1. (a) Each applicant seeking water quality certification for an activity that includes, or involves construction or modification of facilities for the purpose of, producing hydroelectric power, where the activity or facilities require the issuance or amendment of a FERC license, shall pay an annual fee in accordance with this section.

   1. (2) Review in anticipation of consideration of certification shall be deemed to have been initiated when any of the following occurs or has occurred:

      1. (A) A notice of intent is filed pursuant to 18 CFR § 5.5 or 18 CFR § 16.6.
      2. (B) Consultation is initiated pursuant to 18 CFR § 4.38.
      3. (C) An application for water quality certification is filed.

   2. (3) Certification and related proceedings shall be deemed to have been completed when any of the following occurs:

      1. (A) FERC issues or denies the license or license amendment for which review in anticipation of consideration of certification was initiated.
      2. (B) FERC determines that no license, other than a license already in effect, or license amendment is required.
      3. (C) The applicant abandons the proposed activity, including withdrawal or surrender of any applicable notification of intent, FERC preliminary permit, FERC license application, or other application for FERC approval.

   3. (4) The annual fee shall be $1,000 plus $0.717 per kilowatt, based on the authorized or proposed installed generating capacity of the hydroelectric facility.

      1. (A) In the case of an application for an original, new or subsequent license, as those terms are used in Parts 4, 5 and 16 of Title 18 of the CFR, the annual fee shall be based on the installed generating capacity of the facility as proposed in the notification of intent, application for FERC license, application for certification, or existing license that is proposed for takeover or relicensing, whichever is greatest.
      2. (B) In the case of a proposed amendment to an existing FERC license, the component of the fee based on installed generating capacity shall be based on the amount by which the installed generating capacity of the hydroelectric facility would be increased by the proposed amendment.
   4. (5) If an applicant for certification has paid any deposit pursuant to subdivision (b) of section 3833 as that subdivision was in effect before January 1, 2004, the state board shall credit against the annual fee specified in paragraph (4) any portion of that deposit that was for costs incurred after June 30, 2003. If an applicant for certification was required to pay but did not pay any deposit pursuant to subdivision (b) of section 3833 as that subdivision was in effect before January 1, 2004, the annual fee shall include any unpaid deposit, less any portion of that unpaid deposit that was for costs incurred after June 30, 2003, in addition to the annual fee specified in paragraph (4).
   5. (6) If an application for certification is filed for an activity for which no annual fees have previously been imposed, the annual fee shall be due upon filing of the application for certification, and shall be paid to the state board. In all other cases, the annual fee shall become due thirty days after the California Department of Tax and Fee Administration gives notice of the fee, and shall be paid to the California Department of Tax and Fee Administration.

   6. (7) For projects where review in anticipation of consideration of certification is deemed to have been initiated pursuant to paragraph (2)(A), fees pursuant to subdivision (b) shall be paused after five (5) years, if there are no active additional information requests during that period, until a draft or final license application for the project is filed with FERC or an additional information request is issued. Once a draft or final license application for the project is filed with FERC or an additional information request is issued, annual fees for the project shall resume.

      (c)(1) The holder of any FERC license for a hydroelectric project for which water quality certification has been issued shall pay an annual fee in the amount of $100 plus $0.353 per kilowatt, based on the authorized installed generating capacity of the hydroelectric project.

   7. (2) The fee imposed under this subdivision shall not apply in the fiscal year when the FERC license is issued if an annual fee is imposed in that fiscal year pursuant to subdivision (b).

   8. (3) The annual fee imposed under this subdivision shall be due thirty days after the California Department of Tax and Fee Administration gives notice of the fee, and shall be paid to the California Department of Tax and Fee Administration.

      (d)(1) A determination by the state board that an applicant is required to pay a fee under this section or paragraph (1) of subdivision (b) of section 3833, and any determination by the state board regarding the amount of that fee, is subject to review under chapter 4 (commencing with Section 1120) of part 1 of division 2 of the Water Code. Any petition by an applicant to the state board for review shall be submitted in accordance with that chapter and article 12 (commencing with section 768) of chapter 2 of division 3 of this title.

