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 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, 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 local hazard mitigation plan under specified federal law, and to give public notice, as specified, that a delineated area within the local or regional agencys jurisdiction is at imminent risk of flooding and inundation of land, roads, or structures. The bill would require diversions to cease no later than 30 days after the public notice is given, unless they are renewed. The bill would 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 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 boards internet website on the next business day after 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.

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 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, 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 local hazard mitigation plan under specified federal law. law, and to give public notice, as specified, that a delineated area within the local or regional agencys jurisdiction is at imminent risk of flooding and inundation of land, roads, or structures. The bill would require diversions to cease no later than 30 days after commencing, the public notice is given, unless they are renewed. The bill would 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 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 boards internet website within 24 hours of on the next business day after 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.

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 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, 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, a county emergency operations plan, or a local hazard mitigation plan under specified federal law. The bill would require diversions to cease no later than 14 30 days after commencing, unless they are renewed, and would authorize a local or regional agency to renew a diversion for an additional 14 days by notifying the board of its intention to continue diverting 7 days before its expiration. renewed. The bill would 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 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 boards 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.

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 boards 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 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 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 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 expand the conditions that are required to be met for the diversion of flood waters floodwaters for groundwater recharge that do not require an appropriative water right. The bill would require that a local or regional agency 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. The bill would require diversions to cease no later than 90 days after commencing, unless they are renewed, and would authorize a local or regional agency to renew a diversion for an additional 30 days by notifying the board of its intention to continue diverting 15 days before its expiration. The bill would also 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 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 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. plan has given notice, as provided, of imminent risk of flooding and inundation of lands, roads, or structures. 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 15 days after the diversions cease, as provided. cease. These requirements apply to diversions commenced before January 1, 2029.

This bill would extend the operation of these requirements to diversions commenced before January 1, 2034. June 1, 2032. The bill would revise, recast, and expand the conditions that are required to be met to include a requirement for the diversion of flood waters for groundwater recharge that do not require an appropriative water right. The bill would require that a local or regional agency make take specified actions, including making a declaration that its proposed 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. The bill would require diversions to cease no later than 90 days after commencing, unless they are renewed, and would authorize a local or regional agency to renew a diversion for an additional 30 days by notifying the board of its intention to continue diverting 15 days before its expiration. The bill would also 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 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 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 has adopted a local plan of flood control or has considered flood risks part of its most recently adopted general plan. Existing law also requires the person or entity making the diversion to file with the State Water Resources Control Board a final report after the diversions cease, as provided. These requirements apply to diversions commenced before January 1, 2029.

This bill would extend the operation of these requirements to diversions commenced before January 1, 2034. The bill would revise, recast, and expand the conditions that are required to be met to include a requirement that a local or regional agency make a declaration that its proposed diversion is in accordance with one of certain enumerated plans relating to flood control or flood risk, as specified, or a county emergency operations plan. The bill would also require the final report to 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.

SENATE THIRD READING

STR Bill Id:SB 1390

Author:(Caballero)

As Amended Ver:August 22, 2024

Majority vote

SUMMARY

Makes numerous changes to existing authority to temporarily divert floodflows for groundwater recharge without a water right or other permits.

Major Provisions

1. Adds a local hazard mitigation plan to the list of plans that a local or regional agency may rely upon to determine there is an imminent risk of flooding to authorize the temporary diversion of floodflows for groundwater recharge.
2. Provides that a local or regional agency must give notice that a "delineated area within its jurisdiction" (rather than "flows downstream of a point of diversion") are at imminent risk of flooding to authorize the temporary diversion of floodflows for groundwater recharge.
3. Provides that "floodflows" may include measured flows that are "projected" by a local or regional agency to be in excess of the maximum design capacity of a flood project or flows "projected" by a local or regional agency to inundate ordinarily dry areas in the bed of a terminal lake.
4. Clarifies that "imminent" means conditions that will begin or that are projected to begin within 72 hours.
5. Provides that a local or regional agency shall be responsible for determining when flood conditions have abated for purposes of ceasing the temporary diversion of floodflows for groundwater recharge.
6. Requires a local or regional agency to issue a declaration that flood conditions are projected to end at least 48 hours beforehand to inform the public and diverters. Requires a local or regional agency to notify the public and known diverters that flood conditions are abating, within 24 hours of the projected end of flood conditions. Regardless, diversions must cease no later than 30 days after notice by a local or regional agency is given.
7. Provides that floodflows may be temporarily diverted for groundwater recharge from tributaries to the Sacramento-San Joaquin Delta only when the Delta is in excess water conditions without restrictions.
8. Provides that floodflows may be temporarily diverted for groundwater recharge from tributaries to the San Joaquin River upstream of Vernalis only when the Delta is in excess water conditions without restrictions.
9. Provides that floodflows may be temporarily diverted for groundwater recharge from all other tributaries to the Delta only when the Delta is in excess conditions and either is "without restrictions" or is "with restrictions, but Delta operations are controlled only by Old and Middle River flow or San Joaquin River inflow-to-export ratio."
10. Requires a diverter exercising the authority to temporarily divert floodflows for groundwater recharge to monitor conditions daily using the Delta Operations Summary published on the Department of Water Resources' (DWR) website to determine whether the Delta is in excess conditions without restrictions.
11. Requires the State Water Resources Control Board (State Water Board) to post any report it receives from an entity that is temporarily diverting floodflows for groundwater recharge on its website the next business day following receipt of the report.
12. Provides that an entity temporarily diverting floodflows for groundwater recharge must provide an initial report to the State Water Board within 24 hours (rather than 48 hours) of commencing diversions.
13. Requires an entity's final report on the temporary diversion of floodflows for groundwater recharge to include information describing forecasting models used, a description of the methodology used to determine the abatement of flood conditions, and an explanation of any diversion renewals.

COMMENTS

Groundwater recharge is an important strategy to enhance water supply and water supply reliability in the face of climate change. This has been recognized in numerous state plans and strategies and by water agencies, nongovernmental organizations, and researchers. One manner in which groundwater recharge can be expanded is through the capture or diversion of high water flows or flood flows during wet periods such as the winters of 2017 and 2023. Capturing water during such events can be challenging if a potential diverter has not obtained the necessary permits to do so. For example, if a groundwater recharge project involves diverting surface water from a river or stream to a recharge area, a water right or permit is required. Obtaining a new water right can take a long time so, several projects in recent years have opted to seek a temporary urgency (180-day) permit to divert flood flows to groundwater recharge. The State Water Board can also issue a five-year temporary permit for groundwater recharge.

2023 Executive Orders (EO) and SB 122. To take advantage of the unexpected wet winter last year and capture high water flows for groundwater recharge, Governor Newsom issued EO N-4-23 which, among other provisions, authorized diverters to temporarily take "floodflows" off of streams and rivers for groundwater recharge without obtaining a water right, complying with the California Environmental Quality Act, and obtaining a Lake and Streambed Alteration Agreement. The authority in EO N-4-23 was modified and extended through EO N-7-23 and then codified into law with the passage of SB 122 last year. SB 122 makes various changes to the EOs, including adding a requirement that a local or regional agency must rely upon a local plan of flood control or a county general plan that considers flood risk in order for an unpermitted diversion of floodflows to occur within the agency's territory. Further, the diverted water cannot be applied to certain types of land (e.g., where manure has been applied in the previous 45 days) and the diversion must meet the following criteria:

1. Use existing diversion infrastructure or temporary pumps;
2. Use existing groundwater recharge locations;
3. Cannot use new permanent infrastructure or permanent construction; and
4. Use protective screens on temporary pumps to protect fish and other aquatic life when water is diverted directly from a river or stream. The protective screens must be constructed of any rigid material, perforated, woven, or slotted that allows water to pass while physically excluding fish. In addition, a protective screen must be parallel to the flow of water and adjacent to the water's edge and meet other specified criteria.

