SUBJECT: PROPOSED RESOLUTION RELATED TO THE DELEGATION OF AUTHORITY TO THE BOARD MEMBERS INDIVIDUALLY; TO THE EXECUTIVE DIRECTOR AND TO THE CHIEF, DIVISION OF WATER RIGHTS

DISCUSSION: Resolution 97-006 delegates authority to the State Water Resources Control Board Members individually, the Executive Director and to the Chief of the Division of Water Rights to act on several matters related to the administration of water rights in California. The attached resolution amends and updates the delegation. The changes are:

1. removal of the delegation to Board Members individually to seek Attorney General action on unlawful diversions because an identical delegation is provided to the Executive Director;
2. update in the resolution number for the water right order related to fully appropriated streams;
3. update delegations to the Chief of the Division of Water Rights to recent changes to the water code related to small projects (under 200 acre feet or 3 cubic feet per second) to expedite the processing of these applications;
4. add delegation to the Chief of the Division of Water Rights related to requesting information from applicants and protestants to expedite the processing of applications;
5. add delegation to the Chief of the Division of Water Rights related to the approval of measuring devices required as terms of water right permits or licenses; and,
6. add delegation to the Chief of the Division of Water Rights to issue complaints to any person on whom Administrative Civil Liability (ACL) may be imposed pursuant to Section 1055.

FISCAL IMPACT: None: Staff activities to support the administration of water rights is within budgeted resources.

REGIONAL BOARD IMPACT: None

STAFF RECOMMENDATION: Staff recommends adoption of the proposed resolution.

WHEREAS:

1. Board Members individually; the Executive Director; and the Chief, Division of Water Rights, have been delegated authority to act for the State Water Resources Control Board (SWRCB) as specified in the delegation document approved by Resolution No..97-006.

2. To promote efficiency in administering the water right program, authority to act for the SWRCB should be delegated to Board Members individually; to the Executive Director; and to the Chief, Division of Water Rights as shown in the attached delegation document.

THEREFORE BE IT RESOLVED:

1. That Resolution No. 97-006 is revoked.

2. That the SWRCB delegates authority to the Board Members individually; to the Executive Director; and to the Chief, Division of Water Rights, as set forth in the attached delegation document.

3. That the Chief, Division of Water Rights, is instructed to maintain the delegation document, including but not limited to providing for inclusion therein, as appendices, redelegation memoranda and subsequent resolutions which add to, amend, or revoke the authorities identified therein.

4. That the Chief, Division of Water Rights, is directed to present the delegation document for SWRCB review on an annual basis.

The undersigned, Administrative Assistant to the SWRCB, does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on April 29, 1999.
_____________________________________
Maureen Marché
Administrative Assistant to the Board

1.0 DELEGATIONS TO BOARD MEMBERS INDIVIDUALLY
1.1 Authorize or decline to authorize issuance or renewal of a temporary water right permit pursuant to all provisions of Chapter 6.5 of Part 2 of Division 2 of the Water Code. This delegation includes the authority to:
a. Hold a hearing on any application made pursuant to Chapter 6.5 of Part 2 of Division 2 of the Water Code.
b. Make the findings which are required by Chapter 6.5 as conditions precedent to the issuance or renewal of a temporary permit.
c. Make any findings required by the California Environmental Quality Act (Public Resources Code Section 21000 et seq.).

1.2 To request the Attorney General to institute appropriate proceedings in the superior court against unlawful diversion or use of water pursuant to Water Code Section 1052 or to commence litigation pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.); provided that the request to the Attorney General contain findings, including a finding that delay until the convening of a Board meeting could result in irreparable injury, made by the Board Member supporting his or her action in making the request, such findings to be based on all available relevant information and further provided that the Board Member shall report to the Board, at its next meeting the reasons upon which the decision to request the institution of such proceedings was based.

1.3 Authorize or decline to authorize issuance or renewal of a temporary urgency change pursuant to all provisions of Chapter 6.6 of Part 2 of division 2 of the Water Code. This delegation includes the authority to:
a. Hold a hearing on any petition made pursuant to Chapter 6.6 of Part 2 of Division 2 of the Water Code.
b. Make the findings which are required by Chapter 6.6 as conditions precedent to the issuance or renewal of a temporary change order.
c. Make any findings required by the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) as conditions precedent to the issuance or renewal of a temporary change order.

2.0 DELEGATIONS TO THE EXECUTIVE DIRECTOR

2.1 Apportion the Board's expenses against the parties in court reference and statutory adjudication proceedings and take steps necessary to ensure their collection in accordance with Water Code Section 2000, et seq. and 2500, et seq.

