Chapter 11. State Intervention of California Water Code >> Division 6. >> Part 2.74. >> Chapter 11.
As used in this chapter, the following terms have the
following meanings:
(a) "Condition of long-term overdraft" means the condition of a
groundwater basin where the average annual amount of water extracted
for a long-term period, generally 10 years or more, exceeds the
long-term average annual supply of water to the basin, plus any
temporary surplus. Overdraft during a period of drought is not
sufficient to establish a condition of long-term overdraft if
extractions and recharge are managed as necessary to ensure that
reductions in groundwater levels or storage during a period of
drought are offset by increases in groundwater levels or storage
during other periods.
(b) "Person" means any person, firm, association, organization,
partnership, business, trust, corporation, limited liability company,
or public agency, including any city, county, city and county,
district, joint powers authority, state, or any agency or department
of those entities. "Person" includes, to the extent authorized by
federal or tribal law and subject to the limitations described in
subdivisions (c) and (d) of Section 10720.3, the United States, a
department, agency or instrumentality of the federal government, an
Indian tribe, an authorized Indian tribal organization, or interstate
body.
(c) "Probationary basin" means a basin for which the board has
issued a determination under Section 10735.2.
(d) "Significant depletions of interconnected surface waters"
means reductions in flow or levels of surface water that is
hydrologically connected to the basin such that the reduced surface
water flow or levels have a significant and unreasonable adverse
impact on beneficial uses of the surface water.
(a) The board, after notice and a public hearing, may
designate a high- or medium-priority basin as a probationary basin,
if the board finds one or more of the following applies to the basin:
(1) After June 30, 2017, none of the following have occurred:
(A) A local agency has decided to become a groundwater
sustainability agency that intends to develop a groundwater
sustainability plan for the entire basin.
(B) A collection of local agencies has formed a groundwater
sustainability agency or prepared agreements to develop one or more
groundwater sustainability plans that will collectively serve as a
groundwater sustainability plan for the entire basin.
(C) A local agency has submitted an alternative that has been
approved or is pending approval pursuant to Section 10733.6. If the
department disapproves an alternative pursuant to Section 10733.6,
the board shall not act under this paragraph until at least 180 days
after the department disapproved the alternative.
(2) The basin is subject to paragraph (1) of subdivision (a) of
Section 10720.7, and after January 31, 2020, none of the following
have occurred:
(A) A groundwater sustainability agency has adopted a groundwater
sustainability plan for the entire basin.
(B) A collection of local agencies has adopted groundwater
sustainability plans that collectively serve as a groundwater
sustainability plan for the entire basin.
(C) The department has approved an alternative pursuant to Section
10733.6.
(3) The basin is subject to paragraph (1) of subdivision (a) of
Section 10720.7 and after January 31, 2020, the department, in
consultation with the board, determines that a groundwater
sustainability plan is inadequate or that the groundwater
sustainability program is not being implemented in a manner that will
likely achieve the sustainability goal.
(4) The basin is subject to paragraph (2) of subdivision (a) of
Section 10720.7, and after January 31, 2022, none of the following
have occurred:
(A) A groundwater sustainability agency has adopted a groundwater
sustainability plan for the entire basin.
(B) A collection of local agencies has adopted groundwater
sustainability plans that collectively serve as a groundwater
sustainability plan for the entire basin.
(C) The department has approved an alternative pursuant to Section
10733.6.
(5) The basin is subject to paragraph (2) of subdivision (a) of
Section 10720.7, and either of the following have occurred:
(A) After January 31, 2022, both of the following have occurred:
(i) The department, in consultation with the board, determines
that a groundwater sustainability plan is inadequate or that the
groundwater sustainability plan is not being implemented in a manner
that will likely achieve the sustainability goal.
(ii) The board determines that the basin is in a condition of
long-term overdraft.
(B) After January 31, 2025, both of the following have occurred:
(i) The department, in consultation with the board, determines
that a groundwater sustainability plan is inadequate or that the
groundwater sustainability plan is not being implemented in a manner
that will likely achieve the sustainability goal.
(ii) The board determines that the basin is in a condition where
groundwater extractions result in significant depletions of
interconnected surface waters.
(b) In making the findings associated with paragraph (3) or (5) of
subdivision (a), the department and board may rely on periodic
assessments the department has prepared pursuant to Chapter 10
(commencing with Section 10733). The board may request that the
department conduct additional assessments utilizing the regulations
developed pursuant to Chapter 10 (commencing with Section 10733) and
make determinations pursuant to this section. The board shall post on
its Internet Web site and provide at least 30 days for the public to
comment on any determinations provided by the department pursuant to
this subdivision.
(c) (1) The determination may exclude a class or category of
extractions from the requirement for reporting pursuant to Part 5.2
(commencing with Section 5200) of Division 2 if those extractions are
subject to a local plan or program that adequately manages
groundwater within the portion of the basin to which that plan or
program applies, or if those extractions are likely to have a minimal
impact on basin withdrawals.
