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California Water Diverters Scramble to Satisfy New Reporting Rules

Regulations adopted in 2015 require water-rights holders to gather better information on their diversions and report it more frequently. Attorney Amy Steinfeld helps shed light on the complicated new rules.

Written by Matt Weiser Published on Read time Approx. 6 minutes
Rudy Mussi watches his grandson, Lorenzo, as the boy tries to turn a water valve on the family’s almond orchard in the Sacramento-San Joaquin Delta near Stockton, Calif., in March 2015. Thousands of farmers like Mussi, and many other water users, are working to meet new requirements to report more information on their water diversions to help the state manage water resources more closely.Rich Pedroncelli, Associated Press

A crucial deadline passed quietly on January 1 that has big repercussions for the future of California’s water.

It was the first of several deadlines that enforce new requirements for water diverters to precisely measure and report the amount of water they take from the state’s streams. Some 12,000 people and businesses that hold state water rights, large and small, are bound by the new rules.

These water users were required in the past to report their water use. But there were few requirements to ensure accurate reporting. As a result, the information reported to the state has been spotty, unreliable and difficult to access.

All this came to light during the drought, as state officials found they didn’t have solid information to guide their conservation efforts.

The new reporting rules are more complicated, creating some confusion for water diverters. Fortunately Amy Steinfeld, an attorney at the law firm Brownstein Hyatt Farber Schreck, developed a handy infographic cheat sheet to help clients and others understand what’s required and when. Water Deeply recently interviewed Steinfeld, who is based in Santa Barbara, for the lowdown on these regulations.

Water Deeply: Can you sum up these rules for us?

Amy Steinfeld: There are really three pieces to this new law that I think not everyone is really aware of. The first piece is that it requires more accurate measurement of diversions for all water right holders. Second, it requires all water users to report their water use annually. Previously, if you had a small livestock pond you only had to report every three years. So it’s quite a change for some users.

The third piece is really a placeholder that gives the state board authority to allow for increased reporting. If, for example, the drought continues, the state board has the ability to require more frequent reporting if they find annual reporting is not adequate.

With the measurement changes, there are two ways to comply. You can install and certify a measurement device, and the state board has given all kinds of examples. Or if you don’t want to install a measuring device on each diversion, you can come up with your own measurement method as long as you can certify that method meets the requirements. So if you’re a really big diverter, you can have a professional certify your measuring device or method is actually accurate to about 10 percent.

Water Deeply: Why are these new rules needed?

Steinfeld: This law is bringing water users into the 21st century with their reporting. The state is no longer allowing you to send water diversion reports in via the mail. You have to go online and submit electronically. California is not the first to do this. Colorado has actually gone a step further by requiring real-time reporting.

Of course, it was really the drought that spurred this on and produced the need for real-time accurate data. Because in 2015, the water board called for water users to predict what they were going to divert and report back on actual use. But what they got back, apparently, was insufficient for their purposes. So at that point, the state realized they needed to come up with some consistent way to make sure people had some accurate reporting device. So they devised these very complicated regulations where everyone would be required to comply and it would be a uniform way of monitoring compliance.

Water Deeply: Will these regulations encourage conservation?

Steinfeld: I think just by using newer technology, yes. You could be aware of how, for example, your water use was increasing if you are diverting from a lake or river. You could know very accurately how much you are using on a golf course on a particular day and correlate that with the temperature that day. So it may allow your land manager to make more precise decisions about how much water you actually need on a given day. Because if you’re just measuring water on a monthly basis, it’s really hard to get a handle on your hourly or daily use. So it may influence some decisions on how you’re actually using water.

Water Deeply: Are these rules a hardship for water diverters?

Steinfeld: Public agencies and investor-owned utilities, they have very sophisticated ways of measuring their water diversions because they provide water to the public. It’s really the smaller clients we’re hearing concerns from – small farmers, cattle ranchers and also wineries that have, for example, small ponds on their property. Not only do you have to now go out and hire a professional, you also have to pay for the device, you have to pay for someone to certify it and you have to pay for someone to maintain it.

Also, if you’re going to be doing any work in a streambed to install the device, you may have to get a state permit and a local permit for that work. They are requirements for everyone who diverts over 10 acre-feet [around 12,000 cubic meters] annually, so it’s a pretty low threshold. It does present a drastic change, I would say in the way water users operate.

There are potential fines of $500 per day for noncompliance. It is a lot. We’ve heard the state board is going to give some people time to comply because they understand this is a big change.

Water Deeply: How much does it cost to comply?

Steinfeld: The measurement requirement is not new. The piece that’s new is that you must do it using a certified measuring device. A lot of existing users may have something installed, for example, on their canal gate. They may have an existing flow meter. If you’re one of the lucky ones and your existing measuring device actually meets all these requirements, all you have to do is get a contractor to certify your device. If that’s the case, it would be a few hundred dollars. But for the large diverters, it could be up to $20,000, especially if you have a reservoir. It’s much more complex if you have storage on your property.

There’s also the ongoing measuring and maintenance costs. Unless you’re going to put an automated system in, if you divert over 500 acre-feet [around 600,000 cubic meters], the requirement is to measure on a daily basis. So you’re going to have to have one of your farm workers go out there and keep the written log every single day. So it’s also going to increase your staff time. And some farms may not have someone on the property on a daily basis.

Once people get past the initial concern about how expensive and onerous this is, I think it’s going to help individual users make better water decisions for themselves. There are these great automated systems out there to ease your ability to keep these records – and I assume they’re pretty expensive. They transmit electronically to your laptop, and you’re able to download them on a regular basis. We have some clients looking at that because that’s going to take the guesswork out of it.

Water Deeply: What else are you hearing from clients?

Steinfeld: A lot of people believe this is an intrusion into private property rights. What’s different about this law is that it applies to existing water users, including people who may have been using water for over 100 years. So I can see how people see this as an invasion of property rights. Also, if you have a farmer who is also pumping groundwater, they were just hit with the Sustainable Groundwater Management Act and this huge change in how groundwater is managed. And there are quite a few farmers who utilize both surface water and groundwater. So they’re being hit on both ends.

Water Deeply: Given all this effort, do you feel this information will be useful to the state?

Steinfeld: I think so. It’s important for future policy and planning decisions. And also, it’s going to help water users protect their senior rights. Especially when you have a very sensitive stream system that may not have sufficient flows for all users, its going to help these users maintain their senior water rights and identify the junior users who perhaps cannot pump during certain seasons.

Overall, with the prolonged drought, we no longer have the luxury of wasting water. So I think this is really going to help the state and its people understand water use through more accurate measurement, and also help the state understand climate change and how the drought is impacting various stream systems. I don’t imagine a lot of this data will actually see the light of day. It’s just too much information for anyone to absorb. But I think its in line with what other Western states are doing. It’s taking the water industry and water users into the 21st century. It’s no longer something we can just have a guessing game about.

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