2.2 Request the Attorney General to institute appropriate proceedings in the superior court against unlawful diversion or use of water pursuant to Water Code Section 1052 or to commence litigation pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.); provided that the request to the Attorney General contain findings, including a finding that delay until the convening of a Board meeting could result in irreparable injury, made by the Executive Director supporting his or her action in making the request, such findings to be based on all available relevant information and further provided that the Executive Director shall report to the Board, at its next meeting, the reasons upon which the decision to request the institution of such proceedings was based. This authority may be redelegated to the Chief, Division of Water Rights.

2.3 Set aside an SWRCB decision or order, in whole or in part, as commanded by a peremptory writ of mandate issued to the SWRCB.

2.4 Amend, modify, or revoke any permit, license, certificate, decision, or order if an appellate court opinion published in the official reports establishes that the SWRCB has a ministerial duty to do so.

3.0 DELEGATIONS TO THE CHIEF, DIVISION OF WATER RIGHTS

3.1 General Administration

3.1.1 Unless otherwise authorized herein, the authorities herein delegated to the Chief, Division of Water Rights, may not be redelegated; provided that the Chief, Division of Water Rights, may delegate to a senior member of the Division staff any or all of the authorities delegated herein, to be exercised only in the absence of the Chief, Division of Water Rights.

3.1.2 Prepare and sign all correspondence pertaining to the engineering and other technical functions of the Division of Water Rights. This authority may be redelegated.

3.1.3 Have custody of all records, documents, and files (without limitation) filed or lodged with the Division of Water Rights and certify that copies thereof are true. This authority may be redelegated.

3.1.4 Issue subpoenas for the attendance of witnesses and the introduction of evidence before the Board with respect to all proceedings for which the Division of Water Rights has program responsibility. This authority may be redelegated.

3.1.5 The authority herein delegated to prepare a document includes the authority to direct preparation thereof. This authority may be redelegated.

3.1.6 Pursuant to Water Code Section 1124, amend or modify a decision or order to correct any obvious typographical or clerical error or oversight. This authority may be redelegated to the Assistant Division Chief level.

3.1.7 Enumeration of delegated authorities in this document shall not be interpreted as revoking authorities delegated, or hereafter delegated, to the Division Chief by Board decision, order, or resolution, arising from a specific proceeding.

3.1.8 In exercising the authority herein delegated, the Division Chief is directed, without restricting the authority specified, to bring the following matters to the attention of the members of the Board at workshop or by other appropriate communication:

3.1.8.1 Matters of a unique or unusual nature;

3.1.8.2 Matters which appear to depart from the policies of the Board;

3.1.8.3 Matters involving significant policy questions;

3.1.8.4 Highly controversial matters;

3.1.8.5 Matters which involve a substantial risk of litigation;

3.1.8.6 Issuance of preliminary cease and desist orders;

3.1.8.7 Any matter which a Board Member requests to be brought to the attention of the Board, and

3.1.8.8 Any matter which, in the judgment of the Division Chief, should be brought to the attention of the Board.

3.2 Appropriation of Water

3.2.1 Prepare and sign orders canceling or revoking an application, permit, or license to appropriate water, under any of the following circumstances:

3.2.1.1 When requested by the applicant, permittee, or licensee, as the case may be. This authority may be redelegated.

3.2.1.2 When the application is premature as specified in Water Code Section 1527.5. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.3 When the application is defective or incomplete and has not been perfected within the time allowed for that purpose and no request for extension of time is filed. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.4 When the applicant fails to submit complete or adequate information pursuant to Government Code Section 65956. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.5 When fees have not been paid within the time required by law. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.6 When the applicant fails to file an affidavit of posting or publication of notice as required by law. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.7 After notice of revocation pursuant to Water Code Sections 1410 and 1675 has been sent to the permittee or licensee and no request for hearing has been received. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.8 After proceedings conducted pursuant to Water Code Sections 1345-1348 and 1704.1-1704.4 when no party has requested a hearing. This authority may be redelegated to the Assistant Division Chief level.

3.2.1.9 When the stream has been declared fully appropriated in accordance with Water Code Section 1206(a), SWRCB Order WR 89-25 98-08, and any orders which supercede or modify Order WR 89-25 98-08. This authority may be redelegated to the Assistant Division Chief level.

3.2.2 Request additional information from an applicant pursuant to Water Code sections 1260, 1275, and 1334 and cancel the application pursuant to section 1335, if sufficient information is not provided.

