The State Water Resources Control Board (“Water Board”) just released draft emergency regulations to implement Senate Bill 88 (“SB 88”).  SB 88 applies to all water rights holders who divert 10 acre-feet of water or more per year and adds measurement and reporting requirements to water diverters across the state.  The Water Board will hold a public workshop on December 17, 2015 at 9:00 am at its headquarters in Sacramento, California to receive public comment.  Written comments may be submitted by email to Paul Wells at paul.wells@waterboards.ca.gov until December 17, 2015.

Background

SB 88 requires that all water rights holders including statement holders, and all persons authorized to appropriate water under a permit, license, registration for stockpond, or certificate for livestock stockpond (“Water Rights Holders”) report their diversion and use of water annually.  SB 88 also establishes stricter requirements for the measurement and monitoring of water use that forms the basis for those annual reports. Currently, permit and license holders are required to report their diversion and use of water annually, statement holders must report their use once every three years, and registration holders must report their use once every five years.

Proposed Regulatory Framework

The annual reporting requirement in the draft regulations implementing SB 88, requires Water Rights Holders to submit a report of their diversion and use of water within three months of the close of the annual reporting period.  Water Rights Holders may use provisional data if final data is not available at the reporting deadline, but an amended report with final data must be submitted within six months of the reporting deadline to comply with the reporting requirement.

The measuring and monitoring data that forms the annual reports is also addressed under the draft regulations.  The intensified requirements for measurement and monitoring is based on the type of diversion or storage that the Water Rights Holder is using, and the volume of water being diverted and stored.  The table below outlines the measuring and monitoring requirements for each type of diversion or storage and the volume of water used under the proposed regulations:

The monitoring and measuring requirements under the proposed regulations will be implemented in a phased approach with the first installation deadline for the largest diverters coming in July 1, 2016.  The final installation deadline for Water Rights Holders diverting water into reservoirs with storage of less than 10 acre-feet is set for January 1, 2018.  Water Rights Holders subject to the monitoring and measuring requirements must also certify the accuracy of the measuring devices every five years.  The regulations also allow for alternative compliance to the requirements set forth above in specific circumstances.

Finally, SB 88 and the proposed regulations continue to address the continuing drought conditions in California by allowing for increased reporting in times of insufficient water supply.  The proposed regulations provide that when the Water Board notifies Water Rights Holders of insufficient supply, the Water Board may also require more frequent reporting to provide the most accurate assessment of water demand.  The amount of additional required reporting is left to the discretion of the Water Board, but cannot exceed the monitoring capabilities that are established in the table above.

Water use continues to be an issue in California as the drought persists.  We will continue to keep you updated on developments in the drought response.  If you have any questions regarding the proposed regulations or SB 88, please contact Barbara A. Brenner at (916) 468-0950 or barbara@whitebrennerllp.com.