and limit judicial review of numerous constitutional, statutory and common law doctrines that, by definition, require robust evidentiary records and full judicial review. The City of Lodi is also concerned that this bill provides unprecedented discretion to the State Water Board because it allows the board to immediately issue an interim relief order before holding a hearing if it is making certain findings. This is unnecessary given that the State Water Board already has the authority to act swiftly to address, for example, violations of curtailment regulations. Water rights are property rights, and as such, may not be infringed without due process of law. As written, AB 460 deprives diverters of due process. Under this scenario, the State Water Board may issue an interim relief order without notification or opportunity to be heard until after the fact. Unpredictable and unreliable water supply slows or blocks needed housing projects. Increased uncertainty prevents water agencies from being able to meet demands of new development, including affordable housing. For these reasons, the City of Lodi respectfully opposes your measure. Mikey Hothi Mikey Hothi, Mayor City of Lodi cc: Senator Susan Talamantes Eggman Assemblymember Carlos Villapudua City Hall, 221 W. Pine Street, Lodi, CA 95240 • (209) 333-6702 / Fax (209) 333-6807 • Lodi.gov • cityclerk@lodi.gov � , 0-a��' IQ LEGISLATIVE INFORMATION Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites AB -460 State Water Resources Control Board: water rights and usage: interim relief: procedures. (2c SHARE THIS: ASSEMBLY BILL Date Published: 05/19/2023 04:00 AM AMENDED IN ASSEMBLY MAY 18, 2023 AMENDED IN ASSEMBLY APRIL 26, 2023 AMENDED IN ASSEMBLY MARCH 30, 2023 CALIFORNIA LEGISLATURE— 2023-2024 REGULAR SESSION Introduced by Assembly Member Bauer -Kahan (Principal coauthor: Assembly Member Friedman) February 06, 2023 460 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: 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. (4) The California Constitution requires the reasonable and beneficial use of water and al'OeatiOn Of Watel' 1'e50d1'ee5 and to proteet the publie 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. Existiig law reqdires that the owner of aly dam allow stiffiemelt wate- elt all tilles to Pass th-otigh a fishway., o- il tile absediee of a fishway, allow stiff e eiit water to pass avenr aratind, or through the dam, to keep n good eend t ail a ly fish th8t may be planted or exist below the darn, as speeified. This bill would authorize the board to issue, on its own motion or upon the petition of an interested party, an interim relief order 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 $2,500 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. The bill would make these provisions operative on January 1, 2025. (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 $1,500 for each day in which the violation occurs, $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. Vote: majority Appropriation: no Fiscal Commttee: yes Local Program: yes 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, 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, 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, Section 1119, or Article 4 (commencing with Section 1845) of Chapter 12 of Part 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. 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 to a diverter or user of water in adjudicative proceedings to apply or enforce any of the following with respect to water held under any basis of right: (1) Section 2 of Article X of the California Constitution. (2) Water quality objectives or principles and guidelines adopted under subdivision (b) of Section 13142, Section 13149, Section 13170, or Section 13241. (3) 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. f5) (4) Any provision in Division 1 (commencing with Section 100), this division, or Article 7 (commencing with Section 13550) of Chapter 7 of Division 7. (6)Seetion 5937 of the Fish and Garne 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) 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 so long as 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. (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) On or before December 31, 2024, the board shall adopt regulations providing for a formal process for which any hearing pursuant to this section is to be governed. The regulations may include any of the following: (1) Whether to 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. (2) Whether to consider oral or written legal argument that is provided in a timely manner by the parties. (3) A schedule by which the board will accept filed declarations, exhibits, and written arguments prior to a hearing pursuant to this section. (4) Any other evidentiary or procedural rules the board deems necessary and appropriate to carry out this section. (h) If the board issues an interim relief order pursuant to subdivision (e), 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. (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. (j) Any party aggrieved by an interim relief order may, not later than 15 days after the hearing provided for in subdivision (f), file a petition for a writ of mandate for review of the decision or order. Reconsideration before the board shall not be an administrative remedy that is required to be exhausted before filing a petition for writ of mandate. (k) Section 1094.5 of the Code of Civil Procedure shall govern judicial proceedings pursuant to subdivision (j). 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. (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. 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. If a hearing is requested, the board shall establish the hearing date within 15 calendar days and shall not review or revise the interim relief order until the hearing occurs. 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) Two thousand five hundred dollars ($2,500) 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. 1119.6. This chapter shall become operative on January 1, 2025. 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. 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. 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. (c) Section 1094.5 of the Code of Civil Procedure shall govern judicial proceedings under this section. 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 paragraph (2) in an amount not to exceed the sum of the following: (A) One thousand five hundred dollars ($1,500) for each day in which the violation occurs. (B) Ten thousand dollars ($10,000) for each day in which the violation occurs. (C) Two thousand five hundred dollars ($2,500) for each acre-foot of water diverted or used that amounted to the violation. (2) (A) A term or condition of a permit, license, certificate, or registration issued under this division. (B) A regulation or order adopted by the board. (b) Civil liability may be imposed pursuant to subparagraph (B) or (C) of paragraph (1) of subdivision (a) 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 pursuant to subparagraph (A) of paragraph (1) of subdivision (a) 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.