Article 4. Water Replenishment Assessment of California Water Code >> Division 20. >> Part 5. >> Chapter 3. >> Article 4.

The provisions of this article apply only to districts in which the producers of a majority of the production of ground water within the boundaries of the district are or will within one year from the enactment of this article be subject to a court judgment requiring the delivery of makeup water to downstream users.

For the purpose of replenishing the ground water supplies within such district and to provide such makeup water, a district may cause assessments to be levied as provided in this article. Provided, that:
  (a) This article shall not apply to a district 80 percent of the area of which is included within the boundaries of a water replenishment district organized pursuant to Division 18 (commencing with Section 60000) of this code or 80 percent of the area of which is included within the boundaries of any other special district of any kind or type having replenishment powers and the power to levy an assessment on the ground water extractions.
  (b) This article shall cease to apply to a district as of the end of any water year during which 80 percent of the area thereof becomes included within the boundries of such a water replenishment district or any such other special district denoted in subdivision (a) of this section.

As used in this article: "Include," except when used in relation to the inclusion of land into a district, does not necessarily exclude matters not enumerated. "Person" means any public agency or public corporation, whether federal, state, or local, or any private corporation, firm, partnership, individual, or group of individuals and includes a district levying a water replenishment assessment hereunder. "Water year" means the period commencing on October 1st of one calendar year and ending on September 30th of the calendar year immediately following. "Fiscal year" means the period commencing on July 1st of one calendar year and ending on June 30th of the calendar year immediately following. "Ground water" means nonsaline water beneath the surface of the ground, whether or not flowing through known and definite channels. "Nonsaline water" means water which has less than 1,000 parts of chlorides to 1,000,000 parts of water. "Production" or "producing" means the extraction or extracting of ground water, by pumping or any other method, from shafts, tunnels, wells (including, but not limited to, abandoned oil wells), excavations, or other sources of such ground water, for domestic, municipal, irrigation, industrial, or other beneficial use, except that such terms shall not mean or include the extraction or extracting of ground water incidentally produced with oil in the production of oil or gas nor the extraction or extracting of ground water incidentally produced in a bona fide mining operation or in the bona fide construction of a tunnel for railroad, highway, aqueduct, pipeline, or other useful purpose (except the production of ground water for use or sale) unless the ground water so extracted shall be used or sold by the producer for domestic, municipal, irrigation, industrial, or other beneficial purpose. "Water-producing facility" means any device or method, mechanical or otherwise, for the production of ground water from the ground water supplies within the district. "Owner" means the person or persons owning any water-producing facility or any interest therein other than a lien to secure the payment of a debt or other obligation. "Operator" means the person or persons operating a water-producing facility; the owner thereof shall be conclusively presumed to be such operator unless satisfactory showing be made to the board of directors of the district that such water-producing facility actually is operated by some other person or persons. "Operator" shall mean any "person" mentioned in Section 71683 who is operating a water-producing facility, it being the purpose of this article to include any such person within the provisions hereof. "Producer" means any person or operator producing ground water within the boundaries of the district. "Annual overdraft" means the amount, as determined by the board, by which the quantity of ground water removed by any natural or artificial means from the ground water supplies within the district during the water year exceeds the quantity of nonsaline water replaced therein by the replenishment of such ground water supplies in such water year by any natural or artificial means other than replensihment under the provisions of this article or by any other governmental agency or entity. "Accumulated overdraft" means the aggregate amount, as determined from time to time by the board, by which the quantity of ground water removed by any natural or artificial means from the ground water supplies within the district during all preceding water years shall have exceeded the quantity of nonsaline water replaced therein by the replenishment of such ground water supplies in such water years by any natural or artificial means, the respective determination to be based upon reports, records, and other data or evidence found by the board to be adequate for the purpose of making such determination. "Makeup water" means water of useable quality for ground water recharge required to be delivered to downstream users pursuant to a court judgment.

Proceeds raised by the water replenishment assessments hereunder may only be used for the purchase of water for replenishment of the ground waters of the district and for the purchase, in whole or in part, of makeup water requirements.

