Bill Text: CA SB1390 | 2023-2024 | Regular Session | Amended

California Senate Bill 1390 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Groundwater recharge: floodflows: diversion.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed - Dead) 2024-09-01 - Read third time. Refused passage. (Ayes 36. Noes 2. Page 7157.) [SB1390 Detail]

Download: California-2023-SB1390-Amended.html

Amended IN Assembly June 17, 2024

Amended IN Senate April 24, 2024

Amended IN Senate April 16, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 1390

Introduced by Senator Caballero
(Coauthor: Assembly Member Soria)

February 16, 2024

An act to amend Section 1242.1 of the Water Code, relating to groundwater.

LEGISLATIVE COUNSEL'S DIGEST

SB 1390, as amended, Caballero. Groundwater recharge: floodflows: diversion.

Existing law declares that all water within the state is the property of the people of the state, but the right to the use of the water may be acquired by appropriation in the manner provided by law. Existing law requires the appropriation to be for some useful or beneficial purpose. Existing law provides, however, that the diversion of floodflows for groundwater recharge does not require an appropriative water right if certain conditions are met, including that a local or regional agency that has adopted a local plan of flood control or has considered flood risks as part of its most recently adopted general plan has given notice, as provided, of imminent risk of flooding and inundation of lands, roads, or structures. Existing law defines “floodflow” for these purposes, to include circumstances in which flows would inundate ordinarily dry areas in the bed of a terminal lake to a depth that floods dairies and other ongoing agricultural activities, or areas with substantial residential, commercial, or industrial development. Existing law defines “imminent” for these purposes to mean a high degree of confidence that a condition will begin in the immediate future. Existing law also requires the person or entity making the diversion for groundwater recharge purposes to file with the State Water Resources Control Board ~~a final report~~ and any applicable groundwater sustainability agency for the basin, a notice containing specified information no later than 48 hours after initially commencing diversion of floodflows for groundwater recharge, a preliminary report no later than 14 days after initially commencing that diversion, and a final report no later than 15 days after the diversions cease. These requirements apply to diversions commenced before January 1, 2029.

This bill would extend the operation of these requirements to diversions commenced before June 1, 2032. The bill ~~would revise, recast, and~~ would, among other things, expand the conditions that are required to be met for the diversion of floodwaters for groundwater recharge that do not require an appropriative water right. The bill would expand the definition of “floodflow” to include flows that are projected by the local or regional agency to inundate ordinarily dry areas in the bed of a terminal lake, as described above. The bill would revise the definition of “imminent” to mean a high degree of confidence that a condition will begin or is projected to begin within the next 72 hours. The bill would require that a local or regional agency with the responsibility for flood management take specified actions, including making a declaration that diversion of floodflows for groundwater recharge from a delineated stretch of waterway within its jurisdiction is in accordance with one of certain enumerated plans relating to flood control or flood risk, as specified, or a county emergency operations ~~plan.~~ plan, or a local hazard mitigation plan under specified federal law. The bill would require diversions to cease no later than 90 14 days after commencing, unless they are renewed, and would authorize a local or regional agency to renew a diversion for an additional 30 14 days by notifying the board of its intention to continue diverting 15 7 days before its expiration. The bill would ~~also require the~~ require, not less than 48 hours from the projected end of flood conditions, a local or regional agency that has made a declaration authorizing flood diversions to issue a declaration when flood conditions are projected to end informing the public and diverters when diversions shall cease, as provided. The bill would further require, within 24 hours of the declaration, that agency to post the declaration and forward the declaration to all diverters that have informed the agency of diversion.

This bill would also require an entity making the diversions for groundwater recharge that is required to file the notice and the reports, including the final report, as described above, with the board and the applicable groundwater sustainability agency for the basin, to also file those documents with the agency that issued the applicable flood determination. The bill would require the final report to ~~be made by an entity and~~ contain information, if applicable, describing the forecasting models used to determine a likely imminent escape of surface water and a description of the methodology used to determine the abatement of flood conditions. The bill would further require the board to post the notice and the reports on the board’s internet website within 24 hours of receipt. The bill would require that temporary floodflow diversions be consistent with the most junior priority relative to all water rights holders in the watershed and prohibit those diversions from injuring a prior water rights holder.