The State Water Board received and posted 78 reports of temporary diversion of floodflows for groundwater recharge under the authority granted by the EOs (see https://www.waterboards.ca.gov/waterrights/water_issues/programs/groundwater-recharge/). The majority of these reports indicate that diversions began the same day or within days of, the issuance of the first EO, N-4-23, on March 10, 2024 and, in many cases continued through August and even September 2023. EO N-4-23 provides in paragraph 3c that "diversions cease when the flood conditions 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" (EO N-7-23 extended the authority to divert and this restriction). Despite this requirement, it appears that many diversions under the authority granted by the EOs continued long after flood conditions had abated.

In May of this year, DWR released its Semi-Annual Groundwater Conditions report that indicates that groundwater storage in California improved for the first time since 2019. Per the report, the state achieved 4.1 million acre-feet (AF) of managed aquifer recharge water in 2023; 1.2 million AF of this was permitted by state agencies and approximately 453,000 AF occurred under the authority for the temporary diversion of floodflows for groundwater recharge authorized by EO N-4-23 and EO N-7-23. The remaining recharge occurred as a result of the wet conditions.

According to the Author

"[This bill] is a simple bill that provides clarity to current flood planning requirements and builds on the momentum of SB 122 and the Governor's [EO] issued in March of 2023. [This bill] will allow more groundwater projects to move forward during flood events by providing water agencies with information about when flood conditions begin and end by using sophisticated forecasting models to anticipate flood events, with increased accountability, public safety and water quality." The author further contends that "until statute is modified, California will be unable to make the most efficient use of flood flows, which will increasingly make up the source of water supplies in the state as the climate continues to warm."

Arguments in Support

This bill is sponsored by Sustainable Conservation (SusCon). SusCon points out that groundwater recharge is an important strategy to help respond to climate change and facilitate the implementation of the Sustainable Groundwater Management Act. By clarifying when flood conditions begin and end, recognizing the utilization of forecasting models, and increasing reporting and accountability, SusCon argues this bill "carries forward the progress of the [EO] and SB 122 by allowing more recharge projects to be completed in a safe and responsible manner."

Arguments in Opposition

The San Francisco Baykeeper opposes this bill asserting that it will "allow local agencies to freely pump water from California's already fragile river systems in a misguided effort to reclaim floodwaters for groundwater recharge. The current science continues to indicate aquatic ecosystems in California's rivers and the San Francisco Bay estuary, their fish, wildlife, and water quality, and the people that depend on them are in desperate need of more flows, not less."

The Turlock Irrigation District, Modesto Irrigation District, and South San Joaquin Irrigation District (Irrigation Districts) have taken an "oppose unless amended" position on this bill arguing that the provisions restricting diversions of floodwaters for groundwater recharge based on Delta conditions (see #7 – #9 under "Major Provisions") are too restrictive and "significantly limits current law." Furthermore, the Irrigation Districts contend that these same provisions will limit opportunities for localities "to take crucial steps to divert water that might flood their communities." Finally, the Irrigation Districts maintain that this bill "is counter to the state's goal of putting excess water to beneficial use when available."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

The State Water Board reports General Fund costs of $250,000 in one-time contracting costs to update data management systems to incorporate increased information required by this bill.

VOTES

SENATE FLOOR: 37-0-3

YES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Allen, Archuleta, Newman

ASM WATER, PARKS, AND WILDLIFE: 13-0-2

YES: Papan, Addis, Alanis, Alvarez, Bennett, Gallagher, Davies, Garcia, Hart, Luz Rivas, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Mathis, Bonta

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: August 22, 2024

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0004564

SENATE THIRD READING

STR Bill Id:SB 1390

Author:(Caballero)

As Amended Ver:August 19, 2024

Majority vote

SUMMARY

Makes numerous changes to existing authority to temporarily divert floodflows for groundwater recharge without a water right or other permits.

Major Provisions

1. Adds a local hazard mitigation plan to the list of plans that a local or regional agency may rely upon to determine there is an imminent risk of flooding to authorize the temporary diversion of floodflows for groundwater recharge.
2. Provides that a local or regional agency must give notice that a "delineated area within its jurisdiction" (rather than “flows downstream of a point of diversion”) are at imminent risk of flooding to authorize the temporary diversion of floodflows for groundwater recharge.
3. Provides that "floodflows" may include measured flows that are "projected" by a local or regional agency to be in excess of the maximum design capacity of a flood project or flows "projected" by a local or regional agency to inundate ordinarily dry areas in the bed of a terminal lake.
4. Clarifies that "imminent" means conditions that will begin or that are projected to begin within 72 hours.
5. Provides that a local or regional agency shall be responsible for determining when flood conditions have abated for purposes of ceasing the temporary diversion of floodflows for groundwater recharge.
6. Requires a local or regional agency to issue a declaration that flood conditions are projected to end at least 48 hours beforehand to inform the public and diverters. Requires a local or regional agency to notify the public and known diverters that flood conditions are abating, within 24 hours of the projected end of flood conditions. Regardless, diversions must cease no later than 30 days after notice by a local or regional agency is given.
7. Provides that floodflows may only be temporarily diverted for groundwater recharge when the Delta is in excess water conditions without restrictions. Requires a diverter exercising the authority to temporarily divert floodflows for groundwater recharge to monitor conditions daily using the Delta Operations Summary published on the Department of Water Resources’ (DWR) website to determine whether the Delta is in excess conditions without restrictions.
8. Requires an entity that temporarily diverts floodflows for groundwater recharge to also provide reports on its diversion to the local or regional agency that issued the flood determination.
9. Requires the State Water Resources Control Board (State Water Board) to post any report it receives from an entity that is temporarily diverting floodflows for groundwater recharge on its website the next business day after receipt.
10. Provides that an entity temporarily diverting floodflows for groundwater recharge must provide an initial report to the State Water Board within 24 hours (rather than 48 hours) of commencing diversions.
11. Requires an entity's final report on the temporary diversion of floodflows for groundwater recharge to include information describing forecasting models used, a description of the methodology used to determine the abatement of flood conditions, and an explanation of any diversion renewals.

COMMENTS

Groundwater recharge is an important strategy to enhance water supply and water supply reliability in the face of climate change. This has been recognized in numerous state plans and strategies and by water agencies, nongovernmental organizations, and researchers. One manner in which groundwater recharge can be expanded is through the capture or diversion of high water flows or flood flows during wet periods such as the winters of 2017 and 2023. Capturing water during such events can be challenging if a potential diverter has not obtained the necessary permits to do so. For example, if a groundwater recharge project involves diverting surface water from a river or stream to a recharge area, a water right or permit is required. Obtaining a new water right can take a long time so, several projects in recent years have opted to seek a temporary urgency (180-day) permit to divert flood flows to groundwater recharge. The State Water Board can also issue a five-year temporary permit for groundwater recharge.

2023 Executive Orders (EO) and SB 122. To take advantage of the unexpected wet winter last year and capture high water flows for groundwater recharge, Governor Newsom issued EO N-4-23 which, among other provisions, authorized diverters to temporarily take "floodflows" off of streams and rivers for groundwater recharge without obtaining a water right, complying with the California Environmental Quality Act, and obtaining a Lake and Streambed Alteration Agreement. The authority in EO N-4-23 was modified and extended through EO N-7-23 and then codified into law with the passage of SB 122 last year. SB 122 makes various changes to the EOs, including adding a requirement that a local or regional agency must rely upon a local plan of flood control or a county general plan that considers flood risk in order for an unpermitted diversion of floodflows to occur within the agency's territory. Further, the diverted water cannot be applied to certain types of land (e.g., where manure has been applied in the previous 45 days) and the diversion must meet the following criteria:

1. Use existing diversion infrastructure or temporary pumps;
2. Use existing groundwater recharge locations;
3. Cannot use new permanent infrastructure or permanent construction; and
4. Use protective screens on temporary pumps to protect fish and other aquatic life when water is diverted directly from a river or stream. The protective screens must be constructed of any rigid material, perforated, woven, or slotted that allows water to pass while physically excluding fish. In addition, a protective screen must be parallel to the flow of water and adjacent to the water’s edge and meet other specified criteria.

