Cal. Code Regs. tit. 23 § 5001

Current through Register 2024 Notice Reg. No. 43, October 25, 2024

Section 5001 - Definitions

As used in this division, the terms listed below shall have the meanings noted:

(a) "Adaptive management" means a framework and flexible decision-making process for ongoing knowledge acquisition, monitoring, and evaluation leading to continuous improvement in management planning and implementation of a project to achieve specified objectives.

(b) "Agricultural water management plan" means a plan prepared, adopted, and updated by an agricultural water supplier pursuant to the Agricultural Water Management Planning Act, Water Code section 10800 et seq.

(c) "Agricultural water supplier" under the Water Code refers to both agricultural retail water suppliers and agricultural wholesale water suppliers, but not the California Department of Water Resources or the United States Bureau of Reclamation, and includes both of the following:

(1) A water supplier, either publicly or privately owned, providing water to 10,000 or more irrigated acres, excluding recycled water; and

(2) A water supplier or contractor for water, regardless of the basis of the water right, that distributes or sells water for ultimate resale to customers.

(d) "Base Flood" means the flood that has a 1-percent probability of being equaled or exceeded in any given year (also referred to as the 100-year flood).

(e) "Base Flood Elevation" (BFE) means the water surface elevation associated with the base flood.

(f) "Best available science" means the best scientific information and data for informing management and policy decisions. Best available science shall be consistent with the guidelines and criteria found in Appendix 1A.

(g) "Central Valley Flood Protection Board" or "Board" means the Central Valley Flood Protection Board (formerly The Reclamation Board) of the Resources Agency of the State of California as provided in Water Code section 8521.

(h) "Certifying agency" means, for purposes of article 5, a State or local public agency that proposes to undertake a covered action.

(i) "Coequal goals" means the two goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. The coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place. In addition, "achievement" for the purpose of determining whether a plan, program, or project meets the definition of a "covered action" under section 5001(k) is further defined as follows:

(1) "Achieving the coequal goal of providing a more reliable water supply for California" means all of the following:

(A) Better matching the state's demands for reasonable and beneficial uses of water to the available water supply. This will be done by promoting, improving, investing in, and implementing projects and programs that improve the resiliency of the state's water systems, increase water efficiency and conservation, increase water recycling and use of advanced water technologies, improve groundwater management, expand storage, and improve Delta conveyance and operations. The evaluation of progress toward improving reliability will take into account the inherent variability in water demands and supplies across California;

(B) Regions that use water from the Delta watershed will reduce their reliance on this water for reasonable and beneficial uses, and improve regional self-reliance, consistent with existing water rights and the State's area-of-origin statutes and Reasonable Use and Public Trust Doctrines. This will be done by improving, investing in, and implementing local and regional projects and programs that increase water conservation and efficiency, increase water recycling and use of advanced water technologies, expand storage, improve groundwater management, and enhance regional coordination of local and regional water supply development efforts; and

(C) Water exported from the Delta will more closely match water supplies available to be exported, based on water year type and consistent with the coequal goal of protecting, restoring, and enhancing the Delta ecosystem. This will be done by improving conveyance in the Delta and expanding groundwater and surface storage both north and south of the Delta to optimize diversions in wet years when more water is available and conflicts with the ecosystem are less likely, and limit diversions in dry years when conflicts with the ecosystem are more likely. Delta water that is stored in wet years will be available for water users during dry years, when the limited amount of available water must remain in the Delta, making water deliveries more predictable and reliable. In addition, these improvements will decrease the vulnerability of Delta water supplies to disruption by natural disasters, such as, earthquakes, floods, and levee failures.

(2) "Achieving the coequal goal of protecting, restoring, and enhancing the Delta ecosystem" means successfully establishing a resilient, functioning estuary and surrounding terrestrial landscape capable of supporting viable populations of native resident and migratory species with diverse and biologically appropriate habitats, functional corridors, and ecosystem processes.