Existing law imposes a condition, pursuant to the provisions described above, applicable only to diversions from water tributaries to the Sacramento-San Joaquin Delta (Delta), that the diversion of floodflows for groundwater recharge does not require an appropriative water right if water rights holders are not making releases of stored water or reoperating facilities to provide flow for the purposes of meeting water quality control plan or endangered species requirements in the Delta at the time of the diversion.
This bill would revise that condition by authorizing water to be diverted only when the Delta is in excess water conditions without restrictions, as described.

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

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

SECTION 1.

Section 1242.1 of the Water Code is amended to read:

1242.1.

The diversion of floodflows for groundwater recharge does not require an appropriative water right if all of the following conditions are met:

(a) (1) A local or regional agency with the responsibility for flood management has taken the following actions:

(A) Made a declaration that diversion of floodflows for groundwater recharge from a delineated stretch of waterway within its jurisdiction is in accordance with one of the following:

(i) An adopted local plan of flood control pursuant to Section 8201.

(ii) An applicable general plan updated within the previous eight years that considers flood risk.

(iii) A county emergency operations plan.

(iv) A local hazard mitigation plan under the federal Disaster Mitigation Act of 2000 (Public Law 106-390).

(B) Has given notice via its internet website, electronic distribution list, emergency notification service, or another means of public notice, that a delineated area within the local or regional agency’s jurisdiction is at imminent risk of flooding and inundation of land, roads, or structures.

(2) As used in this section, “floodflow” means any of the following:

(A) If a waterbody is subject to a defined flood stage, flows in excess of flood stage if actions are necessary to avoid threats to human health and safety.

(B) (i) Except as provided in clause (ii), if a waterbody is not subject to a defined flood stage, surface water escaped from, or likely to imminently escape from, a channel or waterbody causing or threatening to cause inundation of residential or commercial structures, or roads needed for emergency response. Likely imminent escape from a channel or waterbody shall be demonstrated by measured flows projected by the local or regional agency to be in excess of the maximum design capacity of a flood control project, if that project is present and the maximum design capacity is readily available information.

(ii) This subparagraph does not apply to flows that inundate wetlands, working lands, or floodplains, events that constitute a “design flood,” groundwater seepage, or waters confined to a “designated floodway.”

(C) If flows would inundate or are projected by the local or regional agency to inundate ordinarily dry areas in the bed of a terminal lake to a depth that floods dairies and other ongoing agricultural activities, or areas with substantial residential, commercial, or industrial development.

(3) As used in this subdivision, “imminent” means a high degree of confidence that a condition will begin or is projected to begin within the next ~~15 days.~~ 72 hours.

(b) ~~(1)~~The diversions cease when the flood conditions described in the public notice provided pursuant to subdivision (a) have abated to the point there is no longer a risk of flooding and inundation of land, roads, or structures downstream of the point of diversions, as determined by the local or regional agency making the diversion. Diversions shall cease no later than 90 14 days after commencing, unless they are renewed.

(c) (1) Not less than 48 hours from the projected end of flood conditions, a local or regional agency that has made a declaration authorizing flood diversions pursuant to this section shall issue a declaration when flood conditions are projected to end informing the public and diverters when diversions authorized pursuant to this section shall cease. Within 24 hours of the declaration, that agency shall post the declaration in the manner described in subparagraph (B) of paragraph (1) of subdivision (a) and forward the declaration to all diverters that have informed the agency of diversion pursuant to subdivision (h).

(2) A local or regional agency may renew a diversion pursuant to paragraph (1) for an additional 30 14 days by notifying the board of its intention to continue diverting 15 7 days before its expiration.

~~(c)~~

(d) Any water diverted is not diverted to, and will not be applied to, any of the following:

(1) Any barns, ponds, or lands where manure or waste from an animal facility that generates waste from the feeding and housing of animals for more than 45 days per year in a confined area that is not vegetated are applied.

(2) Any agricultural field that has been identified as an outlier with respect to nitrogen application by any of the following:

(A) The board.

(B) The appropriate regional board.

(3) Any area that could cause damage to critical levees, infrastructure, wastewater and drinking water systems, drinking water wells or drinking water supplies, or exacerbate the threat of flood and other health and safety concerns.

(4) Any area that has not been in active irrigated agricultural cultivation within the past three years, including grazing lands, annual grasslands, and natural habitats. This limitation does not apply to facilities already constructed for the purpose of groundwater recharge or managed wetlands.