The State Water Board received and posted 78 reports of temporary diversion of floodflows for groundwater recharge under the authority granted by the EOs (see https://www.waterboards.ca.gov/waterrights/water_issues/programs/groundwater-recharge/). The majority of these reports indicate that diversions began the same day or within days of, the issuance of the first EO, N-4-23, on March 10, 2024 and, in many cases continued through August and even September 2023. EO N-4-23 provides in paragraph 3c that "diversions cease when the flood conditions 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" (EO N-7-23 extended the authority to divert and this restriction). Despite this requirement, it appears that many diversions under the authority granted by the EOs continued long after flood conditions had abated.

In May of this year, DWR released its Semi-Annual Groundwater Conditions report that indicates that groundwater storage in California improved for the first time since 2019. Per the report, the state achieved 4.1 million acre-feet (AF) of managed aquifer recharge water in 2023; 1.2 million AF of this was permitted by state agencies and approximately 453,000 AF occurred under the authority for the temporary diversion of floodflows for groundwater recharge authorized by EO N-4-23 and EO N-7-23. The remaining recharge occurred as a result of the wet conditions.

According to the Author

"[This bill] is a simple bill that provides clarity to current flood planning requirements and builds on the momentum of SB 122 and the Governor's [EO] issued in March of 2023. [This bill] will allow more groundwater projects to move forward during flood events by providing water agencies with information about when flood conditions begin and end by using sophisticated forecasting models to anticipate flood events, with increased accountability, public safety and water quality." The author further contends that “until statute is modified, California will be unable to make the most efficient use of flood flows, which will increasingly make up the source of water supplies in the state as the climate continues to warm."

Arguments in Support

This bill is sponsored by Sustainable Conservation (SusCon). SusCon points out that groundwater recharge is an important strategy to help respond to climate change and facilitate the implementation of the Sustainable Groundwater Management Act. By clarifying when flood conditions begin and end, recognizing the utilization of forecasting models, and increasing reporting and accountability, SusCon argues this bill "carries forward the progress of the [EO] and SB 122 by allowing more recharge projects to be completed in a safe and responsible manner."

Arguments in Opposition

The San Francisco Baykeeper opposes this bill asserting that it will "allow local agencies to freely pump water from California's already fragile river systems in a misguided effort to reclaim floodwaters for groundwater recharge. The current science continues to indicate aquatic ecosystems in California's rivers and the San Francisco Bay estuary, their fish, wildlife, and water quality, and the people that depend on them are in desperate need of more flows, not less."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

The State Water Board reports General Fund costs of $250,000 in one-time contracting costs to update data management systems to incorporate increased information required by this bill.

VOTES

SENATE FLOOR: 37-0-3

YES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Allen, Archuleta, Newman

ASM WATER, PARKS, AND WILDLIFE: 13-0-2

YES: Papan, Addis, Alanis, Alvarez, Bennett, Gallagher, Davies, Garcia, Hart, Luz Rivas, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Mathis, Bonta

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: August 19, 2024

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0004110

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1390

Author:(Caballero) – As Amended Ver:June 26, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill makes numerous changes to existing authority to temporarily divert floodflows for groundwater recharge without obtaining a water right or other permits, including specifying when allowed diversions begin and end, and requiring public reporting on diversions, with all changes applicable to floodflow diversions commenced before January 1, 2029.

Specifically, this bill:

1. In order to authorize a temporary diversion of floodflows, adds a local hazard mitigation plan and general plan to the list of plans that a local or regional agency may rely upon to declare an imminent risk of flooding, and requires the agency to give notice that a “delineated area within its jurisdiction” is at imminent risk of flooding, defined as beginning within 72 hours.
2. Expands the definition of “floodflow” to include flows that are projected by the agency to inundate ordinarily dry areas in the bed of a terminal lake.
3. Requires the agency to determine when flood conditions have abated for purposes of ceasing the temporary diversion of floodflows for groundwater recharge, and requires temporary diversion of floodflows to cease no later than 30 days after commencing.
4. Requires a local or regional agency to declare flood conditions are projected to end at least 48 hours beforehand and to inform the public and diverters of flood conditions abating within 24 hours of the projected end of flood conditions.
5. Regarding the Sacramento-San Joaquin Delta (Delta), provides that floodflows may be temporarily diverted for groundwater recharge only when the Delta is in “excess water conditions” without restrictions as published on the Department of Water Resources’ (DWR) website.
6. Specifies details and timing for notices and reporting to the State Water Resources Control Board (SWRCB) and other agencies on temporary floodflow diversions and requires SWRCB to post reports within 24 hours.
7. States that diversion of floodflows without an appropriative water right other than as authorized in this bill is a trespass.

FISCAL EFFECT:

SWRCB reports General Fund costs of $225,000 annually ongoing for staff to be available seven days a week to post floodflow diversion notices and reports on the SWRCB’s website within 24 hours; and $250,000 in one-time contracting costs to update data management systems to incorporate increased information required by this bill.

In addition, SWRCB reports costs from the Water Rights Fund of $4.5 million annually ongoing through December 31, 2028, for 21 permanent full-time positions to process new water right permits for flood control projects. According to SWRCB, this bill’s provision stating that diversion of floodflows without an appropriative water right other than as authorized in this bill is a trespass has the effect of requiring flood control projects without appropriative water rights to apply for permits. SWRCB states:

Under our current water rights system, the diversion of water for the single purpose of flood control is not considered a beneficial use and therefore does not require a water right. The [SWRCB] also does not require flood control projects throughout the state to have water rights permits when their diversions are solely for flood control. To avoid enforcement actions due to the [trespass provision], flood control projects across the state that divert floodflows, other than to groundwater recharge in compliance with this bill, would now need to apply for water right permits. With this, the [SWRCB] will require additional resources in order to perform the work associated with permitting those new water rights.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

This bill] is a simple bill that provides clarity to current flood planning requirements and builds on the momentum of SB 122 and the Governor’s Executive Order [EO] issued in March of 2023. [This bill] will allow more groundwater projects to move forward during flood events by providing water agencies with information about when flood conditions begin and end by using sophisticated forecasting models to anticipate flood events, with increased accountability, public safety and water quality….until statute is modified, California will be unable to make the most efficient use of flood flows, which will increasingly make up the source of water supplies in the state as the climate continues to warm.

1. Background. Groundwater recharge is an important strategy to enhance water supply, which can be achieved through capture or diversion of high water flows or flood flows during wet periods such as the winters of 2017 and 2023. However, capturing water during flood events can be delayed or precluded by the need to get a water permit from the SWRBC. In 2023, Governor Newsom issued executive orders (EOs) authorizing water agencies to divert excess floodflows from rivers and streams for groundwater recharge without a water right if certain criteria are met, with diversions to cease when flood risk abates. The SWRCB received and posted 78 reports of temporary diversion of floodflows for groundwater recharge under the authority granted by the EOs. Many diversions began immediately after the first EO issued on March 10, 2023, and in many cases continued through August and September 2023, long after flood conditions had abated. A 2023 trailer bill authorized diversion of floodflows for groundwater recharge consistent with the EOs through January 1, 2029. This bill modifies that statute.