(3) "Achieving the coequal goals in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place" means accepting that change, including change associated with achieving the coequal goals, will not cease, but that the fundamental characteristics and values that contribute to the Delta's special qualities and that distinguish it from other places can be preserved and enhanced while accommodating these changes. In this regard, the following are core strategies for protecting and enhancing the unique values that distinguish the Delta and make it a special region:

(A) Designate the Delta as a special place worthy of national and state attention;

(B) Plan to protect the Delta's lands and communities;

(C) Maintain Delta agriculture as a primary land use, a food source, a key economic sector, and a way of life;

(D) Encourage recreation and tourism that allow visitors to enjoy and appreciate the Delta and that contribute to its economy;

(E) Sustain a vital Delta economy that includes a mix of agriculture, tourism, recreation, related industries and business, and vital components of state and regional infrastructure; and

(F) Reduce flood and other risks to people, property, and other interests in the Delta.

(j) "Commercial recreational visitor-serving uses" means a land use designation that describes visitor-serving uses, accommodations, restaurants, and shops, that respect the rural character and natural environmental setting. These uses also include campgrounds and commercial recreational facilities.

(k)

(1) "Covered action" means a plan, program, or project that meets all of the following criteria (which are collectively referred to as covered action screening criteria):

(A) Is a "project," as defined pursuant to section 21065 of the Public Resources Code;

(B) Will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh;

(C) Will be carried out, approved, or funded by the State or a local public agency;

(D) Will have a significant impact on achievement of one or both of the coequal goals or the implementation of government-sponsored flood control programs to reduce risks to people, property, and State interests in the Delta; and

(E) Is covered by one or more provisions of the Delta Plan, which for these purposes, means one or more of the regulatory policies contained in Article 3.

(2) "Covered action" does not include any plan, program, or project that is exempted pursuant to Water Code section 85057.5(b).

(3) A State or local public agency that proposes to carry out, approve, or fund a plan, program, or project that may be subject to this Chapter must determine whether that proposed plan, program, or project is a covered action. That determination, which is subject to judicial review, must be reasonable, made in good faith, and consistent with the Delta Reform Act and this Chapter.

(4) Nothing in the application of the definition of a "covered action" shall be interpreted to authorize the abrogation of any vested right whether created by statute or by common law.

(l) "Delta" means the Sacramento-San Joaquin Delta as defined in section 12220 of the Water Code and the Suisun Marsh, as defined in section 29101 of the Public Resources Code.

(m) "Delta Plan" means the comprehensive, long-term management plan for the Delta to further the achievement of the coequal goals, as adopted by the Delta Stewardship Council in accordance with the Sacramento-San Joaquin Delta Reform Act of 2009.

(n) "Designated Floodway" means those floodways, as defined in California Code of Regulations, Title 23, section 4(i), under the jurisdiction of the Central Valley Flood Protection Board.

(o) "Encroachment" means any obstruction or physical intrusion by construction of works or devices, planting or removal of vegetation, or by any means for any purpose, into or otherwise affecting a floodway or floodplain.

(p) "Enhancement" or "enhancing," for purposes of section 5001(i)(2), means improving existing desirable habitat and natural processes. Enhancement may include, by way of example, flooding the Yolo Bypass more often to support native species or to expand or better connect existing habitat areas. Enhancement includes many fish and wildlife management practices, such as managing wetlands for waterfowl production or shorebird habitat, installing fish screens to reduce entrainment of fish at water diversions, or removing barriers that block migration of fish to upstream spawning habitats.

(q) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.

(r) "Floodplain" means any land area susceptible to being inundated by flood waters from any source.

(s) "Floodplain values and functions" has the same meaning as set forth in 33 Code of Federal Regulations section 320.4(l)(1).

(t) "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments appropriate for residential structures, which reduce or eliminate risk of flood damage to real estate, improved real property, or structures with their contents.

(u) "Floodway" means the portion of the floodplain that is effective in carrying flow (that is, the channel of a river or other watercourse and the adjacent land areas that convey flood waters).

