1. (a) Diversion and use described in this section under any valid basis of right may continue after issuance of a curtailment order under this article without further approval from the Deputy Director, subject to the conditions set forth in this section. Any diverter wishing to continue diversion under this subdivision must submit to the Deputy Director a certification which describes the non-consumptive use and explains, with supporting evidence, how the diversion and use do not decrease downstream flows in the applicable watershed. The Deputy Director may request additional information or disapprove any certification if the information provided is insufficient to support the statement or if more convincing evidence contradicts the claims. If a certification submitted pursuant to this section is disapproved, the diversions are subject to any curtailment order issued for that right. Exceptions to curtailment under this section apply to:

   1. (1) Direct surface diversions solely for hydropower if discharges are returned to the stream from which they are withdrawn, and water is not held in storage.
   2. (2) Direct surface water or groundwater diversions dedicated to instream uses for the benefit of fish and wildlife pursuant to Water Code section 1707, including those diversions that divert water to a different location for subsequent release. This subdivision only applies where the location of release is hydraulically connected to the basin or watershed from which it was withdrawn.
   3. (3) Direct surface water or groundwater diversions where the Deputy Director, the California Department of Fish and Wildlife, and the Executive Officer of the North Coast Regional Water Quality Control Board have approved a substitution of releases of either stored water or groundwater into the Scott River or Shasta River or a tributary thereof for the benefit of fish and wildlife such that there is not anticipated to be a measurable net decrease in stream flow as a result of the diversion at the confluence of the tributary with the mainstem of the Scott River or Shasta River, or the next downstream United States Geological Survey gage, as applicable. The release of water does not have to be conducted by the owner of the water right proposed for the continued diversions, provided an agreement between the water right holder and the entity releasing the water is included in the proposal. The party proposing the substitution of releases shall provide documentation supporting no measurable decrease in stream flow is anticipated as a result of the release of water. The Deputy Director may require reporting and monitoring as part of any approval.
   4. (4) Other direct diversions solely for non-consumptive uses upon a demonstration that the diversion and use do not decrease downstream flow.

Note: Authority cited: Sections 1058 and 1058.5, Water Code. Reference: Cal. Const., Art. X, § 2; and Sections 100, 187, 275 and 348, Water Code.

History

1. New section filed 2-1-2024 as an emergency; operative 2-1-2024 (Register 2024, No. 5). The finding of emergency was exempt from OAL review pursuant to Water Code section 1058.5(b). Pursuant to Water Code section 1058.5(c), a Certificate of Compliance must be transmitted to OAL by 1-31-2025 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 2023, No. 34.

2. New section refiled 1-27-2025 as an emergency; operative 1-27-2025 (Register 2025, No. 5). The finding of emergency was exempt from OAL review pursuant to Water Code section 1058.5(b). Pursuant to Water Code section 1058.5(c), a Certificate of Compliance must be transmitted to OAL by 1-26-2026 or emergency language will be repealed by operation of law on the following day.