3.2.3 Request additional information from a protestant pursuant to Water Code sections 1332 and 1334 and cancel the protest pursuant to section 1335 if sufficient information is not provided.

3.2.4 Prepare and sign notices of applications to appropriate water. This authority may be redelegated.

3.2.5 Prepare and sign certificates verifying stockpond water rights and correspondence required to administer properly and expeditiously the stockpond water right program. This authority may be redelegated.

3.2.6 Approve stipulations of parties to proceedings in lieu of hearing. This authority may be redelegated.

3.2.7 Upon receipt from the applicant of a request for an extension of time to complete an application as required by Section 681 of Title 23, California Code of Regulations and findings that good cause has been shown, grant time to applicants within which to complete applications to appropriate water. This authority may be redelegated.

3.2.8 Upon finding that good cause has been shown, extend time for filing protests and answers to protests. This authority may be redelegated.

3.2.9 Approve petitions to correct the description of the point of diversion, place of use, or name of source when there is to be no physical change in works already constructed or no change in the intent of the applicant to locate proposed works or use water, and no one could have been misled by the original description. This authority may be redelegated.

3.2.10 Prepare and sign licenses when the terms and conditions have been accepted by the permittee and approve necessary extensions of time and corrections in point of diversion, purpose of use, place of use, or name of source so that the permit may conform to the license being issued. This authority may be redelegated.

3.2.11 Issue separate permits or licenses to replace an existing permit or license when the place of use has been divided into two or more ownerships. Revoke the existing permit or license provided no objection is received from any of the owners. This authority may be redelegated.

3.2.12 Issue permits and change orders for projects when no protests are outstanding and where the Division Chief determines that there is unappropriated water available to supply the applicant, or when no objections were received to proposed Board action resulting from investigation conducted under Water Code Sections 1211, 1345-1348, or 1704.1-1704.4. This authority may be redelegated to the Assistant Division Chief level.

3.2.13 Approve permit extensions for up to a total of ten years time if requirements of the Water Code and Title 23 of the California Code of Regulations for considering petitions for extensions of time are met; if there are no competing projects that would be adversely affected; and if there are no outstanding protests. This authority may be redelegated to the Assistant Division Chief level.

3.2.14 Prepare and sign other permit extensions if no Board Member objects after review at a workshop or by other appropriate communication. This authority may be redelegated.

3.2.15 Approve proposed temporary changes due to a transfer of water or water rights pursuant to Water Code Sections 1725 through 1732 where the Division Chief determines that: (1) the proposed temporary change would not injure any legal user of water; (2) the proposed change would not unreasonably affect fish, wildlife, or other instream beneficial uses; and (3) the petitioner has exercised due diligence in petitioning for the proposed temporary change.

3.2.16 Approve proposed long-term transfers of water or water rights involving a change of point of diversion, place of use, or purpose of use pursuant to Water Code Sections 1735 through 1737, following notice of the proposed transfer, where no interested party requests a hearing and where the Division Chief determines that a proposed transfer would not result in substantial injury to any legal user of water and would not unreasonably affect fish, wildlife, or other instream beneficial uses.

3.2.17 Issue permits, change orders, and extension orders after Board decision or order. This authority may be redelegated to the Assistant Division Chief level.

3.2.18 Condition permits, time extensions, and change orders to protect public trust uses in conformance with the standard of reasonableness contained in Article X, Section 2, of the California Constitution, when no protests are outstanding, or when no objections are received to proposed Board actions. This authority may be redelegated to the Assistant Division Chief level.

3.2.19 Reject protests which do not substantially comply with the requirements of the Water Code or Title 23 of the California Code of Regulations. This authority may be redelegated.

3.2.20 Issue certificates of registration for small domestic use upon the satisfactory filing of a registration form in accordance with Water Code Section 1228.3. This authority may be redelegated.

3.2.21 Dismiss complaints filed pursuant to Title 23, California Code of Regulations Sections 820 and 856 where the complainant files an incomplete complaint according to Section 820, the complainant does not show good cause for the Board staff to investigate an allegation of misuse of water according to Section 856(1), the Division of Water Rights staff determines that no violation or misuse of water has occurred, the alleged violation or misuse of water which forms the basis of the complaint has been remedied, or the Board declines to exercise its discretion to investigate or prosecute an allegation that a violation has occurred.