(v) "Government-sponsored flood control program to reduce risks to people, property, and State interests in the Delta" means any State or federal strategy, project, approval, funding, or other effort that is intended to reduce the likelihood and/or consequences of flooding of real property and/or improvements, including risks to people, property, and State interests in the Delta, that is carried out pursuant to applicable law, including, but not limited to the following:

(1) State Water Resources Law of 1945, Water Code section 12570 et seq.;

(2) Sacramento-San Joaquin River Flood Control Projects (Flood Control Act of 1941, P.L. 77-228);

(3) Local Plans of Flood Protection prepared pursuant to the Local Flood Protection Planning Act (Water Code section 8200 et seq.), that are consistent with the Central Valley Flood Protection Plan pursuant to Water Code section 9612;

(4) Central Valley Flood Protection Plan (Water Code section 9600 et seq.);

(5) Subventions Program, Special Projects Program (Water Code section 12300 et seq.);

(6) Way Bill 1973-Subventions Program, Special Projects Program (Water Code section 12980 et seq.);

(7) Central Valley Flood Protection Board Authority (California Code of Regulations, Title 23, Division 1); and

(8) National Flood Insurance Program (National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., P.L. 90-448).

(w) "High Priority islands or tracts" means the tracts of land listed under "High Priority" in the Table (Delta Levees Investment Strategy Priorities) of Section 5012 of this title and depicted in Appendix P to the Delta Plan.

(x) "Levee improvement" means any activity that is not levee operation and maintenance, and that is intended to reduce the probability of flooding or the addition of a feature that did not previously exist. Examples of levee improvements include changing levee geometry to reach a higher level of protection, providing riprap where none previously existed, and other similar activities.

(y) "Levee operation and maintenance" means any activity to retain or maintain the intended functions of flood control facilities and of existing encroachments or needed to keep the system functioning properly. Examples of maintenance activities include mowing, tree and brush trimming and removal, revetment restoration, rodent control, spraying, painting, coating, patching, burning, and other similar activities but does not include any significant excavation or any excavation during flood season.

(z) "Nonnative invasive species," for purposes of section 5009, means species that establish and reproduce rapidly outside of their native range and may threaten the diversity or abundance of native species through competition for resources, predation, parasitism, hybridization with native populations, introduction of pathogens, or physical or chemical alteration of the invaded habitat.

(aa) "Nonproject levee" means a local levee owned or maintained by a local agency or private owner that is not a project facility under the State Water Resources Law of 1945, Chapter 1 (commencing with Water Code section 12570) and Chapter 2 (commencing with section 12639 of Part 6 of the Water Code).

(bb) "Other Priority islands or tracts" means the tracts of land listed under "Other Priority" in the Table (Delta Levees Investment Strategy Priorities) of Section 5012 of this title and depicted in Appendix P to the Delta Plan.

(cc) "Person" means, for purposes of article 5, any person, firm, association, organization, partnership, business trust, corporation, limited liability company, or company, and state or local public agency.

(dd) "Project levee" means a federal flood control levee that is a project facility under the State Water Resources Law of 1945, Chapter 1 (commencing with Water Code section 12570) and Chapter 2 (commencing with section 12639 of Part 6 of the Water Code).

(ee) "Proposed action" means a plan, program, or project that meets the covered action screening criteria listed in section 5001(k)(1)(A) through (D). Proposed action is also a "covered action," and therefore subject to compliance with the regulatory policies contained in Articles 2 and 3-if the proposed action meets the covered action screening criterion listed in section 5011(k)(1)(E).

(ff) "Protection" or "protecting," for purposes of section 5001(i)(2), means preventing harm to the ecosystem, which could include preventing the conversion of existing habitat, the degradation of water quality, irretrievable conversion of lands suitable for restoration, or the spread of invasive nonnative species.

(gg) "Regulated stream" means those streams identified in Table 8.1 of California Code of Regulations, Title 23, section 112, under the jurisdiction of the Board.

(hh) "Restoration" or "restoring," for purposes of section 5001(i)(2), has the same meaning as in Water Code section 85066. Restoration actions may include restoring interconnected habitats within the Delta and its watershed, restoring more natural Delta flows, or improving ecosystem water quality.

(ii) "Setback levee" means a new levee constructed behind an existing levee which allows for removal of a portion of the existing levee and creation of additional floodplain connected to the stream. In the Delta, a "setback levee" may not necessarily result in removal of the existing levee.