Sustainable Conservation, the bill sponsor, claims that by clarifying when flood conditions begin and end, recognizing the utilization of forecasting models, and increasing reporting and accountability, this bill “carries forward the progress of the [EO] and SB 122 by allowing more recharge projects to be completed in a safe and responsible manner.” Opponents claim this bill will allow local agencies to freely pump water from California’s already fragile river systems in a “misguided effort to reclaim floodwaters for groundwater recharge” with impacts on aquatic ecosystems, fish, wildlife, water quality and people.

1. Related Legislation. SB 122 (Committee on Budget and Fiscal Review), Chapter 51, Statues of 2023, exempted among other substantive provisions, the diversion of floddflows for groundwater recharge from requirements to obtain a water right and permits if specified conditions are met.

Analysis Prepared by: Jacqueline Kinney / APPR. / (916) 319-2081

Date of Hearing: June 25, 2024

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Diane Papan, Chair

SBPCA Bill Id:SB 1390

Author:(Caballero) – As Amended Ver:June 17, 2024

SENATE VOTE: 37-0

SUBJECT: Groundwater recharge: floodflows: diversion

SUMMARY: Makes numerous changes to existing authority to temporarily divert floodflows for groundwater recharge without a water right or other permits. Specifically, this bill:

1. Adds a county emergency operations plan (EOP) and a local hazard mitigation plan to the list of plans that a local or regional agency may rely upon to determine there is an imminent risk of flooding to authorize the temporary diversion of floodflows for groundwater recharge.
2. Provides that a local or regional agency must give notice that a “delineated area within its jurisdiction” (rather than “flows downstream of a point of diversion”) are at imminent risk of flooding to authorize the temporary diversion of floodflows for groundwater recharge.
3. Provides that “floodflows” may include measured flows that are “projected” by a local or regional agency to be in excess of the maximum design capacity of a flood project or flows “projected” by a local or regional agency to inundate ordinarily dry areas in the bed of a terminal lake.
4. Clarifies that “imminent” means conditions that will begin or that are projected to begin within 72 hours.
5. Provides that a local or regional agency shall be responsible for determining when flood conditions have abated for purposes of ceasing the temporary diversion of floodflows for groundwater recharge.
6. Provides that the temporary diversion of floodflows for groundwater recharge shall cease no later than 14 days after commencing, unless renewed (see #8, below).
7. Requires a local or regional agency to issue a declaration that flood conditions are projected to end at least 48 hours beforehand to inform the public and diverters. Requires a local or regional agency to notify the public and known diverters that flood conditions are abating, within 24 hours of the projected end of flood conditions.
8. Provides a local or regional agency may renew a temporary diversion of floodflows for groundwater recharge for an additional 14 days by notifying the State Water Resources Control Board (State Water Board) seven days before the authority to do so expires.
9. Provides that floodflows may only be temporarily diverted for groundwater recharge when the Delta is in excess water conditions without restrictions. Requires a diverter exercising the authority to temporarily divert floodflows for groundwater recharge to monitor conditions daily using the Delta Operations Summary published on the Department of Water Resources’ (DWR) website to determine whether the Delta is in excess conditions without restrictions.
10. Defines “excess water conditions” for purposes of #9, above, as those determined pursuant to the coordinated operation agreement (COA) for the federal Central Valley Project (CVP) and State Water Project (SWP), as amended.
11. Defines “without restrictions” for purposes of #9, above, as when Delta exports are not constrained by any requirements, including for the protection of water quality and endangered species per COA.
12. Provides that a temporary diversion of floodflows for groundwater recharge shall not be used as basis for a water right.
13. Requires an entity that temporarily diverts floodflows for groundwater recharge to also provide reports on its diversion to the local or regional agency that issued the flood determination.
14. Requires the State Water Board to post on its website any reports it receives from an entity that is temporarily diverting floodflows for groundwater recharge within 24 hours.
15. Provides that an entity temporarily diverting floodflows for groundwater recharge must provide an initial report to the State Water Board within 24 hours (rather than 48 hours) of commencing diversions.
16. Requires an entity’s final report on the temporary diversion of floodflows for groundwater recharge to include information describing forecasting models used, a description of the methodology used to determine the abatement of flood conditions, and an explanation of any diversion renewals.
17. Provides that temporary floodflow diversions for groundwater recharge 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.
18. Extends the sunset date on the authority to temporarily divert floodflows for groundwater recharge from January 1, 2029 to June 1, 2032.
19. Makes technical and clarifying changes.

EXISTING LAW:

1. Exempts the temporary diversion of floodflows for groundwater recharge from requirements to obtain a water right if specified conditions are met (see discussion under Background, below) (Water Code § 1242.1).
2. Authorizes the State Water Board to issue a temporary urgency permit (water right) so long as the diversion does not harm other lawful users of water and meets other conditions. Temporary urgency permits shall automatically expire after 180 days, unless renewed (Water Code § 1425 et seq.).
3. Authorizes the State Water Board to issues a temporary permit (water right) to divert water for groundwater recharge so long as the diversion does not harm other lawful users of water and meets other conditions. Temporary permits for groundwater recharge shall automatically expire after five years, unless renewed (Water Code § 1433 et seq.).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. According to the author, “[this bill] is a simple bill that provides clarity to current flood planning requirements and builds on the momentum of SB 122 and the Governor’s Executive Order [EO] issued in March of 2023. [This bill] will allow more groundwater projects to move forward during flood events by providing water agencies with information about when flood conditions begin and end by using sophisticated forecasting models to anticipate flood events, with increased accountability, public safety and water quality.” The author further contends that “until statute is modified, California will be unable to make the most efficient use of flood flows, which will increasingly make up the source of water supplies in the state as the climate continues to warm.”
2. Background. Groundwater recharge is an important strategy to enhance water supply and water supply reliability in the face of climate change. This has been recognized in numerous state plans and strategies and by water agencies, nongovernmental organizations, and researchers. One manner in which groundwater recharge can be expanded is through the capture or diversion of high water flows or flood flows during wet periods such as the winters of 2017 and 2023. Capturing water during such events can be challenging if a potential diverter has not obtained the necessary permits to do so. For example, if a groundwater recharge project involves diverting surface water from a river or stream to a recharge area, a water right or permit is required. Obtaining a new water right can take a long time so, several projects in recent years have opted to seek a temporary urgency (180-day) permit to divert flood flows to groundwater recharge. The State Water Board can also issue a five-year temporary permit for groundwater recharge.

2023 EOs and SB 122. To take advantage of the unexpected wet winter last year and capture high water flows for groundwater recharge, Governor Newsom issued EO N-4-23 which, among other provisions, authorized diverters to temporarily take “floodflows” off of streams and rivers for groundwater recharge without obtaining a water right, complying with the California Environmental Quality Act, and obtaining a Lake and Streambed Alteration Agreement (LSAA). The authority in EO N-4-23 was modified and extended through EO N-7-23 and then codified into law with the passage of SB 122 last year. SB 122 makes various changes to the EOs, including adding a requirement that a local or regional agency must rely upon a local plan of flood control or a county general plan that considers flood risk in order for an unpermitted diversion of floodflows to occur within the agency’s territory. Further, the diverted water cannot be applied to certain types of land (e.g., where manure has been applied in the previous 45 days) and the diversion must meet the following criteria:

• Use existing diversion infrastructure or temporary pumps;
• Use existing groundwater recharge locations;
• Cannot use new permanent infrastructure or permanent construction; and
• Use protective screens on temporary pumps to protect fish and other aquatic life when water is diverted directly from a river or stream. The protective screens must be constructed of any rigid material, perforated, woven, or slotted that allows water to pass while physically excluding fish. In addition, a protective screen must be parallel to the flow of water and adjacent to the water’s edge and meet other specified criteria.