3.2.22 Approve proposed temporary permits and temporary urgency changes pursuant to Water Code Sections 1425-1431 and 1435-1442 where no objections are outstanding and where the Division Chief finds that: (1) there is an urgent need for the proposed diversion and use or change, (2) the proposed diversion and use or change may be made without injury to any lawful user of water, (3) the proposed diversion and use or change may be made without unreasonable effect upon fish, wildlife, or other instream beneficial uses, and (4) the proposed diversion and use or change is in the public interest.

3.2.23 Accept, approve, or reject (a) Urban Water Management Programs, (b) water conservation plans, (c) irrigation system evaluations, or (d) other similar conservation plans or programs required as a condition of a permit or license to appropriate water or an enforcement order issued by the SWRCB. This authority may be redelegated.

3.2.24 Accept, approve, or reject measuring devices set forth as requirements in water right permits or licenses.

3.3 Determination of Rights

3.3.1 Prepare, sign, and cause to be published and recorded notices of pendency of adjudication proceedings pursuant to Water Code Sections 2526 and 2529. This authority may be redelegated.

3.3.2 Prepare and sign notices of field investigation in adjudication proceedings pursuant to Section 2551 of the Water Code. This authority may be redelegated.

3.3.3 Extend the time in which proofs of claim may be filed in adjudication proceedings pursuant to Division 2, Part 3, Chapter 3, Articles 3 and 4 of the Water code. This authority may be redelegated.

3.3.4 Prepare and sign notices setting time and place for filing objections to the report and inspection of proofs of claim and evidence pursuant to Water Code Sections 2604 and 2625. This authority may be redelegated.

3.3.5 Prepare and circulate, pursuant to Water Code Sections 2600 and 2604, reports related to statutory adjudications.

3.3.6 Prepare and announce draft reports of referee in accordance with Water Code Sections 2013, 2014, and 2015.

3.3.7 Execute agreements with landowners for trial distribution of water in the Napa Valley. This authority may be redelegated.

3.3.8 Appoint a watermaster to supervise trial distribution of water in the Napa Valley.

3.3.9 Perform the following duties pursuant to "Order of Appointment of California State Water Resources Control Board as Special Master", issued by the United States District Court District of Nevada, on April 9, 1990, in United States of America v. Walker River Irrigation District, In Equity No. C-125 ("the Walker River Action"):

3.3.9.1 Accept applications to change point of diversion, manner of use, or place of use of water in the exercise in California of water rights identified in the decree in the Walker River Action. This authority may be redelegated to the Assistant Division Chief level.

3.3.9.2 Process such applications in the manner required by the Order of Appointment. Processing such applications shall include publishing and mailing notice, accepting protests, field investigation, preparing and announcing the draft report of Special Master, and accepting objections to the draft report. This authority may be redelegated to the Assistant Division Chief level.

3.3.9.3 Following final action by the Board to approve or reject the change application, prepare a statement of total expense incurred by the Board in conducting the proceeding, together with an equitable apportionment of such total expense among the parties to the proceeding. This authority may be redelegated to the Assistant Division Chief level.

3.3.9.4 Prepare, announce, serve, and file the Report of Special Master, including therein the statement of total expense and the equitable apportionment thereof.

3.3.9.5 In connection with judicial review of the Report of Special Master, prepare and transmit to the court a certified copy of the record of proceeding.

3.4 Enforcement of Water Rights

3.4.1 Issue preliminary cease and desist orders pursuant to Water Code Section 1831, when both of the following circumstances exist:

3.4.1.1 No hearing is requested, following notice of the proposed action;

3.4.1.2 No member of the Board objects following review in accordance with Section 3.1.8.6 above.

3.4.2 Issue a complaint to any person on whom administrative civil liability may be imposed pursuant to section 1055.

3.5 California Environmental Quality Act

3.5.1 Following conclusion of the public availability and comment period, when such period is required:

3.5.1.1 Prepare, sign, and file all notices, certifications, and environmental documents prepared pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.), with the Secretary of the Resources Agency, the State Clearinghouse, and other agencies, as appropriate, for all projects carried out or approved by the Board in connection with the administration of the water right program. Such authority shall be exercised in conformity with regulations of the Secretary of the Resources Agency and rules of the Board. This authority may be redelegated.

3.5.2 Upon finding that good cause has been shown, extend time for completing environmental documents. This authority may be redelegated to the Assistant Division Chief level.

3.6 Certification of Water Right

3.6.1 Certify that:
(a) The Board has issued a water right permit for the appropriation of water for the operation of a hydroelectric facility; or
(b) That, in the opinion of the Board, the producer possesses riparian or other water rights which authorize the operation of a hydroelectric facility in response to a request for certification made pursuant to Public Resources Code Section 26013 or Public Utilities Code Section 2821.