Not later than the second Tuesday in February each year the board shall order an engineering survey and report to be made regarding the ground water supplies of the district. The same shall include, among all other information and data which the board may require, the following:
  (a) Records, data and other information for the consideration of the board in its determination of the annual overdraft.
  (b) Records, data and other information for the consideration of the board in its determination of the accumulated overdraft as of the last day of the preceding water year.
  (c) A report, with supporting data, as to the total production of ground water from the ground water supplies within the district during the preceding water year.
  (d) A report, with supporting data, as to the changes during the preceding water year in the ground water levels and pressure levels or piezometric heights of the ground water contained within pressure-level areas of the district, and as to the effects thereof upon the ground water supplies within the district.
  (e) An estimate of the annual overdraft for the current water year and for the ensuing water year.
  (f) An estimate of the accumulated overdraft as of the last day of the current water year.
  (g) An estimate of the total production of ground water from the ground water supplies within the district for the current water year and for the ensuing water year.
  (h) An estimate of the changes during the current water year in the ground water levels, pressure levels or piezometric heights of the ground water contained within pressure-level areas of the district, and of the effects thereof upon the ground water supplies and makeup water requirements of the district.
  (i) An estimate of the quantity, source, and cost of water available for replenishment of the ground water supplies and meeting the makeup water requirements of the district during the ensuing water year under the provisions of Section 71687.
  (j) Records, data, estimates and other information for the consideration of the board in its determination of the makeup water requirements for the preceding, current and ensuing water years.

On or before the second Tuesday in March of each year, and provided the survey and report called for by Section 71685 has been made, the board, by resolution, shall declare whether funds shall be raised to purchase water for replenishment and makeup water for the next ensuing water year pursuant to this article and whether the replenishment assessment will benefit, directly or indirectly, all of the persons or real property and improvements within the district.

If the board, by resolution, determines that the funds needed to purchase replenishment or makeup water shall be raised by the levy of a replenishment assessment, then the board shall immediately publish a notice that a public hearing will be held on the second Tuesday of April for the purpose of determining whether and to what extent the estimated cost of purchasing water for replenishment and makeup requirements for the ensuing water year shall be paid for by a replenishment assessment. Such notice shall contain a copy of the board's resolution, the time and place of the hearing, and an invitation to all interested parties to attend and be heard in support of or opposition to the proposed assessment, the engineering survey and report, and the board's determination, and shall invite inspection of the engineering survey and report upon which the board acted. The notice shall be published in each affected county pursuant to Section 6061 of the Government Code, at least 10 days before the hearing date.

The hearing shall be held before the board and a quorum shall be present. The hearing may be adjourned from time to time by the president or presiding officer or hearing officer but shall be completed by the first Tuesday in May next following.

The board may appoint a qualified registered engineer familiar with water problems as a hearing officer to conduct the hearing.

All evidence relevant to the engineering survey and report and the board's determination that such a replenishment assessment shall be levied may be introduced.