The State Water Board received and posted 78 reports of temporary diversion of floodflows for groundwater recharge under the authority granted by the EOs (see https://www.waterboards.ca.gov/waterrights/water_issues/programs/groundwater-recharge/). The majority of these reports indicate that diversions began the same day or within days of, the issuance of the first EO, N-4-23, on March 10, 2024 and, in many cases continued through August and even September 2023. EO N-4-23 provides in paragraph 3c that “diversions cease when the flood conditions 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” (EO N-7-23 extended the authority to divert but also this restriction). Despite this requirement, it appears that many diversions under the authority granted by the EOs continued long after flood conditions had abated.

In May of this year, DWR released its Semi-Annual Groundwater Conditions report that indicates that groundwater storage in California improved for the first time since 2019. Per the report, the state achieved 4.1 million acre-feet (AF) of managed aquifer recharge water in 2023; 1.2 million AF of this was permitted by state agencies and approximately 453,000 AF occurred under the authority for the temporary diversion of floodflows for groundwater recharge authorized by EO N-4-23 and EO N-7-23. The remaining recharge occurred as a result of the wet conditions.

Flood and emergency plans. SB 122 constrained the temporary diversion of floodflows for groundwater recharge in comparison to the EOs by requiring a local or regional agency that determines flooding is imminent to have adopted a local plan of flood control or considered flood in its most recent general plan. This bill adds two additional plans that can provide the basis for an agency to make a determination that flooding is imminent: (1) a county EOP; and (2) a local hazard mitigation plan adopted pursuant to the federal Disaster Mitigation Act of 2000.

Per the Office of Emergency Services (CalOES), EOPs are “a document that defines the scope of preparedness and emergency management activities necessary for that jurisdiction to effectively respond to large-scale incident or disaster.” EOPs do identify hazards relevant to a given county but focus more on how to communicate risks to the public, evacuate the public if in harm’s way, describe how resources will be deployed in response to a disaster, and how to ensure continuity of basic services. CalOES establishes best practices for EOPs and is required to review at least ten EOPs annually through 2028 pursuant to AB 580 (Rodriguez), Chapter 744, Statutes of 2022. While EOPs vary across jurisdictions, they do not appear to provide an appropriate basis for determining when flooding is imminent.

Local hazard mitigation plans are adopted under the federal Disaster Mitigation Act of 2000. The Federal Emergency Management Agency (FEMA) establishes requirements and best practices for these plans and supports their development through various grant programs. FEMA requirements for local hazard mitigation plans pertain to the planning process, assessment of risks, mitigation strategy, plan maintenance, plan adoption, and, if applicable, addressing high hazard potential dams.

COA. This bill provides that temporary diversions of floodflows for groundwater recharge from tributaries to the Delta can only occur when the Delta is “in excess conditions without restrictions.” The basis for determining this is COA, an agreement between the Federal government and the State of California for the coordinated operation of the federal CVP and SWP. The COA was initiated in 1986 and most recently revised in 2018. Delta conditions (“Delta Operations Summary”) are posted daily on DWR’s web site: https://water.ca.gov/Programs/State-Water-Project/Operations-and-Maintenance/Operations-and-Delta-Status. This provision was added in the most recent round of amendments to this bill and is intended to protect junior water right holders.

1. Arguments in support. This bill is sponsored by Sustainable Conservation (SusCon). SusCon points out that groundwater recharge is an important strategy to help respond to climate change and facilitate the implementation of the Sustainable Groundwater Management Act. By clarifying when flood conditions begin and end, recognizing the utilization of forecasting models, and increasing reporting and accountability, SusCon argues this bill “carries forward the progress of the [EO] and SB 122 by allowing more recharge projects to be completed in a safe and responsible manner.”
2. Oppose unless amended. The Golden Gate Salmon Association (GGSA) and two environmental organizations have taken an “oppose unless amended” position on this bill arguing that this bill will exacerbate conditions in the San Francisco Bay-Delta Estuary where various runs of salmon and other fish are endangered and even “on the brink of extinction.” GGSA seeks amendments to (1) clarify that only agencies with flood management responsibilities be able to issue a declaration that flooding is imminent; (2) strike general plans and emergency operations plans as a basis for determining when flooding is imminent; (3) consider flood liability; (4) strike the inundation of “ongoing agricultural activities” from the definition of “floodflows;” (5) define land that is “an outlier with respect to nitrogen application;” and (6) retain the sunset date in existing law of 2029. Some of the amendments requested by GGSA address provisions of existing law.
3. Arguments in opposition. The San Francisco Baykeeper (SF Baykeeper) opposes this bill asserting that it will “allow local agencies to freely pump water from California’s already fragile river systems in a misguided effort to reclaim floodwaters for groundwater recharge. The current science continues to indicate aquatic ecosystems in California’s rivers and the San Francisco Bay estuary, their fish, wildlife, and water quality, and the people that depend on them are in desperate need of more flows, not less.”
4. Proposed committee amendments. The Committee may wish to consider the following amendments to this bill.
   
   Which plans? As discussed above, EOPs describe how a county will deploy resources, ensure continuity of services, and evacuate members of the public in the event of an emergency. They are operational plans, not descriptive plans of what is flood stage or where flooding will occur. As such, they are inappropriate as a basis for determining whether flooding is imminent for the purposes of temporary diversion for groundwater recharge. The Committee may wish to request that the author take the following amendment to delete EOPs as a basis for determining imminent risk of flooding:

Amendment 1

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).

Duration of “temporary” diversions? This bill provides that temporary diversions must cease no later than 14 days after commencing, unless renewed; however, renewals should not be necessary as an agency can issue new declaration that flooding is imminent should conditions change. To address this, the Committee may wish ask the author to strike the renewal provision and extend the time limit on diversions from 14 to 30 days to account for longer flood events:

Amendment 2

1242.1 … (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 diversions, as determined by the local or regional agency making the diversion. Diversions shall cease no later than 14 30 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 14 days by notifying the board of its intention to continue diverting 7 days before its expiration.

Sunset extension? This bill proposes to extend the sunset date on the authority to temporarily divert floodflows for groundwater recharge by three years from 2029 to 2032. Given that this authority was enacted less than a year ago and will be in effect for another four and a half years, extending the sunset is premature. Further, retaining the current sunset of 2029 will require more timely review of this new approach to diverting high flows for the purposes of groundwater recharge. The Committee may wish to request that the author retain the existing sunset date of 2029:

Amendment 3

1242.1…. (j) The diversions are commenced before June 1, 2032. This section does not apply to diversions commenced on or after June 1, 2032. This section shall only apply to diversions commenced before January 1, 2029.

1. Related legislation. AB 2060 (Soria) of the current legislative session exempts a temporary urgency permit for diversion to underground storage from LSAA requirements if specified conditions are met. AB 2060 is pending in the Senate Natural Resources and Water Committee.
   
   SB 122 (Committee on Budget and Fiscal Review), Chapter 51, Statutes of 2023, exempted, among other substantive provisions, the diversion of floodflows for groundwater recharge from requirements to obtain a water right and other permits if specified conditions are met (see discussion, above).
   
   AB 830 (Soria) of 2023 would have exempted temporary operation of existing infrastructure or temporary pumps to divert flood stage flows, or near-flood stage flows, to groundwater recharge from LSAA requirements if certain conditions were met. AB 830 was held on the suspense file in the Senate Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Sustainable Conservation (sponsor)

Almond Alliance
California State Association of Counties
Fresno, County of
Kings River Conservation District
Kings River Water Association

Opposition

Friends of the River
Restore the Delta
San Francisco Baykeeper

Oppose Unless Amended

Defenders of Wildlife
Golden State Salmon Association
Planning and Conservation League

Analysis Prepared by: Pablo Garza / W., P., & W. / (916) 319-2096

 THIRD READING  

Bill No: SB 1390

Author: Caballero (D), et al.

