Issue Date: October 12, 2016

By Christine Souza, California Farm Bureau Federation

New requirements for measuring and reporting surface water diversions take effect Jan. 1, bringing farmers and ranchers to a pair of workshops in Sacramento to ask questions about the new rules. Compliance will be phased in during the next year, depending on the size of the diversion.

The State Water Resources Control Board developed the regulations after the Legislature passed Senate Bill 88 last year. The law requires all surface water right holders and claimants to report their diversions annually. The Sacramento County Farm Bureau organized the workshops last week at the California Farm Bureau Federation offices.

CFBF Director of Water Resources Danny Merkley said that under the new law, those who divert water must be able to monitor and report the amount of the diversion, with differing requirements depending on the volume of water diverted.

“At the end of the day, everybody who has the right to divert surface water, without exception, has to report annually what they diverted each month of the prior calendar year,” Merkley said. “Even if you diverted zero, you have to report zero.”

Water users diverting more than 10 acre-feet of water per year must measure their diversions with devices or methods capable of meeting regulatory requirements, including monthly, weekly, daily or hourly measurements, depending on the amount of water diverted. Merkley said the monitoring and reporting may ultimately help to substantiate water rights.

“In some instances, some observers have said that better data can help the water board make more precise decisions about curtailment, so they may be able to make decisions that won’t curtail as many people,” he said. “Additionally, this will help prove that not everybody is diverting the full amount of their right all of the time. This will show how much water we are really using, instead of the inflated numbers cited by some environmental advocates. However, we question whether the water board can manage this volume of data in a timely manner.”

The two workshops included one for water diverters in the Sacramento-San Joaquin Delta, led by Delta Watermaster Michael George, and another for those outside of the delta, led by Merkley and CFBF Associate Counsel Jack Rice, with representatives from the water board.

George said SB 88 resulted from difficulty in managing and administering the state’s priority water system during the 2014-15 drought. SB 88 does not tell diverters how to achieve its objective, George said, but states the diversion must be measured within plus or minus 10 percent accuracy.

The way the law and regulation read, he said, diverters who don’t file reports are considered not to have used the water.

“If you go without exercising that water right for five years, it is subject to being lost,” George said. “Reporting your use is important to protecting your long-term water right.”

George clarified that riparian water right holders using water reasonably and beneficially cannot lose their right to a share of available “natural flow,” but must still comply with the new regulations.

To comply with the regulation, George said, most diverters in the delta are installing a measurement device on their diversion, whether it is a pump, siphon or meter. Farmers were told to purchase a device from a company that can be responsible to the diverter for meeting the accuracy standard.

Under the regulations, water users will be required to measure water diversions frequently, depending on the amount diverted, but will typically only report monthly totals once a year. But when the state water board declares a water shortage, it may require water users to report use at the same frequency they measure it.

Jane Ann Klotz, a delta farmer in Yolo County, expressed concern the new regulation would be burdensome and costly. “You are going to have to figure out a way, if you want to stay in business,” she said. “The other side of the coin is, maybe you don’t stay in business.”

In situations where it is impossible to install a measurement device or where several neighbors share a single point of diversion, George said, neighboring diverters can develop a method that works for the group. “All we ask is that there is a written agreement at that point of diversion about how they will allocate water among themselves,” he said.

In some instances, George said, he has seen cases where people have invested in changing points of diversion, such as reducing from three points to one point of diversion or installing upgraded equipment.

Chris Frieders, who grows pears in Courtland, said the workshop answered his technical questions.

“I have a shared diversion point with my neighbors, and I did not realize that as long as we have a written agreement on how our water is being used, we can have a measurement device with multiple users on the same diversion,” Frieders said.

For rare circumstances where it is impossible to install a meter or a pump and report diversion and use with one of the measurement methods, the option exists for going to an alternative compliance plan but, George said, “This is only for a diverter that has truly unique circumstances.”

He explained that if any compliance deficiencies are found, his office would likely start with a discussion, rather than a fine or a cease-and-desist order.

George said SB 88 provides authority to request an extension of time to be in compliance for “good cause”; however, he urged, “don’t wait until the last minute.” The regulation carries “very significant civil fines for failure to comply,” he said, adding that “collecting the civil fines is the last thing I want to do. We are still in a drought, so if we don’t get a lot of rain next year we could be in a position of managing in a shortage as early as next March,” George said.

New to farming, Mark Ogden has agricultural land in Redding and attended the meeting to learn how to protect his water rights, which date back to 1861. “I want to make sure that we are in compliance. I’m learning so I don’t get in trouble with the state of California,” Ogden said.

Learn more about the regulations at www.waterboards.ca.gov/waterrights/water_issues; use the link for Water Use Reports & Measurement.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)