(jj) "Significant impact" for the purpose of determining whether a project meets the definition of a "covered action" under section 5001(k)(1)(D) means a substantial positive or negative impact on the achievement of one or both of the coequal goals or the implementation of a government-sponsored flood control program to reduce risks to people, property, and State interests in the Delta, that is directly or indirectly caused by a project on its own or when the project's incremental effect is considered together with the impacts of other closely related past, present, or reasonably foreseeable future projects. The following categories of projects will not have a significant impact for this purpose:

(1) "Ministerial" projects exempted from CEQA, pursuant to Public Resources Code section 21080(b)(1);

(2) "Emergency" projects exempted from CEQA, pursuant to Public Resources Code section 21080(b)(2) through (4);

(3) Temporary water transfers of up to one year in duration.

(4) Other projects exempted from CEQA, unless there are unusual circumstances indicating a reasonable possibility that the project will have a significant impact under Water Code section 85057.5(a)(4), as further defined by this section. Examples of unusual circumstances could arise in connection with, among other things:

(A) Local government general plan amendments for the purpose of achieving consistency with the Delta Protection Commission's Land Use and Resource Management Plan; and

(B) Small-scale habitat restoration projects, as referred to in CEQA Guidelines, section of Title 1415333 of Title 14 of the California Code of Regulations, proposed in important restoration areas, but which are inconsistent with the Delta Plan's policy related to appropriate habitat restoration for a given land elevation (section 5006 of this Chapter).

(kk) "Very-High Priority islands or tracts" means the tracts of land identified under "Very-High Priority" in the Table (Delta Levees Investment Strategy Priorities) of Section 5012 of this title and depicted in Appendix P to the Delta Plan.

(ll) "Urban area" means a developed area in which there are 10,000 residents or more.

(mm) "Urbanizing area" means a developed area or an area outside of a developed area that is planned or anticipated to have 10,000 residents or more within the next 10 years.

(nn) "Urban water management plan" means a plan prepared, adopted, and updated by an urban water supplier pursuant to the Urban Water Management Planning Act, Water Code section 10610 et seq.

(oo) "Urban water supplier" refers to both "urban retail water suppliers" and "urban wholesale water suppliers":

(1) "Urban retail water supplier" means a water supplier, either publicly or privately owned, that directly provides potable municipal water to more than 3,000 end users or that supplies more than 3,000 acre-feet of potable water annually at retail for municipal purposes.

(2) "Urban wholesale water supplier" means a water supplier, either publicly or privately owned, that provides more than 3,000 acre-feet of potable water annually at wholesale for municipal purposes.

(pp) "Water supplier" refers to both "urban water suppliers" and "agricultural water suppliers," but for purposes of section 5003, does not include agricultural water suppliers during the time that they may be exempted by section 10853 of the Water Code from the requirements of Parts 2.55 and 2.8 of Division 6 of the Water Code.

Cal. Code Regs. Tit. 23, § 5001

Note: Authority cited: Sections 85210, 85225.30 and 85306, Water Code. Reference: Sections 10608.12, 10853, 85020, 85052, 85054, 85057.5, 85058, 85059, 85066, 85300, 85302 and 85308, Water Code.

1. New chapter 2 (articles 1-4, sections 5001-5016 and appendices 1A-8), article 1 (section 5001) and section filed 8-7-2013; operative 9-1-2013 pursuant to Government Code section 11343.4(b)(3)(Register 2013, No. 32).
2. Amendment of subsection (dd)(3) filed 11-22-2016; operative 1/1/2017 (Register 2016, No. 48).
3. New subsections (v)-(x), (bb) and (jj), subsection relettering and amendment of NOTE filed 9-21-2023; operative 1/1/2024 (Register 2023, No. 38).
4. New subsection (h), subsection relettering, amendment of newly designated subsections (i) and (p), new subsection (cc), subsection relettering, amendment of newly designated subsections (ee), (ff), (hh) and (jj) and amendment of NOTE filed 1-24-2024; operative 1/24/2024 pursuant to Water Code section 85225.30. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2024, No. 4).