Commentary: New law changes reporting for surface water diversions


Issue Date: February 10, 2010
Danny Merkley

With last year's passage of a comprehensive water package come new mandates. One piece of the package, Senate Bill 8 by Sen. Darrell Steinberg, D-Sacramento, requires all surface water diversions to be reported, with a few exceptions. It is important to note that prior to this legislation passing, Section 5101 of the California Water Code already required statements of diversion and use, but with a number of exceptions and, under Section 5108 of the code, there were no legal consequences for failure to report. Now, there are.


Danny Merkley

The new law makes significant changes to the water diversion and use reporting laws. With some exceptions, those who divert water after Jan. 1, 2009, are subject to new penalties for failure to report and reporting misstatements.

The new penalties include:

  • Failure to report: $1,000 and $500 per day for failure to correct after 30 days.
  • Accidental misstatements, including those caused by a broken water measuring device: $250 and $250 per day for failure to correct after 60 days.
  • Willful misstatements, including those caused by tampering with a water measuring device: $25,000 and $1,000 per day for failure to correct after 30 days.
  • Other violations: $500 and $250 per day for failure to correct after 30 days.

The Electronic Water Rights Information Management System—a database developed by the state water board—tracks information on water rights. It includes a geographic information system component, above, that can display points of diversion for water rights that can be searched by the owner's name, watershed, stream system and county. The service is available at www.swrcb.ca.gov/ewrims.

As stated, previously there were no penalties for failure to report. Under the new law, penalties for accidental misstatements are reduced from $500 to $250 and the willful misstatement penalty is increased from $1,000 to $25,000.

The deadline to file water diversion and use statements for 2009 is July 1, 2010.

Those who do not have to file statements of diversion and use include:

  • Diversions from a spring that does not flow off the property if the diversion is 25 acre-feet or less per year.
  • Diversions under a small domestic or livestock stock pond registration or certificate.
  • Diversions under a permit or license to appropriate water issued by the State Water Resources Control Board.
  • Diversions from a source regulated by a court or state appointed watermaster, where the watermaster maintains records of the diversion.

The new law also appropriates $3.75 million to the state water board for 25 new staff positions to manage water diversion reporting, monitoring and enforcement.

Farm Bureau and other agricultural organizations were successful in gaining amendments to proposed language that would have established penalties at an amount equivalent to the highest market value of water and would have imposed such penalties for up to three years retroactively. Prior versions of the bill also would have given broad new authority to the state water board to levy fees for various enforcement purposes, and would have allowed the board to initiate water rights cases instead of merely responding to complaints.

The state water board now offers new online reporting options through its Electronic Water Rights Information Management System (eWRIMS). The online reporting is optional this year; however, the water board plans to adopt new regulations this year that will require all future water use reports to be submitted electronically.

CFBF was involved throughout 2009, working on behalf of Farm Bureau members on various measures that dealt with water infrastructure, water use efficiency, water diversions and groundwater monitoring. The comprehensive water package did not materialize until early November. Most of the work on the final package was completed during a special legislative session called by the governor. During the negotiations surrounding components of the water package, Farm Bureau worked around the clock with other agricultural stakeholders for amendments to improve the package and rid it of many provisions that would have been harmful to farmers and ranchers.

Although this water package is movement in the direction of expanding our state's water infrastructure, it does include some provisions we do not care for and opposed. But a coalition of agricultural and agricultural water interests, including Farm Bureau, was able to make significant improvements in the final language.

While quantifying the infrastructure and water storage benefits of the water legislation is a challenging task, it does set the stage for enhancing water supply reliability for the state.

(Danny Merkley is director of water resources for the California Farm Bureau Federation. He may be reached at dmerkley@cfbf.com.)

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