Legal Alerts Oct 16, 2019

Groundwater Recharge Projects Get Boost Under AB 658

New California Law to Help Achieve SGMA Requirements

Groundwater Recharge Projects Get Boost Under AB 658

Assembly Bill 658, signed into law last week, creates new temporary diversion permits allowing for excess surface water capture during high-flow events. Permits automatically expire after 180 days, unless renewed. The law is designed, in part, to encourage groundwater recharge projects that could assist groundwater sustainability agencies and other local agencies to achieve groundwater sustainability requirements under the Sustainable Groundwater Management Act, known as SGMA.
 
AB 658 establishes two new or modified types of permits that the State Water Resources Control Board may issue: temporary permits for diversion to underground storage and temporary urgency permits. It also authorizes the Board to issue temporary change orders for existing permits and licenses, including for underground storage.
 
Under the new law, groundwater sustainability or local agencies may apply to the Board for a temporary permit for diversion to underground storage. This is provided that the diversion is for the beneficial use of achieving the agency’s groundwater sustainability goal under SGMA. The applying agency does not need to have an existing permit or license to divert surface water to obtain a temporary diversion permit. Similarly, any person with an “urgent need” may apply to the Board for a temporary urgency permit to divert excess surface waters.
 
Before issuing a temporary permit to divert water to underground storage, the Board must make five general findings:

  1. the diversion is to underground storage for the beneficial use of achieving a groundwater sustainability agency’s goal under SGMA,
  2. the diversion will not interfere with other lawful water users’ rights, including a user’s ability to meet water quality objectives,
  3. the diversion does not unreasonably affect fish, wildlife or other instream beneficial uses,
  4. the diversion is in the public interest and
  5. the diversion will comply with any existing groundwater sustainability plan, interim plan or alternative plan that may apply to the groundwater basin where the diverted water will be stored.

Any proposed diversion may not exceed the claims of downstream users, and instream flow requirements and water quality objectives will need to be met downstream of the diversion. Notably, extraction of stored groundwater under the permit must be accounted for and reported pursuant to an existing groundwater sustainability plan, interim plan, alternative plan or conditions imposed by the Board under the permit. 
 
In applying for a permit, an agency must satisfy several criteria, including:

  • completing environmental review required by the California Environmental Quality Act, unless an exemption applies,
  • consulting with the Department of Fish and Wildlife at least 30 days before submitting the application,
  • performing a water availability analysis and
  • providing an accounting method for storage and extraction under the permit.


AB 658 provides groundwater sustainability agencies and local agencies with added flexibility in groundwater sustainability planning, and options and risks should be carefully considered.
 
For more information about this new law and how it may impact your agency, contact the author of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group or your BB&K attorney.
 
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