(2) The determination may require reporting of a class or category
of extractions that would otherwise be exempt from reporting
pursuant to paragraph (1) of subdivision (c) of Section 5202 if those
extractions are likely to have a substantial impact on basin
withdrawals or requiring reporting of those extractions is reasonably
necessary to obtain information for purposes of this chapter.
(3) The determination may establish requirements for information
required to be included in reports of groundwater extraction, for
installation of measuring devices, or for use of a methodology,
measuring device, or both, pursuant to Part 5.2 (commencing with
Section 5200) of Division 2.
(4) The determination may modify the water year or reporting date
for a report of groundwater extraction pursuant to Section 5202.
(d) If the board finds that litigation challenging the formation
of a groundwater sustainability agency prevented its formation before
July 1, 2017, pursuant to paragraph (1) of subdivision (a) or
prevented a groundwater sustainability program from being implemented
in a manner likely to achieve the sustainability goal pursuant to
paragraph (2), (3), (4), or (5) of subdivision (a), the board shall
not designate a basin as a probationary basin for a period of time
equal to the delay caused by the litigation.
(e) The board shall exclude from probationary status any portion
of a basin for which a groundwater sustainability agency demonstrates
compliance with the sustainability goal.
(a) If the board designates a basin as a probationary
basin pursuant to paragraph (1), (2), or (4) of subdivision (a) of
Section 10735.2, a local agency or groundwater sustainability agency
shall have 180 days to remedy the deficiency. The board may appoint a
mediator or other facilitator, after consultation with affected
local agencies, to assist in resolving disputes, and identifying and
implementing actions that will remedy the deficiency.
(b) After the 180-day period provided by subdivision (a), the
board may provide additional time to remedy the deficiency if it
finds that a local agency is making substantial progress toward
remedying the deficiency.
(c) The board may develop an interim plan pursuant to Section
10735.8 for the probationary basin at the end of the period provided
by subdivision (a) or any extension provided pursuant to subdivision
(b), if the board, in consultation with the department, determines
that a local agency has not remedied the deficiency that resulted in
designating the basin as a probationary basin.
(a) If the board designates a basin as a probationary
basin pursuant to paragraph (3) or (5) of subdivision (a) of Section
10735.2, the board shall identify the specific deficiencies and
identify potential actions to address the deficiencies. The board may
request the department to provide local agencies, within 90 days of
the designation of a probationary basin, with technical
recommendations to remedy the deficiencies.
(b) The board may develop an interim plan pursuant to Section
10735.8 for the probationary basin one year after the designation of
the basin pursuant to paragraph (3) or (5) of subdivision (a) of
Section 10735.2, if the board, in consultation with the department,
determines that a local agency has not remedied the deficiency that
resulted in designating the basin a probationary basin.
(a) The board, after notice and a public hearing, may
adopt an interim plan for a probationary basin.
(b) The interim plan shall include all of the following:
(1) Identification of the actions that are necessary to correct a
condition of long-term overdraft or a condition where groundwater
extractions result in significant depletions of interconnected
surface waters, including recommendations for appropriate action by
any person.
(2) A time schedule for the actions to be taken.
(3) A description of the monitoring to be undertaken to determine
effectiveness of the plan.
(c) The interim plan may include the following:
(1) Restrictions on groundwater extraction.
(2) A physical solution.
(3) Principles and guidelines for the administration of rights to
surface waters that are connected to the basin.
(d) Except as provided in subdivision (e), the interim plan shall
be consistent with water right priorities, subject to Section 2 of
Article X of the California Constitution.
(e) The board shall include in its interim plan a groundwater
sustainability plan, or any element of a plan, that the board finds
complies with the sustainability goal for that portion of the basin
or would help meet the sustainability goal for the basin. Where, in
the judgment of the board, an adjudication action can be relied on as
part of the interim plan, either throughout the basin or in an area
within the basin, the board may rely on, or incorporate elements of,
that adjudication into the interim plan adopted by the board.
(f) In carrying out activities that may affect the probationary
basin, state entities shall comply with an interim plan adopted by
the board pursuant to this section unless otherwise directed or
authorized by statute and the state entity shall indicate to the
board in writing the authority for not complying with the interim
plan.
(g) (1) After the board adopts an interim plan under this section,
the board shall determine if a groundwater sustainability plan or an
adjudication action is adequate to eliminate the condition of
long-term overdraft or condition where groundwater extractions result
in significant depletions of interconnected surface waters, upon
petition of either of the following:
(A) A groundwater sustainability agency that has adopted a
groundwater sustainability plan for the probationary basin or a
portion thereof.
(B) A person authorized to file the petition by a judicial order
or decree entered in an adjudication action in the probationary
basin.
(2) The board shall act on a petition filed pursuant to paragraph
(1) within 90 days after the petition is complete. If the board, in
consultation with the department, determines that the groundwater
sustainability plan or adjudication action is adequate, the board
shall rescind the interim plan adopted by the board for the
probationary basin, except as provided in paragraphs (3) and (4).
