Code Section Group

Water Code - WAT

DIVISION 2. WATER [1000 - 5976]

  ( Division 2 enacted by Stats. 1943, Ch. 368. )

PART 2. APPROPRIATION OF WATER [1200 - 1851]

  ( Part 2 enacted by Stats. 1943, Ch. 368. )

CHAPTER 6.6. Temporary Changes [1435 - 1443.7]

  ( Heading of Chapter 6.6 amended by Stats. 2019, Ch. 678, Sec. 9. )

ARTICLE 2. Temporary Changes for Diversion to Underground Storage [1443 - 1443.7]
  ( Article 2 added by Stats. 2019, Ch. 678, Sec. 15. )

1443.
  

(a) Unless the context otherwise requires, the following definitions govern the construction of this article:

(1) “Basin” has the same meaning as defined in Section 10721.

(2) “Groundwater sustainability agency” has the same meaning as defined in Section 10721.

(3) “Local agency” has the same meaning as defined in Section 10721.

(b) This article shall not apply to diversions within the groundwater basins identified in paragraph (24) of subdivision (a) of, or subdivision (c) of, Section 10720.8.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.1.
  

(a) A groundwater sustainability agency or a local agency that is a permittee or a licensee under provisions of this division other than this article, may petition for, and the board may issue, a conditional temporary change order that authorizes the diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin under Part 2.74 (commencing with Section 10720) of Division 6, without complying with other procedures or provisions of this division, subject to all requirements of this article.

(b) Before issuing a change order pursuant to this article, the board shall make all of the following findings based upon a preponderance of the evidence:

(1) The proposed change is for diversion to underground storage for beneficial use consistent with subdivision (a).

(2) The proposed change does not increase the amount of water the petitioner is authorized to use, enlarge the authorized season of diversion, authorize diversion from a new source, or otherwise in effect initiate a new right.

(3) The proposed change may be made without injury to any other lawful user of water, including the user’s ability to meet water quality objectives. This finding may be satisfied by demonstrating both of the following:

(A) The proposed diversion to underground storage will occur only when flow in the source waterbody exceeds the claims of all known legal users who divert water downstream of the proposed point of diversion.

(B) Storage and extraction from storage in the basin under the proposed change will be subject to accounting methods and reporting requirements established by any of the following:

(i) A groundwater sustainability plan.

(ii) An interim plan.

(iii) An alternative approved pursuant to Section 10733.6.

(iv) The board, in applying conditions to the temporary change.

(4) The proposed change may be made without unreasonable effect upon fish, wildlife, or other instream beneficial uses. If the permit does not include a condition proposed by the Department of Fish and Wildlife under paragraph (2) of subdivision (c) of Section 1443.2, the board shall include in the findings an explanation of why the condition is not included.

(5) The proposed change is in the public interest, including findings to support change order conditions imposed to ensure that the water is diverted and used in the public interest, without injury to any lawful user of water, and without unreasonable effect upon fish, wildlife, and other instream beneficial uses.

(6) If there is an adopted groundwater sustainability plan, an interim plan, or an alternative under Section 10733.6 for the basin, the proposed diversion to underground storage is consistent with that plan or alternative.

(c) The board may delegate to any officer or employee of the board all or any of its functions under this article, as provided in Section 7.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.2.
  

(a) The petition for a temporary change order shall be completed in accordance with the rules of the board that specify the information and maps to be included in a petition for change.

(b) (1) A petitioner for a change order shall pay a fee calculated in accordance with the provisions of Chapter 8 (commencing with Section 1525).

(2) Consistent with Section 3 of Article XIII A of the California Constitution and the board’s authority to set fees to promote the conservation and utilization of water resources in the public interest, the board may adopt reduced fees under Chapter 8 (commencing with Section 1525) for applications, petitions, and change orders under this article.