Amended: 4/24/24

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 11-0, 4/23/24

AYES: Min, Seyarto, Allen, Dahle, Eggman, Grove, Hurtado, Laird, Limón, Menjivar, Padilla

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SUBJECT: Groundwater recharge: floodflows: diversion

SOURCE: Sustainable Conservation

DIGEST:

This bill modifies the requirements for a diversion of floodflows for groundwater recharge without an appropriative water right.

ANALYSIS:

Existing law:

1. Provides that the diversion of floodflows for groundwater recharge does not require an appropriative water right if certain conditions are met. (Water Code (WAT) §1242.1) As follows:
   1. Requires that a local or regional agency that has adopted a local plan of flood control or has considered flood risk as part of its most recently adopted general plan has given notice that flows downstream of a point of diversion are at imminent risk of flooding and inundation of land, roads, or structures.
   2. Requires the diversions cease when the flood conditions have abated, as specified.
   3. Requires that any water diverted is not diverted or applied to:
      1. Any barns, ponds or lands with manure or waste from an animal facility, as provided;
      2. Any agricultural field identified as an outlier with respect to nitrogen application, as provided;
      3. Any area that could cause damage to critical levees, and infrastructure, among other provisions; and
      4. Any area that has not been in active irrigated agricultural cultivation within the past three years, as provided.
   4. Requires that 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 Sacramento-San Joaquin Delta (Delta) at the time of the diversion, as provided.
   5. Requires the diversion of floodflows for groundwater recharge to use:
      1. Existing diversion infrastructure or temporary pumps;
      2. Existing groundwater recharge locations;
      3. No new permanent infrastructure or construction; and
      4. Protective screens to minimize the impacts on fish of diversion, as provided.
   6. Requires the person or entity making the diversion to not make any claim of water right based on that diversion and recharge.
   7. Requires the person or entity making the diversion to file certain information with the State Water Resources Control Board (SWRCB) and any applicable groundwater sustainability agency, including:
      1. A notice containing specified information 48 hours prior to commencing diversion, or at least no more than 48 hours after commencing diversion.
      2. A preliminary report not later than 14 days are commencing diversion.
      3. A final report no later than 15 days after diversions cease.
   8. Requires the preliminary and final report identified in g) to include the identification of the person making the diversion, coordinates of the point of diversion, a map identifying the area inundated by the floodflows, the time the diversion started and when it ceased, and an estimate of the amount of floodflows diverted for groundwater recharge.
   9. Provides that these provisions only apply for diversions commenced before January 1, 2029.
2. Defines floodflow for the purposes of 1) to mean flows in excess of a defined flood stage for a waterbody where actions are necessary to avoid threats to human health and safety, and where surface water has escaped from or is likely to escape from a waterbody or channel imminently causing or threatening to cause inundation, as specified, and where flows would inundate ordinarily dry areas in the bed of a terminal lake to a depth that floods certain operations or development, as specified.
3. Requires the SWRCB to post on its website all diversion reports, as specified. Requires the SWRCB to compile certain information from the diversion reports received on an annual basis, authorizes the SWRCB to include specified recommendations with that compiled information, and requires SWRCB to post this material on its internet website. (WAT §1242.2)

This bill modifies the requirements for a diversion of floodflows for groundwater recharge without an appropriative water right.

Specifically, this bill:

1. Modifies the requirements that a local or regional agency is required to meet for the diversion of floodflows for groundwater recharge without an appropriate water right within its jurisdiction. Authorizes the use of a county emergency operations plan, in addition to a recently updated general plan and a local plan of flood control as the basis for a diversion.
2. Specifies that floodflows include when flows are projected to inundate certain areas by a local or regional agency, as provided, in addition to measured conditions.
3. Specifies that imminent risk of flood conditions includes when flood conditions are projected to begin within the next 15 days in addition to the immediate future.
4. Specifies that the local or regional agency making the diversion determines when the flood conditions have abated.
5. Requires that diversions cease no later than 90 days after commencing unless they are renewed.
6. Authorizes a local or regional agency to renew a diversion for an additional 30 days by notifying the SWRCB of its intention to continue diverting 15 days before its expiration.
7. Requires the final diversion report to identify the forecasting model used, as applicable, any publicly available data used in the forecasting model, a description of the methodology used to determine whether flood conditions have abated, and a description of any diversion renewals.
8. Extends the sunset to June 1, 2032 for diversions commencing without an appropriative water right.
9. Clarifies that the diversion authority does not diminish or alter the authority of the SWRCB to administer or enforce water rights.
10. Specifies that temporary floodflow diversions are consistent with the most junior priority relative to all water rights holders and require that they not injure a prior water rights holder, as provided.
11. Specifies that any diversion is not evidence in support of a subsequently filed standard water right application or against modification or development of an existing appropriative water right.
12. Makes several technical and conforming changes.

Background

In 2023, the state experienced a dramatic end to the recent drought when a series of atmospheric rivers brought heavy precipitation to the state that resulted in record-breaking water storage and snowpack levels. Unfortunately, this precipitation also resulted in extensive flood damage.

Extreme weather events, including rapid changes between dry and wet conditions, are anticipated to increase in California as the climate continues to change. According to a 2022 study published by scientists from UCLA, climate change already has doubled the likelihood of an extreme storm bringing catastrophic flooding in California, and the risk will continue to increase.

In response to the need to manage potentially destructive flood flows and to take advantage of excess water to help recharge depleted groundwater basins, Governor Newsom issued a series of executive orders in 2023 authorizing water agencies to divert excess floodflows from rivers and streams for the purposes of groundwater recharge without the need to obtain a water right so long as certain criteria were met. Previously a diverter would have had to apply to the SWRCB for a new water right permit or to change an existing water right permit. The SWRCB issues both a standard or temporary permit (good for 180 days) for diversions.

Between March and August 2023, under the terms of Executive Orders N-4-23 and N-7-23, 78 diversions of floodflows for groundwater recharge were conducted. Almost all were conducted in the San Joaquin Valley and Tulare Lake Basin, except for diversions by the Los Angeles Department of Water and Power in Inyo, Kern, and Los Angeles Counties.

The Newsom Administration sought to codify the executive orders through budget trailer bill language in 2023. Following negotiations between legislative leadership and the administration, provisions codifying the ability to divert floodflows for groundwater recharge without an appropriative water right in certain conditions were included in last year’s public resources trailer bill, SB 122 (Committee on Budget and Fiscal Review, Chapter 51, Statutes of 2023).

(NOTE: Additional information may be found in the policy bill analysis written by the Senate Committee on Natural Resources and Water.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, this bill’s fiscal impact is:

• The State Water Resources Control Board (State Water Board) estimates one-time contracting costs of $250,000 (General Fund or special fund) to update data management systems.
• The Department of Water Resources (DWR) anticipates any costs would be minor and absorbable.

SUPPORT: (Verified 5/15/24)

Sustainable Conservation (source)

Almond Alliance

California Farm Bureau Federation

California State Association of Counties

County of Monterey

Valley Ag Water Coalition

OPPOSITION: (Verified 5/15/24)

None received

ARGUMENTS IN SUPPORT: According to the author, “SB 1390 is a simple bill that provides clarity to current flood planning requirements and builds on the momentum of SB 122 and the Governor’s Executive Order issued in March of 2023. SB 1390 will allow more groundwater projects to move forward during flood events by providing water agencies with information about when flood conditions begin and end by using sophisticated forecasting models to anticipate flood events, with increased accountability, public safety and water quality.”

“Until statute is modified, California will be unable to make the most efficient use of flood flows, which will increasingly make up the source of water supplies in the state as the climate continues to warm.”

Prepared by: Katharine Moore / N.R. & W. / (916) 651-4116

5/17/24 10:09:36

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1390 (Caballero) - Groundwater recharge: floodflows: diversion

Bill Summary:

This bill would modify the requirements for a diversion of floodflows for groundwater recharge without an appropriative water right.

