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

(a) (1) A local or regional agency that has adopted a local plan of flood control pursuant to Section 8201 or has considered flood risk as part of its most recently adopted general plan has given notice via its internet website, electronic distribution list, emergency notification service, or another means of public notice, that flows downstream of the point of diversion are at imminent risk of flooding and inundation of land, roads, or structures.

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

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

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

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

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

(3) As used in this subdivision, “imminent” means a high degree of confidence that a condition will begin in the immediate future.

(b) The diversions cease when the flood conditions described in the public notice provided pursuant to subdivision (a) have abated to the point there is no longer a risk of flooding and inundation of land, roads, or structures downstream of the point of diversion.

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

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

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

(A) The board.

(B) The appropriate regional board.

(C) An agricultural coalition charged with implementation of the Irrigated Lands Regulatory Program.

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

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

(d) With respect to diversions from water tributaries to the Sacramento-San Joaquin Delta (Delta), water rights holders are not making releases of stored water or reoperating facilities to provide flow for the purposes of meeting water quality control plan or endangered species requirements in the Delta at the time of the diversion.

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

(1) Either existing diversion infrastructure or temporary pumps.

(2) Existing groundwater recharge locations, where available.

(3) No new permanent infrastructure or permanent construction.

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

(f) The person or entity making the diversion for groundwater recharge does not claim any water right based on that diversion and recharge.

(g) (1) The person or entity making the diversion for groundwater recharge files all of the following with the board and with any applicable groundwater sustainability agency, as defined in Section 10721, for the basin:

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

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

(C) A final report no later than 15 days after diversions cease.

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

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

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

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

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

(h) This section shall only apply to diversions commenced before January 1, 2029.

(Added by Stats. 2023, Ch. 51, Sec. 25. (SB 122) Effective July 10, 2023.)