ARTICLE 4. Beneficial Use [1240 - 1244]
( Article 4 enacted by Stats. 1943, Ch. 368. )
The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose the right ceases.
(Enacted by Stats. 1943, Ch. 368.)
If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.
(Amended by Stats. 2011, Ch. 579, Sec. 8. (AB 964) Effective January 1, 2012.)
If water appropriated for irrigation purposes is not used by reason of compliance with crop control or soil conservation contracts with the United States, and in other cases of hardship as the board may by rule prescribe, the five-year forfeiture period applicable to water appropriated pursuant to the Water Commission Act or this code, and the forfeiture period applicable to water appropriated prior to December 19, 1914, shall be extended by an additional period of not more than 10 years or the duration of any crop control or soil conservation contracts with the United States if less than 10 years.
(Amended by Stats. 2010, Ch. 288, Sec. 12. (SB 1169) Effective January 1, 2011.)
The storing of water underground, including the diversion of streams and the flowing of water on lands necessary to the accomplishment of such storage, constitutes a beneficial use of water if the water so stored is thereafter applied to the beneficial purposes for which the appropriation for storage was made.
(Enacted by Stats. 1943, Ch. 368.)
The diversion of floodflows for groundwater recharge shall not require an appropriative water right if all of the following conditions are met:
(a) (1) A local or regional agency that has adopted a local plan of flood control pursuant to Section 8201 or has considered flood risk as part of its most recently adopted general plan has given notice via its internet website, electronic distribution list, emergency notification service, or another means of public notice, that flows downstream of the point of diversion are 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) Where a waterbody is subject to a defined flood stage, flows in excess of flood stage where actions are necessary to avoid threats to human health and safety.
(B) (i) Except as provided in clause (ii), where a waterbody is not subject to a defined flood stage, surface water escaped from or is 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 in excess of the maximum design capacity of a flood control project, where such a 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) Where 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.
(3) As used in this subdivision, “imminent” means a high degree of confidence that a condition will begin in the immediate future.
(b) 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 diversion.
(c) 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.
(C) An agricultural coalition charged with implementation of the Irrigated Lands Regulatory Program.
(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) 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.
(e) 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. Such 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 shall not be 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) The person or entity making the diversion for groundwater recharge does not claim any water right based on that diversion and recharge.
(g) (1) The person or entity making the
diversion for groundwater recharge files all of the following with the board and with any applicable groundwater sustainability agency, as defined in Section 10721, for the basin:
(A) A notice that provides the information specified in Subparagraphs (A) through (C), inclusive, of paragraph (2), 48 hours before whenever feasible, and in no event later than 48 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.
(2) The preliminary and final reports shall do all of the following:
(A) Identify the person or 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 the time 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) This section shall only apply to diversions commenced before January 1, 2029.
(Added by Stats. 2023, Ch. 51, Sec. 25. (SB 122) Effective July 10, 2023.)
(a) The board shall post on its internet website all reports received pursuant to Section 1242.1.
(b) On an annual basis, until January 1, 2029, the board shall compile information on the reports it receives pursuant to subdivision (g) of Section 1242.1 to identify the number of projects, estimated amount of water diverted and recharged, and locations of recharge projects implemented under this section and post this information on its internet website. The board may include recommendations to increase the amount of water diverted for recharge while protecting groundwater quality, public safety, and fish and wildlife resources in this annual report.
(Added by Stats. 2023, Ch. 51, Sec. 26. (SB 122) Effective July 10, 2023.)
(a) The Legislature finds and declares as follows:
(1) California’s central valley has one of the highest flood risks in the United States. Recognizing this risk and in response to the Court of Appeal decision in Paterno v. State of California (2003) 113 Cal. App.4th 998, in 2007, the Legislature enacted the Central Valley Flood Protection Act of 2008, which along with other provisions requires the projected impacts of climate change on the State Plan of Flood Control to be included the Central Valley Flood Protection Plan and each five-year update to the Central Valley Flood Protection Plan.
(2) According to the 2022 Update of the Central Valley Flood Protection Plan, by 2072,
climate change is predicted to increase peak floodflows up to five times in the central valley compared to past recorded events, and the anticipated peak flows by 2072 will only exacerbate this risk unless urgent action is taken. Climate change science predicts that atmospheric rivers will become stronger and wetter, increasing their potential to cause catastrophic events that could overwhelm many parts of the current flood system, if improvements and other strategies are not implemented.
(3) The Legislature enacts Section 1242.1, as applied in the Sacramento and San Joaquin watersheds, with the intention of adapting the State Plan of Flood Control to continuing climate change with a reasonable plan for quickly reducing the level of floodflows by diverting water, where feasible, to lands adjacent to watercourses and state-federal levees for recharging groundwater.
(4) Given
rapidly changing hydrologic conditions, Section 1242.1 establishes a reasonable plan for reducing risk of flood damages to lands within the State Plan of Flood Control. Risk of flooding may remain and may be incidental to the actions authorized by Section 1242.1, but the state is acting to reduce that risk.
(b) The state shall not be liable for flood damages related to actions authorized by Section 1242.1.
(Added by Stats. 2023, Ch. 51, Sec. 27. (SB 122) Effective July 10, 2023.)
The board, subject to the provisions of Section 100 and whenever it is in the public interest, may approve appropriation by storage of water to be released for the purpose of protecting or enhancing the quality of other waters which are put to beneficial uses.
(Added by Stats. 1969, Ch. 482.)
(a) The use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water. In determining the amount of water available for appropriation for other beneficial uses, the board shall take into account, when it is in the public interest, the amounts of water required for recreation and the preservation and enhancement of fish and wildlife resources.
(b) The board shall notify the Department of Fish and Wildlife of an application for a permit to appropriate water. The Department of Fish and Wildlife shall recommend the amounts of water, if any, required for the preservation and enhancement of fish and wildlife resources and shall
report its findings to the board.
(c) This section does not affect riparian rights.
(Amended by Stats. 2015, Ch. 683, Sec. 51. (SB 798) Effective January 1, 2016.)
In determining the amount of water available for appropriation, the board shall take into account, whenever it is in the public interest, the amounts of water needed to remain in the source for protection of beneficial uses, including any uses specified to be protected in any relevant water quality control plan established pursuant to Division 7 (commencing with Section 13000) of this code.
This section shall not be construed to affect riparian rights.
(Added by Stats. 1969, Ch. 482.)
The sale, lease, exchange, or transfer of water or water rights, in itself, shall not constitute evidence of waste or unreasonable use, unreasonable method of use, or unreasonable method of diversion and shall not affect any determination of forfeiture applicable to water appropriated pursuant to the Water Commmission Act or this code or water appropriated prior to December 19, 1914.
This section does not constitute a change in, but is declaratory of, existing law.
(Added by Stats. 1980, Ch. 933, Sec. 6.)