Upon completing the hearing, but no later than the second Tuesday in May, the board shall, by resolution, find:
  (a) The annual overdraft for the preceding water year.
  (b) The estimated annual overdraft for the current water year.
  (c) The estimated annual overdraft for the ensuing water year.
  (d) The accumulated overdraft as of the last day of the preceding water year.
  (e) The estimated accumulated overdraft as of the last day of the current water year.
  (f) The total production of ground water from the ground water supplies within the district during the preceding water year.
  (g) The estimated total production of ground water from the ground water supplies within the district for the current water year.
  (h) The estimated total production of ground water from the ground water supplies within the district for the ensuing water year.
  (i) The changes during the preceding water year in the ground water levels, pressure levels or piezometric heights of the ground water contained within pressure-level areas of the district, and the effects thereof upon the ground water supplies and makeup water requirements of the district.
  (j) The estimated changes during the current water year in the ground water levels, pressure levels or piezometric heights of the ground water contained within pressure-level areas of the district, and the estimated effects thereof upon the ground water supplies within the district.
  (k) The quantity of water which should be purchased for the replenishment of the ground water supplies and makeup water requirements of the district during the ensuing water year.
  (l) The source and estimated cost of water available for such replenishment and makeup water requirements.
  (m) The estimated costs of replenishing such ground water supplies and meeting makeup water requirements of the district with such water so purchased.
  (n) The estimated costs of purchasing, in water years succeeding the ensuing water year, that portion of the quantity of water which should be purchased for the replenishment of the ground water supplies and meeting the makeup water requirements of the district during the ensuing water year, but which is estimated to be unavailable for purchase during said ensuing water year; the estimated costs shall be based on the estimated price of water for replenishment and makeup purposes during the ensuing water year.
  (o) The estimated rate of the replenishment assessment required to be levied upon the production of ground water from the ground water supplies within the district during the ensuing fiscal year for the purposes of accomplishing such replenishment makeup water requirements and providing a reserve fund to purchase in future years, when available, that portion of the quantity of water which should be purchased for the replenishment of the ground water supplies and meeting the makeup water requirements of the district during the ensuing water year, but which is estimated to be unavailable for purchase during such ensuing water year.
  (p) That persons extracting in the aggregate in excess of 50 percent of the water which would be subject to the water replenishment assessment, based upon production during the preceding fiscal year, have not filed their written objections to a proposed water replenishment assessment for the next succeeding fiscal year. Without the specific finding required by this subdivision (p), no further steps shall be taken to establish such water replenishment assessment for the next succeeding fiscal year.

Based on such findings the board shall, by resolution, determine what portion, if any, of the estimated cost of purchasing water for replenishment and makeup for the ensuing fiscal year shall be paid for by a replenishment assessment, and what portion, not exceeding 25 percent of the said portion, of the estimated cost of purchasing in the future that quantity of water which should be purchased during the ensuing water year, but which is estimated to be unavailable during that year, should be raised by a replenishment assessment.

If the board determines that a replenishment assessment should be levied upon the production of ground water from ground water supplies within the district during the ensuing fiscal year, then immediately following the making of such determination the board shall levy a replenishment assessment on the production of ground water from the ground water supplies within the district during the fiscal year commencing on July 1st next, and such replenishment assessment shall be fixed by the board at a uniform rate per acre-foot of ground water so produced. The producers of such ground water shall pay such replenishment assessment to the district at the times and in the manner hereinafter in this article provided.

The district, after the levying of the replenishment assessment, shall give notice thereof to the operators of all water-producing facilities in the district as disclosed by the records of such district, which notice shall state the rate of replenishment assessment for each acre-foot of ground water to be produced during the ensuing fiscal year. The notice may be sent by postal card or by other first-class mail with postage prepaid by the district.

The operator of each water-producing facility within the district, on or before the last day of the month immediately following the respective quarterly periods ending March 31st, June 30th, September 30th, and December 31st of each year, shall file with the district a sworn statement setting forth the total production in acre-feet of ground water from such water-producing facility during the respective quarterly periods immediately preceding the filing of the respective statements, a general description or number locating such water-producing facility, and the method or basis of the computation of such ground water production. Each statement also shall contain such other information as the district may require. If the board by its resolution determines that additional reports or statements are necessary or useful to carry out the purposes of this article and to administer the replenishment of the ground water supplies and meet the makeup water requirements of the district, then the board shall by its resolution so declare and shall give notice of the adoption of the resolution by immediately publishing the same in each affected county pursuant to Section 6061 of the Government Code. Effective 30 days after such publication, the operator of each water-producing facility in such district shall file with the district the report or statement required by such resolution, at such times and in such manner and form as are provided in such resolution.

Any replenishment assessment levied pursuant to this article shall be due and payable to the district by each producer in quarterly installments on the last day for filing the statement of the production of ground water from the water-producing facility operated by such producer during the quarterly period required to be covered by such statement. The amount so due and payable shall be computed by multiplying the production in acre-feet of ground water so produced from such water-producing facility, as reported in such statement, by the rate of the replenishment assessment fixed and levied by the board for the fiscal year in which such production shall occur.