~~(d)~~

(e) With respect to diversions from water tributaries to the Sacramento-San Joaquin Delta (Delta), water rights holders are not making releases of stored water or reoperating facilities to provide flow for the purposes of meeting water quality control plan or endangered species requirements in the Delta at the time of the diversion. Water may be diverted pursuant to this section only when the Delta is in excess water conditions without restrictions. “Excess water conditions” are determined pursuant to the Agreement between the United States of America and the State of California for Coordinated Operation of the Central Valley Project and the State Water Project, as amended. The Delta is “without restrictions” when Delta exports are not constrained by any requirements, including any requirements for the protection of water quality and endangered species. The diverter shall monitor conditions daily using the Delta Operations Summary report published on the internet website of the Department of Water Resources daily to determine whether the Delta is in excess conditions without restrictions.

~~(e)~~

(f) The diversion of floodflows for groundwater recharge uses the following as part of the diversion:

(1) Either existing diversion infrastructure or temporary pumps.

(2) Existing groundwater recharge locations, where available.

(3) No new permanent infrastructure or permanent construction.

(4) For diversions directly from rivers or streams, protective screens on temporary pump intakes to minimize the impacts of diversion to fish and other aquatic life. Those screens shall be constructed of any rigid material, perforated, woven, or slotted, that provides water passage while physically excluding fish. The screen face shall be parallel to the flow and adjacent to the water’s edge. The upstream and downstream transitions to the screen structure shall be designed and constructed to minimize eddies upstream of, in front of, and downstream of the screen, while minimizing entrainment to the degree feasible. Prior to implementing this paragraph, the Department of Fish and Wildlife shall conduct at least one public workshop to review recommended design parameters and ranges of scenarios for deployment and use of protective screens. These recommendations and any other guidelines provided by the Department of Fish and Wildlife on the implementation of this paragraph are not subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

~~(f)~~

(g) The entity making the diversion for groundwater recharge does not claim any water right based on that diversion and recharge, and any diversion pursuant to this section is not evidence in support of a subsequently filed standard water right application for the same or similar project or against modification or development of an existing appropriative water right.

~~(g)~~

(h) (1) The entity making the diversion for groundwater recharge files all of the following with the ~~board~~ board, with the agency that issued the applicable flood determination pursuant to this section, and with any applicable groundwater sustainability agency, as defined in Section 10721, for the ~~basin:~~ basin, and the board shall also post all of the following on its internet website within 24 hours of receipt:

(A) A notice that provides the information specified in subparagraphs (A) to (C), inclusive, of paragraph (2), 48 hours before whenever feasible, and in no event later than 48 24 hours after, initially commencing diversion of floodflows for groundwater recharge.

(B) A preliminary report no later than 14 days after initially commencing diversion of floodflows for groundwater recharge.

(C) A final report no later than 15 days after diversions cease. The final report shall contain information, if applicable, describing the forecasting models used to determine a likely imminent escape of surface water pursuant to subdivision (a). This description shall include any publicly available data used for these models. The final report shall also include a description of the methodology used to determine the abatement of flood conditions. Additionally, the report shall include an explanation of any diversion renewals, if applicable.

(2) The preliminary and final reports shall do all of the following:

(A) Identify the entity making the diversion for groundwater recharge.

(B) Provide the Global Positioning System (GPS) coordinates for the point of diversion, a map identifying the approximate area inundated by the floodflows, and the corresponding assessor parcel numbers.

(C) Identify when diversions of floodflows to groundwater recharge commenced, and, for final reports, when diversions ceased.

(D) Provide an estimate, as of the report’s date, of the amount of floodflows diverted for groundwater recharge.

~~(h)~~

(i) Temporary floodflow diversions pursuant to this section are consistent with the most junior priority relative to all water rights holders in the watershed and shall not injure a prior water rights holder. This section does not apply to temporary floodflow diversions that are not consistent with this requirement.

~~(i)~~

(j) The diversions are commenced before June 1, 2032. This section does not apply to diversions commenced on or after June 1, 2032.

~~(j)~~

(k) This section does not diminish or alter the authority of the board to administer or enforce water rights.

(l) The diversion of floodflows without an appropriative water right other than as authorized pursuant to this section is a trespass pursuant to Section 1052.