Fiscal Impact:

• The State Water Resources Control Board (State Water Board) estimates one-time contracting costs of $250,000 (General Fund or special fund) to update data management systems.
• The Department of Water Resources (DWR) anticipates any costs would be minor and absorbable.

Background:

In 2023, the state experienced a dramatic end to the recent drought when a series of atmospheric rivers brought heavy precipitation to the state that resulted in record-breaking water storage and snowpack levels. Unfortunately, this precipitation also resulted in extensive flood damage.

Extreme weather events, including rapid changes between dry and wet conditions, are anticipated to increase in California as the climate continues to change. According to a 2022 study published by scientists from UCLA, climate change already has doubled the likelihood of an extreme storm bringing catastrophic flooding in California, and the risk will continue to increase.

In response to the need to manage potentially destructive flood flows and to take advantage of excess water to help recharge depleted groundwater basins, Governor Newsom issued a series of executive orders in 2023 authorizing water agencies to divert excess floodflows from rivers and streams for the purposes of groundwater recharge without the need to obtain a water right so long as certain criteria were met. Previously a diverter would have had to apply to the State Water Resources Control Board (SWRCB) for a new water right permit or to change an existing water right permit. The SWRCB issues both a standard or temporary permit (good for 180 days) for diversions.

Between March and August 2023, under the terms of Executive Orders N-4-23 and N-7-23, 78 diversions of floodflows for groundwater recharge were conducted. Almost all were conducted in the San Joaquin Valley and Tulare Lake Basin, except for diversions by the Los Angeles Department of Water and Power in Inyo, Kern, and Los Angeles Counties.

The Newsom Administration sought to codify the executive orders through budget trailer bill language in 2023. Following negotiations between legislative leadership and the administration, provisions codifying the ability to divert floodflows for groundwater recharge without an appropriative water right in certain conditions were included in last year’s public resources trailer bill, SB 122 (Committee on Budget and Fiscal Review, Chapter 51, Statutes of 2023).

Proposed Law:

This bill would modify the requirements for a diversion of floodflows for groundwater recharge without an appropriative water right. Specifically, this bill would:

1. Modify the requirements that a local or regional agency is required to meet for the diversion of floodflows for groundwater recharge without an appropriate water right within its jurisdiction. Authorize the use of a county emergency operations plan, in addition to a recently updated general plan and a local plan of flood control as the basis for a diversion.
2. Specify that floodflows include when flows are projected to inundate certain areas by a local or regional agency, as provided, in addition to measured conditions.
3. Specify that imminent risk of flood conditions includes when flood conditions are projected to begin within the next 15 days in addition to the immediate future.
4. Specify that the local or regional agency making the diversion determines when the flood conditions have abated.
5. Requires that diversions cease no later than 90 days after commencing unless they are renewed.
6. Authorize a local or regional agency to renew a diversion for an additional 30 days by notifying the SWRCB of its intention to continue diverting 15 days before its expiration.
7. Require the final diversion report to identify the forecasting model used, as applicable, any publicly available data used in the forecasting model, a description of the methodology used to determine whether flood conditions have abated, and a description of any diversion renewals.
8. Extend the sunset to June 1, 2032 for diversions commencing without an appropriative water right.
9. Clarify that the diversion authority does not diminish or alter the authority of the SWRCB to administer or enforce water rights.
10. Specify that temporary floodflow diversions are consistent with the most junior priority relative to all water rights holders and require that they not injure a prior water rights holder, as provided.
11. Specify that any diversion is not evidence in support of a subsequently filed standard water right application or against modification or development of an existing appropriative water right.
12. Make several technical and conforming changes.

Related Legislation:

SB 122 (Committee on Budget and Fiscal Review, Chapter 51, Statutes of 2023), the public resources budget trailer bill, authorized the diversion of floodflows through January 1, 2029, for groundwater recharge without requiring an appropriative water right if certain conditions regarding the diversion are met, including, among other things, if a local or regional agency that has adopted a local plan of flood control or has considered flood risk as part of its most recently adopted general plan has given notice that flows downstream of the point of diversion are at imminent risk of flooding and inundation of land, roads, or structures.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: SB Hearing Date: April 23, 2024

Subject: Groundwater recharge: floodflows: diversion

SUMMARY

This bill would modify the requirements for a diversion of floodflows for groundwater recharge without an appropriative water right.

BACKGROUND AND EXISTING LAW

In 2023, the state experienced a dramatic end to the recent drought when a series of atmospheric rivers brought heavy precipitation to the state that resulted in record-breaking water storage and snowpack levels. Unfortunately, this precipitation also resulted in extensive flood damage.

Extreme weather events, including rapid changes between dry and wet conditions, are anticipated to increase in California as the climate continues to change. According to a 2022 study published by scientists from UCLA, climate change already has doubled the likelihood of an extreme storm bringing catastrophic flooding in California, and the risk will continue to increase.

In response to the need to manage potentially destructive flood flows and to take advantage of excess water to help recharge depleted groundwater basins, Governor Newsom issued a series of executive orders in 2023 authorizing water agencies to divert excess floodflows from rivers and streams for the purposes of groundwater recharge without the need to obtain a water right so long as certain criteria were met. Previously a diverter would have had to apply to the State Water Resources Control Board (SWRCB) for a new water right permit or to change an existing water right permit. The SWRCB issues both a standard or temporary permit (good for 180 days) for diversions.

Between March and August 2023, under the terms of Executive Orders N-4-23 and N-7-23, 78 diversions of floodflows for groundwater recharge were conducted. Almost all were conducted in the San Joaquin Valley and Tulare Lake Basin, except for diversions by the Los Angeles Department of Water and Power in Inyo, Kern, and Los Angeles Counties.

The Newsom Administration sought to codify the executive orders through budget trailer bill language in 2023. Following negotiations between legislative leadership and the administration, provisions codifying the ability to divert floodflows for groundwater recharge without an appropriative water right in certain conditions were included in last year’s public resources trailer bill, SB 122 (Committee on Budget and Fiscal Review, Chapter 51, Statutes of 2023).

Existing law:

1. Provides that the diversion of floodflows for groundwater recharge does not require an appropriative water right if certain conditions are met. (Water Code (WAT) §1242.1) As follows:
   1. Requires that a local or regional agency that has adopted a local plan of flood control or has considered flood risk as part of its most recently adopted general plan has given notice that flows downstream of a point of diversion are at imminent risk of flooding and inundation of land, roads, or structures.
   2. Requires the diversions cease when the flood conditions have abated, as specified.
   3. Requires that any water diverted is not diverted or applied to:
      1. Any barns, ponds or lands with manure or waste from an animal facility, as provided,
      2. Any agricultural field identified as an outlier with respect to nitrogen application, as provided,
      3. Any area that could cause damage to critical levees, and infrastructure, among other provisions, and
      4. Any area that has not been in active irrigated agricultural cultivation within the past three years, as provided.
   4. Requires that 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 Sacramento-San Joaquin Delta (Delta) at the time of the diversion, as provided.
   5. Requires the diversion of floodflows for groundwater recharge to use:
      1. Existing diversion infrastructure or temporary pumps,
      2. Existing groundwater recharge locations,
      3. No new permanent infrastructure or construction,
      4. Protective screens to minimize the impacts on fish of diversion, as provided.
   6. Requires the person or entity making the diversion to not make any claim of water right based on that diversion and recharge.
   7. Requires the person or entity making the diversion to file certain information with the SWRCB and any applicable groundwater sustainability agency, including:
      1. A notice containing specified information 48 hours prior to commencing diversion, or at least no more than 48 hours after commencing diversion.
      2. A preliminary report not later than 14 days are commencing diversion.
      3. A final report no later than 15 days after diversions cease.
   8. Requires the preliminary and final report identified in g) to include the identification of the person making the diversion, coordinates of the point of diversion, a map identifying the area inundated by the floodflows, the time the diversion started and when it ceased, and an estimate of the amount of floodflows diverted for groundwater recharge.
   9. Provides that these provisions only apply for diversions commenced before January 1, 2029.
2. Defines floodflow for the purposes of 1) to mean flows in excess of a defined flood stage for a waterbody where actions are necessary to avoid threats to human health and safety, and where surface water has escaped from or is likely to escape from a waterbody or channel imminently causing or threatening to cause inundation, as specified, and where flows would inundate ordinarily dry areas in the bed of a terminal lake to a depth that floods certain operations or development, as specified.
3. Requires the SWRCB to post on its website all diversion reports, as specified. Requires the SWRCB to compile certain information from the diversion reports received on an annual basis, authorizes the SWRCB to include specified recommendations with that compiled information, and requires SWRCB to post this material on its internet website. (WAT §1242.2)

PROPOSED LAW

This bill would modify the requirements for a diversion of floodflows for groundwater recharge without an appropriative water right.

