AB 2026

(1) 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 applies those requirements to diversions commenced before January 1, 2029. The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. Existing law prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing or disposing of certain material where it may pass into any river, stream, or lake, without first notifying the Department of Fish and Wildlife of that activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources, except as specified. This bill would revise and recast those conditions required for the appropriative water right exemption for a diversion of floodflows for groundwater recharge, would apply the requirements to a diversion commenced at anytime, and would further exempt those diversions from the requirements of CEQA and requirements relating to lake or streambed alteration agreements if tribal consultation has been conducted, as provided. The bill would expand the definition of “floodflow” to include flows downstream of a dam that is releasing water for flood control purposes, as provided, and would delete the requirement that eligible diversions have commenced prior to January 1, 2029. (2) Existing law requires the Department of Water Resources to operate the State Water Resources Development System, known as the State Water Project, to supply water to persons and entities in the state. Existing law designates as the Central Valley Project a system of works for the conservation, development, storage, distribution, and utilization of water, with incidental generation, transmission, and distribution of electric power. This bill would provide that the inclusion of certain proposed terms in an application to divert water within or upstream of the Sacramento-San Joaquin Delta to underground storage pursuant to certain permits, and its adoption in the applicable permit, would satisfy the State Water Resources Control Board’s finding that water may be diverted and used without injury to the legal users of water from the Central Valley Project or the State Water Project, including the United States Bureau of Reclamation, the Department of Water Resources, or any contractors to the project. (3) Existing law requires the State Water Resources Control Board to consider and act upon all applications for permits to appropriate water, and requires the Division of Water Rights to conduct a field investigation of all minor protested applications, except under a specified circumstance. Existing law defines a “minor application” to include an application by a groundwater sustainability agency or local agency for a diversion previously authorized by a conditional temporary permit for diversion of surface water to underground storage, as specified, without complying with other procedures or provisions previously authorized by a temporary permit. Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law requires a groundwater sustainability plan to be developed and implemented to meet the sustainability goal, established as prescribed. This bill would expand that definition of minor application to include an application by a private entity under a memorandum of understanding or other agreement with a groundwater sustainability agency for specific diversions. The bill would create an additional exception from the requirement to conduct a field investigation if the application involves a diversion substantially similar to a diversion previously authorized by temporary permits for at least 5 years, involves no greater amount of diversion and no other points of diversion than authorized in the last preceding temporary permits, and includes specified information based on the applicant’s experience under prior temporary permits, including specified documentation and proposed terms. The bill would also require the board to give public notice of the minor application within 30 days of the application’s filing, to allow 45 days from the date of the notice for the filing of comments, as provided, and to issue a decision within 180 days of the deadline for submitting comments on the application, as provided. The bill would require the board to approve the application if it determines by a preponderance of the evidence that the proposed diversion would not injure a legal user of water, as specified, and would not unreasonably affect fish, wildlife, or other instream beneficial uses. The bill would require that the permit issued by the board pursuant to these provisions be exempt from CEQA and requirements relating to lake or streambed alteration agreements if specified conditions are met. Existing law authorizes any person who has an urgent need to divert and use water to apply for, and authorizes the board to issue, a conditional, temporary permit, as prescribed. Existing law defines “urgent need” for these purposes. This bill would expand the definition of “urgent need” to include, in a basin for which the Sustainable Groundwater Management Act requires a groundwater sustainability plan, the application of a local agency, groundwater sustainability agency, or private entity operating under a memorandum of understanding or other agreement with a groundwater sustainability agency, to divert and use water determined to be available using specified criteria, as provided, to augment the basin’s recharge in order to support implementation of the sustainability goal in that basin. The bill would exempt the board’s issuance of a temporary permit from CEQA and requirements relating to lake or streambed alteration agreements if specified conditions are met. (4) Existing law requires the state water board to appoint a deputy director for the Division of Water Rights. This bill would authorize a certain temporary permit to authorize the diversion to be initiated more than 180 days after date of issuance, except that authorization to divert shall automatically expire 5 years after diversions commence, as provided. The bill would authorize the Chief Deputy Director of Water Rights to limit diversion under those temporary permits in favor of competing temporary permits based on, but not limited to, consideration of public interest, as provided. (5) Existing law requires each person or entity who holds a permit or license to appropriate water, and each lessor of water, as provided, to pay an annual fee according to a fee schedule established by the board, as specified. This bill would require the board, in setting fees for minor applications and for temporary urgency permits, to set those fees to reflect not more than a reasonable amount for the estimated amount of work that the application may require for the board to reach a decision on the application. The bill would prohibit the board from requiring a separate application or fee for consumptive and nonconsumptive uses of diverted water.