The board shall authorize, and the district shall make, refunds in whole or in part of replenishment assessments theretofore paid, to any producer who has erroneously overstated his production of ground water in any sworn statement for a quarterly period required under the provisions of Section 71688.1, and who has overpaid his replenishment assessment for that quarter, but only upon compliance by the producer with the procedure hereinafter set forth and within the time hereinafter provided. Any such producer, within one year of the last day for filing of the said sworn statement for the quarterly period in question, may file a verified application with the district on a form to be furnished by the district, containing such information as the district may require, requesting a refund of that portion of any replenishment assessment claimed to have been paid by reason of that producer's erroneous overstatement of ground water production. If incomplete information is contained in said application, or if the board desires other or further information than called for by that application, the same shall also be furnished by a verified statement within 30 days of mailing of written notice of request therefor to the producer at his address as shown by the district's records, or the application shall be deemed abandoned. Such request by the board shall not cause any application otherwise timely filed to be considered as not filed within said one-year period. The board may authorize, and the district may pay, any refund claimed without a hearing thereon, but no application shall be denied in whole or in part without a hearing being accorded to the applicant in which he shall have the burden of proof. Any determination by the board on any matter in connection with said application shall be final and conclusive upon the producer. Any refund authorized to be paid under the provisions of this section may be paid only out of moneys realized from replenishment assessments levied pursuant to Section 71687.2, then or thereafter raised. Upon election of the producer, any refund determined by the board to be owing may be credited to the producer against any subsequent replenishment assessments which might become due and owing from him. No refunds shall be made except as authorized by this section.

If any producer shall knowingly fail to pay a replenishment assessment within 30 days of when due, such producer shall become liable to the district for interest at the rate of 1 percent per month on the delinquent amount of the assessment.

Should any operator of a water-producing facility knowingly fail to register his water-producing facility or knowingly fail to file the ground water production statement, or knowingly fail to file and furnish any other reports or statements required by resolution of the board adopted pursuant to Section 71688.1, he shall, in addition to interest as provided in Section 71689, become liable to the district for a penalty of one hundred fifty dollars ($150).

The board, at the time of fixing the replenishment assessment rate, may provide by resolution that any producer operating a water-producing facility having a discharge opening not greater than two inches in diameter and providing ground water for domestic or irrigation uses on an area not exceeding one acre in extent, shall pay the amount fixed in such resolution as the replenishment assessment to be paid by such producer. No sworn statement as to the production of ground water from such water-producing facility need be filed.

(a) The superior court of the principal county may issue a temporary restraining order upon the filing by the district with the court of a verified petition or complaint setting forth that the person named therein as defendant is the operator of a water-producing facility which has not been registered with the district or that the defendant is delinquent in the payment of a replenishment assessment. The temporary restraining order shall be returnable to the court on or before 10 days after its issuance.
  (b) The court may issue and grant an injunction restraining and prohibiting the named defendant from the operation of any water-producing facility when it is established by the preponderance of the evidence at a hearing that the defendant has failed to register the water-producing facility with the district or that the defendant is delinquent in the payment of a replenishment assessment. The court may provide that the injunction so made and issued shall be stayed for a period not to exceed 10 days to permit the defendant to register the water-producing facility or to pay the delinquent replenishment assessment.
  (c) Service of process shall be made by posting a copy of the summons and complaint upon the water-producing facility or the parcel of land upon which the water-producing facility is located and by personal service of summons and complaint upon the named defendant.
  (d) The right to proceed for injunctive relief as provided in this section shall be in addition to any other right which may be provided elsewhere in this act or which may be otherwise allowed by law. The procedure provided in Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure regarding injunctions shall be followed except insofar as it may be otherwise provided in this section.

