Commentary: Guide helps farmers navigate water reporting rules

Issue Date: May 3, 2017
By Jack Rice and Danny Merkley
Jack Rice
Danny Merkley
A six-page guide from Farm Bureau explains water reporting rules established by Senate Bill 88, and includes a worksheet to help individuals gather information about water rights and relevant requirements.
Graphic Design/Joanna Smith

New Surface Water Measurement and Reporting Regulations from the state government impose additional requirements on water users. For farmers and ranchers with remote or complicated diversions, compliance can be particularly difficult and expensive. Farm Bureau wants to help.

Visit a county Farm Bureau office and pick up a copy of our Compliance Guide for Surface Water Measurement and Reporting.

Recognizing both the difficulties of understanding the regulatory requirements and the importance of compliance to avoid penalties, Farm Bureau developed the Compliance Guide as a resource for farmers and ranchers. The six-page guide explains the rules in a set of clear charts, and includes a worksheet to help keep track of information about an individual's water right and relevant requirements.

Farm Bureau continues to advocate vigorously for more reasonable measurement and reporting rules, but we also want to help our members understand the new requirements.

Water users have been required to report their diversion and use of water since 1966, although until 2009 there were no penalties associated with failing to report. This changed in 2009 with passage of a package of water bills that, among other things, added significant penalties for water users who failed to report their diversions.

Though the addition of penalties did result in greater compliance, during the recent drought the State Water Resources Control Board identified a new set of concerns. As flows decreased and the board began issuing curtailment orders, the board argued that the water use information in the current reports was not accurate or timely enough to know when there was enough water for various right holders—and, consequently, when junior rights holders should be notified there was not enough water for them.

The result was Senate Bill 88 of 2015, requiring the water board to adopt regulations requiring more frequent and more accurate measurement and reporting. As a budget trailer bill, SB 88 did not go through the normal policy committee hearing process, limiting opportunity for water users to explain the practical problems with the bill. Despite Farm Bureau's strong opposition, SB 88 was adopted and the state board began writing the new regulations.

Farm Bureau again argued for reasonableness as the board developed the regulatory language. Unfortunately, SB 88 declared the Surface Water Measurement and Reporting Regulations to be "emergency regulations," which have a significantly abbreviated regulatory process, with little opportunity to identify the practical problems with compliance. Farm Bureau and other water users' representatives were still able to identify significant concerns, but the board did not substantially modify the draft regulations to address those issues.

The regulations require water users to measure water more accurately and to report their diversions more frequently. Specific requirements vary depending on the size of the diversion, with larger diversions needing more accurate and frequent measurement and reporting than smaller diversions.

The new measurement rules require a device capable of a specific accuracy for all diversions greater than 10 acre-feet a year. This device must record measurements on an increasing frequency, up to hourly for diversions of greater than 1,000 acre-feet a year. It is now mandatory for all diversions to report their water use each year through an online reporting system. The water board may require more-frequent reporting when there is a water shortage.

The deadlines for compliance also vary, depending on the size of the diversion. For diversions of greater than 1,000 acre-feet a year, devices were to have been installed by Jan. 1, 2017, and reported this year. For diversions of between 100 acre-feet and 1,000 acre-feet a year, devices must be installed by July 1.

There are special provisions providing some flexibility, on a case-by-case basis, for water users meeting certain criteria. These special provisions include alternative measurement methods, requests for additional time, and alternative compliance plans that the water board may approve in some circumstances.

Several requests for this sort of flexibility have been made, but the board has not yet decided on any request, so we don't know how much flexibility it will truly provide for water users.

While we work to help our members understand the new measurement and reporting requirements with resources such as the Compliance Guide, we also work hard in advocating for relief from the most problematic aspects of the regulations.

For example, Farm Bureau supports Assembly Bill 589 by Frank Bigelow, R-O'Neals, which would authorize those who divert more than 100 acre-feet of water a year to certify their water measuring devices are installed and operating properly if they take a course taught by University of California Cooperative Extension. Current law requires a qualified consultant or engineer to install and certify devices.

While we continue to fight for reasonableness, farmers and ranchers must do their best to comply with the existing law. Along with avoiding penalties, reporting water use is an important part of protecting individual water rights in this new era of greater scrutiny and tightened constraints on California water resources.

(Jack Rice is associate counsel and Danny Merkley is director of water resources for the California Farm Bureau Federation.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.