   9. (2) If the subject of a petition for reconsideration relates to an annual fee, other than an annual fee first required to be paid pursuant to paragraph (1) of subdivision (b) of section 3833, the board's decision regarding an annual fee shall be deemed adopted on the date of assessment by the California Department of Tax and Fee Administration. The petition must be received by the board within 30 days of the date of assessment by the California Department of Tax and Fee Administration.

   (b)(1) An annual fee calculated pursuant to paragraphs (4) and (5) shall apply in each fiscal year (July 1 through June 30) during or after the year in which review in anticipation of consideration of certification is initiated as specified in paragraph (2) and until and including the fiscal year in which certification and related federal proceedings are complete as specified in paragraph (3), except as provided in paragraph (7).

Note: Authority cited: Section 13160.1, Water Code. Reference: Section 13160.1, Water Code.

History

1. New section filed 12-23-2003 as an emergency; operative 1-1-2004 (Register 2003, No. 52). Pursuant to Water Code section 13160.1 this rulemaking action remains in effect until revised by the State Water Resources Control Board.

2. Amendment of subsections (b)(4) and (c)(1) filed 10-14-2004 as an emergency; operative 10-14-2004 (Register 2004, No. 42). Pursuant to Water Code section 1530, this rulemaking action remains in effect until revised by the State Water Resources Control Board.

3. Amendment of subsections (b)(4) and (c)(1) filed 10-21-2005 as an emergency; operative 10-21-2005. Water Code section 13160.1 provides that this filing shall be deemed an emergency and shall remain in effect until revised by the State Water Resources Control Board (Register 2005, No. 42).

4. Change without regulatory effect amending subsection (b)(2)(A) filed 1-29-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 5).

5. Editorial correction of History 3 (Register 2008, No. 45).

6. Amendment of subsection (b)(3)(C), (b)(4) and (c)(1) filed 11-5-2008 as an emergency; operative 11-5-2008. Water Code section 13160.1 provides that this filing shall be deemed an emergency and shall remain in effect until revised by the State Water Resources Control Board (Register 2008, No. 45).

7. Amendment of subsections (a)(4) and (c)(1) filed 11-17-2010 as an emergency; operative 11-17-2010 (Register 2010, No. 47). Water Code section 13160.1 provides that the regulation shall be deemed an emergency and shall remain in effect until revised by the State Water Resources Control Board.

8. Amendment of subsection (b)(4) filed 10-30-2014 as an emergency; operative 10-30-2014. Water Code section 13160.1 provides that the regulation shall be deemed an emergency and shall remain in effect until revised by the State Water Resources Control Board (Register 2014, No. 44).

9. Amendment of subsections (b)(4) and (c)(1) filed 10-28-2019 as an emergency; operative 10-28-2019. Water Code section 13160.1 provides that the regulation shall be deemed an emergency and shall remain in effect until revised by the State Water Resources Control Board (Register 2019, No. 44).

10. Amendment of subsections (b)(4) and (c)(1) filed 11-9-2020 as an emergency; operative 11-9-2020 (Register 2020, No. 46). Pursuant to Water Code section 13160.1, this emergency regulation shall remain in effect until revised by the Board.

11. Amendment of subsections (b)(4) and (c)(1) filed 11-15-2021 as an emergency; operative 11-15-2021 (Register 2021, No. 47). Pursuant to Water Code section 13160.1, this emergency regulation shall remain the effect until revised by the Board.

12. Amendment of subsections (a) and (a)(3) filed 11-28-2022 as an emergency; operative 11-28-2022 (Register 2022, No. 48). Pursuant to Water Code section 13160.1, this emergency regulation shall remain in effect until revised by the Board.

13. Amendment of subsections (b)(1) and (b)(6), new subsection (b)(7) and amendment of subsections (c)(3) and (d)(2) filed 11-3-2025 as an emergency; operative 11-3-2025 (Register 2025, No. 45). Pursuant to Water Code section 13160.1, this emergency regulation shall remain in effect until revised by the Board.