If the board shall have probable cause to believe that the production of ground water from any water-producing facility is in excess of that disclosed by the sworn statements covering such water-producing facility, or if no statements are filed covering a water-producing facility, the board may cause an investigation and report to be made concerning the production of ground water from such water-producing facility. The board may fix the amount of ground water production from any such water-producing facility at an amount not to exceed the maximum production capacity of such water-producing facility; provided, however, where a water-measuring device is permanently attached thereto, the record of production as disclosed by such water-measuring device shall be presumed to be accurate and the burden is upon the district to establish to the contrary. After such determination has been made by the board, a written notice thereof shall be mailed to the operator of such water-producing facility at his address as shown by the district's records. Any such determination made by the district shall be conclusive on the operator, and on any producer producing water from such water-producing facility, and the replenishment assessment based thereon, together with interest and penalties, shall be payable forthwith, unless such operator or producer shall file with the board of directors of the district within 10 days after the mailing of such notice a written protest setting forth the ground or grounds for protesting the amount of production so fixed or the replenishment assessment, interest, and penalties so levied thereon. Upon the filing of such protest, the board shall hold a hearing at which time the total amount of the ground water production and the replenishment assessment thereon shall be determined, and the interest and penalties fixed, which action shall be conclusive if based upon substantial evidence. A notice of such hearing shall be mailed to protestant at least 10 days before the date fixed for the hearing. Notice of the determination by the board shall be mailed to each protestant. The producer shall have 20 days from the date of mailing of such notice to pay the replenishment assessment, interest and penalties so fixed by the board.

The district may bring a suit in the court having jurisdiction against any producer of ground water from the ground water supplies within the district for the collection of any delinquent replenishment assessment, interest, or penalties. The court having jurisdiction of the suit may, in addition to any judgment, award interest and costs on any judgment as allowed by law.

It shall be unlawful to produce groundwater from any water-producing facility within any district from and after one year following the adoption of the resolution provided for in Section 71686 hereof, unless such water-producing facility shall have a water-measuring device affixed thereto capable of registering the accumulated amount of groundwater produced therefrom. The board by resolution may extend such date on a year-to-year basis upon its determination that availability, price of water-measuring devices, or other circumstances justify such extension. Should the date be extended, notice thereof shall be published in the district pursuant to Section 6066 of the Government Code, such publication to be completed not less than two months prior to the date so extended. This section shall not be applicable to any operator of a water-producing facility having a discharge opening two inches or less in diameter and providing groundwater for domestic or irrigation uses on an area not exceeding one acre in extent, who is required to pay a replenishment assessment in an amount fixed by resolution of the board of the district as hereinabove in this part provided. Violation of this section shall be punishable by a fine not to exceed one thousand dollars ($1,000), or by imprisonment in the county jail for not to exceed six months, or by both such fine and imprisonment. Each day of operation of a water-producing facility in violation hereof shall constitute a separate offense.

Following a final adjudication of all or substantially all of the rights to extract ground water and a determination of the natural safe yield of the ground water supplies within the district, and a determination of the amount or extent to which the rights to extract ground water so adjudicated may be exercised without exceeding the natural safe yield of such ground water supplies, the board shall recognize such judicial determination by exempting from replenishment assessments the amount of water pumped by each person whose rights have been so adjudicated which does not exceed his proportionate share of the natural safe yield of the ground water supplies of the district, as so adjudicated from time to time by the court having jurisdiction over such adjudication proceeding. The replenishment assessment shall thenceforth be levied on each producer by multiplying the production in acre-feet of ground water so produced by such producer's water-producing facility in excess of his said adjudicated share of the natural safe yield by the rate of the replenishment assessment fixed and levied by the board for the fiscal year in which such production shall occur.

To the extent that the replenishment assessment after adjudication hereunder shifts from all producers to those who extract water in excess of their respective shares of the natural safe yield of the ground water supplies within the district as so adjudicated, such replenishment assessment shall be deemed to benefit those persons who continue to pump and extract ground water in excess of their adjudicated shares of the natural safe yield. Inasmuch as such persons must buy supplemental water or be in contempt of the court's order limiting their extraction of ground water, they shall be deemed to benefit by the payment of a replenishment assessment which is used to purchase water to supplement the natural supplies of ground water available for use.

To the extent that ground water supplies are replenished under this article no person shall acquire any property or other right in the waters provided by the district for replenishment purposes.