Specifically, this bill would:

1. Modify the requirements that a local or regional agency is required to meet for the diversion of floodflows for groundwater recharge without an appropriate water right within its jurisdiction. Authorize the use of a county emergency operations plan, in addition to a recently updated general plan and a local plan of flood control as the basis for a diversion.
2. Specify that floodflows include when flows are projected to inundate certain areas by a local or regional agency, as provided, in addition to measured conditions.
3. Specify that imminent risk of flood conditions includes when flood conditions are projected to begin within the next 15 days in addition to the immediate future.
4. Specify that the local or regional agency making the diversion determines when the flood conditions have abated.
5. Requires that diversions cease no later than 90 days after commencing unless they are renewed.
6. Authorize a local or regional agency to renew a diversion for an additional 30 days by notifying the SWRCB of its intention to continue diverting 15 days before its expiration.
7. Specify that any diversions in the Delta may only occur when the Delta is in excess conditions without restrictions pursuant to the Coordinated Operation of the Central Valley Project and State Water Project, as specified. Require the diverter to monitor conditions daily using the Department of Water Resources (DWR) Delta Operations Summary report to determine whether the Delta is in excess conditions, as specified.
8. Require the final diversion report to identify the forecasting model used, as applicable, any publicly available data used in the forecasting model, a description of the methodology used to determine whether flood conditions have abated, and a description of any diversion renewals.
9. Extend the sunset to June 1, 2032 for diversions commencing without an appropriative water right.
10. Clarify that the diversion authority does not diminish or alter the authority of the SWRCB to administer or enforce water rights.
11. Specify that temporary floodflow diversions are consistent with the most junior priority relative to all water rights holders and require that they not injure a prior water rights holder, as provided.
12. Specify that any diversion is not evidence in support of a subsequently filed standard water right application or against modification or development of an existing appropriative water right.
13. Make several technical and conforming changes.

ARGUMENTS IN SUPPORT

According to the author, “SB 1390 is a simple bill that provides clarity to current flood planning requirements and builds on the momentum of SB 122 and the Governor’s Executive Order issued in March of 2023. SB 1390 will allow more groundwater projects to move forward during flood events by providing water agencies with information about when flood conditions begin and end by using sophisticated forecasting models to anticipate flood events, with increased accountability, public safety and water quality.”

“Until statute is modified, California will be unable to make the most efficient use of flood flows, which will increasingly make up the source of water supplies in the state as the climate continues to warm.”

ARGUMENTS IN OPPOSITION

Restore the Delta in a coalition opposition letter writes, “As part of the agreement in SB 122 to allow a relaxing of environmental requirements to facilitate the diversion of flood flows to recharge groundwater, a set of protections was incorporated into SB 122, including specific protections for the Delta. This provision was intended to address the concerns raised by organizations and entities in the Delta, who believe that diversion from the Delta would further impact Delta communities and the critical endangered fish that depend upon the Delta for survival.”

Restore the Delta further argues that SB 122 “was written in a way to allow for flexibility to accommodate changes in the rules, to include endangered species protections, and to avoid potential conflict and confusion,” and specifies where proposed changes in the law are problematic – such as where the Daily Water Operations summary is used for compliance purposes despite explicit disclaimer language on DWR’s website.

COMMENTS

The floodflow diversion program only recently went into effect. This bill would amend law that went into effect just over nine months ago on July 10, 2023. Floodflow diversions continued under the auspices of the Executive Order through September 2023, and, while DWR and the Water Boards have implemented the new law, it does not appear that any floodflow diversions have yet occurred. That written, however, it is a fair point that the time period over which budget trailer bills are reviewed and negotiated is usually comparatively limited compared to bills heard through the legislative policy committee process and may not provide the same opportunity for all stakeholders to engage. Further, the successful diversion of floodflows for groundwater recharge is a high priority for the state, and it is important that potential shortcomings hindering diversions be addressed. Committee staff are aware of the author’s efforts to engage with a broad range of stakeholders on the development of this bill’s language.

Recent author amendments related to the identification of floodflows through the Delta have raised concerns among some stakeholders that certain protections are being placed potentially at risk by proposed changes to existing law.

In view of this, the Committee may wish to amend the bill to remove the new Delta-specific language and direct staff to work with the author’s office and stakeholders in an effort to reach consensus on revised and refined Delta-specific language. [Amendment #1]

This bill is a work-in-progress. As the bill moves forward, the author may wish to consider the following:

• While the authority for diversions for groundwater recharge to be conducted without an appropriative water right is extended until June 1, 2032, the required compilation of those reports by the SWRCB is not similarly extended (see WAT §1242.2). There may additionally be merit in some form of summary review of the program by the SWRCB or other entity prior to the sunset.
• Given the dependence of accurate projections of floodflows on adequate forecast modeling, there may be merit in directing the SWRCB or DWR or other entity to provide guidance on or approval to appropriate forecast models and input data requirements.
• A local plan of flood control and a general plan are both land use plans. A county emergency operations plan is an emergency response document. While it is a fair point that the emergency operations plan may be the most current or relevant document readily available in some jurisdictions, it is less clear that its requirements necessarily identify appropriate locations for diversion and recharge. Further refinement regarding the use of this plan may be warranted.
• While acknowledging that the intention is to include extreme events, it is unclear how applicable 15 days of advance notice is for even extreme events given forecast model limitations.
• While the entity declaring the flood threat under the executive orders appears to always have been a governmental agency, the actual diverters appear to have been both public and private entities. As the bill’s language evolves, the author may wish to review or define the entities eligible to divert floodflows.

Recent related legislation

SB 122 (Committee on Budget and Fiscal Review, Chapter 51, Statutes of 2023), the public resources budget trailer bill, authorized the diversion of floodflows through January 1, 2029, for groundwater recharge without requiring an appropriative water right if certain conditions regarding the diversion are met, including, among other things, if a local or regional agency that has adopted a local plan of flood control or has considered flood risk as part of its most recently adopted general plan has given notice that flows downstream of the point of diversion are at imminent risk of flooding and inundation of land, roads, or structures.

SUGGESTED AMENDMENTS

AMENDMENT 1

Remove the last two sentences of proposed WAT §1242.1(d) (return WAT §1242.1(d) to existing law)

SUPPORT

Sustainable Conservation (sponsor)

Almond Alliance

California Farm Bureau Federation

California State Association of Counties

County of Monterey

Valley Ag Water Coalition

OPPOSITION

Defenders of Wildlife (unless amended)

Golden State Salmon Association (unless amended)

Restore the Delta (unless amended)

San Francisco Baykeeper (unless amended)

Sierra Club California (unless amended)

The Bay Institute (unless amended)

-- END --