(3) Upon request of the petitioner, the board may amend an interim
plan adopted under this section to eliminate portions of the interim
plan, while allowing other portions of the interim plan to continue
in effect.
(4) The board may decline to rescind an interim plan adopted
pursuant to this section if the board determines that the petitioner
has not provided adequate assurances that the groundwater
sustainability plan or judicial order or decree will be implemented.
(5) This subdivision is not a limitation on the authority of the
board to stay its proceedings under this section or to rescind or
amend an interim plan adopted pursuant to this section based on the
progress made by a groundwater sustainability agency or in an
adjudication action, even if the board cannot make a determination of
adequacy in accordance with paragraph (1).
(h) Before January 1, 2025, the state board shall not establish an
interim plan under this section to remedy a condition where the
groundwater extractions result in significant depletions of
interconnected surface waters.
(i) The board's authority to adopt an interim plan under this
section does not alter the law establishing water rights priorities
or any other authority of the board.
(a) The board shall adopt or amend a determination or
interim plan under Section 10735.2 or 10735.8 in accordance with
procedures for quasi-legislative action.
(b) The board shall provide notice of a hearing described in
subdivision (a) of Section 10735.2 or subdivision (a) of Section
10735.8 as follows:
(1) At least 90 days before the hearing, the board shall publish
notice of the hearing on its Internet Web site.
(2) At least 90 days before the hearing, the board shall notify
the department and each city, county, or city and county in which any
part of the basin is situated.
(3) (A) For the purposes of this paragraph, the terms
"board-designated local area" and "local agency" have the same
meaning as defined in Section 5009.
(B) At least 60 days before the hearing, the board shall mail or
send by electronic mail notice to all persons known to the board who
extract or who propose to extract water from the basin, or who have
made written or electronic mail requests to the board for special
notice of hearing pursuant to this part. If any portion of the basin
is within a board-designated local area, the records made available
to the board by the local agency in accordance with paragraph (4) of
subdivision (d) of Section 5009 shall include the names and addresses
of persons and entities known to the local agency who extract water
from the basin, and the board shall mail or send by electronic mail
notice to those persons.
(c) The board shall provide notice of proceedings to amend or
repeal a determination or plan under Section 10735.2 or 10735.8 as
appropriate to the proceedings, taking into account the nature of the
proposed revision and the person likely to be affected.
(d) (1) Except as provided in paragraphs (2) and (3), Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 2 of Title 2 of
the Government Code does not apply to any action authorized pursuant
to Section 10735.2 or 10735.8.
(2) The board may adopt a regulation in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 2 of Title
2 of the Government Code setting procedures for adopting a
determination or plan.
(3) The board may adopt a regulation applying or interpreting this
part pursuant to Section 1530 if the board determines that the
emergency regulation is reasonably necessary for the allocation,
administration, or collection of fees authorized pursuant to Section
1529.5.
Division 13 (commencing with Section 21000) of the Public
Resources Code does not apply to any action or failure to act by the
board under this chapter, other than the adoption or amendment of an
interim plan pursuant to Section 10735.8.
The extraction or use of water extracted in violation of
an interim plan under this part shall not be relied upon as a basis
for establishing the extraction or use of water to support a claim in
an action or proceeding for determination of water rights.
(a) The board may order a person that extracts or uses
water from a basin that is subject to an investigation or proceeding
under this chapter to prepare and submit to the board any technical
or monitoring program reports related to that person's or entity's
extraction or use of water as the board may specify. The costs
incurred by the person in the preparation of those reports shall bear
a reasonable relationship to the need for the report and the benefit
to be obtained from the report. If the preparation of individual
reports would result in a duplication of effort, or if the reports
are necessary to evaluate the cumulative effect of several diversions
or uses of water, the board may order any person subject to this
subdivision to pay a reasonable share of the cost of preparing
reports.
(b) (1) An order issued pursuant to this section shall be served
by personal service or registered mail on the party to submit
technical or monitoring program reports or to pay a share of the
costs of preparing reports. Unless the board issues the order after a
hearing, the order shall inform the party of the right to request a
hearing within 30 days after the party has been served. If the party
does not request a hearing within that 30-day period, the order shall
take effect as issued. If the party requests a hearing within that
30-day period, the board may adopt a decision and order after
conducting a hearing.
(2) In lieu of adopting an order directed at named persons in
accordance with the procedures specified in paragraph (1), the board
may adopt a regulation applicable to a category or class of persons
in accordance with Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 2 of Title 2 of the Government Code.
(c) Upon application of a person or upon its own motion, the board
may review and revise an order issued or regulation adopted pursuant
to this section in accordance with the procedures set forth in
subdivision (b).
(d) In conducting an investigation or proceeding pursuant to this
part, the board may inspect the property or facilities of a person to
ascertain whether the purposes of this part are being met and to
ascertain compliance with this part. The board may obtain an
inspection warrant pursuant to the procedures set forth in Title 13
(commencing with Section 1822.50) of Part 3 of the Code of Civil
Procedure for the purposes of an inspection pursuant to this
subdivision.