(c) In addition to subdivisions (a) and (b), a petition shall include all of the following:

(1) Evidence that the petitioner has completed any environmental review required by, or the project is exempt from, the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). To the extent funding is available, the board shall review and comment on any notice of preparation or draft environmental document for a project subject to approval under this article, and include in the board’s comments identification of any instream beneficial uses of waters of the state that may be affected by the project. This paragraph is not a limitation on the authority of the board under any other law.

(2) A notification from the Department of Fish and Wildlife that the petitioner has consulted with the Department of Fish and Wildlife at least 30 days before submission of the petition. If the Department of Fish and Wildlife determines that it needs additional time for review, it may provide for a longer consultation period, not to exceed 60 days. The notification shall include a copy of any conditions proposed by the Department of Fish and Wildlife.

(3) A proposed accounting method for storage and extraction of water diverted under the change order that is either of the following:

(A) Certified to be consistent with the groundwater sustainability plan or alternative approved pursuant to Section 10733.6 by the groundwater sustainability agency for the basin where the water is proposed to be stored or the local agency responsible for implementing the approved alternative.

(B) If there is no applicable groundwater sustainability plan or alternative approved pursuant to Section 10733.6, adequate to demonstrate beneficial use of water under the proposed change order and not inconsistent with the department’s standards in Section 356.2 of Title 23 of the California Code of Regulations.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.3.
  

(a) As soon as practicable after the receipt of a petition for a temporary change order, the board shall issue and deliver to the petitioner a notice of the petition and a list of persons who, in the judgment of the board, could be adversely affected by the temporary change. The board shall post the notice to its internet website within 10 days of issuing the notice to the petitioner.

(b) The petitioner shall provide notice by registered or electronic mail to each person on the list of interested persons provided by the board and the list of interested persons maintained by any groundwater sustainability agency or local agency for the basin where the water is proposed to be stored. The petitioner shall provide proof of notice to the board.

(c) Any interested person may file an objection to the temporary diversion and use with the board within 30 days of the mailing of the notice by the petitioner. A person filing an objection shall send a copy to the applicant.

(d) The board shall consider an objection, and may hold a hearing on the objection after notice to all interested persons, before acting upon a petition for a temporary change order.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.4.
  

The board shall supervise diversion and use of water under a change order issued under this article for the protection of all lawful users of water and instream beneficial uses and for compliance with change order conditions. The change order may require a person who extracts water stored under the change order to comply with regulatory and permitting requirements for groundwater extraction set by the groundwater sustainability plan or alternative approved pursuant to Section 10733.6 for the basin.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.5.
  

A change order issued under this article shall not result in the creation of a vested right, even of a temporary nature. The change order is subject, at all times, to modification or revocation at the discretion of the board, after the permittee or licensee has adequate notice and an adequate opportunity to be heard concerning any proposed modification or revocation. The authorization to divert and use water under the change order shall automatically expire five years after the authorization takes effect, unless an earlier date is specified or the temporary change order is revoked, and shall be junior in priority to any subsequent appropriation not subject to this chapter. The five-year period does not include any time required for monitoring, reporting, or mitigation before or after the authorization to divert or use water under the change order. The five-year period is a limitation on the authorization to divert and not a limitation on the authorization for beneficial use of the water diverted to underground storage.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.6.
  

The board may renew a change order issued under this article if the board, in its judgment, concludes that the petitioner has exercised due diligence in applying for a change pursuant to provisions of this division, other than this chapter, and in pursuing that petition once it is filed. The board shall process a request for a renewal of a change order issued under this article pursuant to this article. The board may request the petitioner to file maps, drawings, or other data furnished with the original petition for the change order. Each renewal of a change order issued under this article shall be valid for a period not to exceed five years from the date of renewal.

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

1443.7.
  

This article does not apply to any permittee or licensee petitioning for a temporary change pursuant to Chapter 10.5 (commencing with Section 1725).

(Added by Stats. 2019, Ch. 678, Sec. 15. (AB 658) Effective January 1, 2020.)

WATWater Code - WAT2