Commentary: Water diversion-reporting law brings a stream of FAQs

Issue Date: June 23, 2010
Danny Merkley

Danny Merkley

In recent months, and especially the past few weeks, many Farm Bureau members have contacted me via telephone and e-mail because they’re concerned about surface water diversion and use-reporting requirements. The deadline for filing reports with the State Water Resources Control Board comes July 1, and Farm Bureau has been working to educate members through local workshops, coverage in Ag Alert® and information posted on the CFBF website at

It’s safe to say there’s a fair amount of confusion and frustration about the requirement. The law is very complex, and water rights can be confusing and unclear. In some cases, it may be necessary for individuals to hire a qualified legal expert or an engineer to help them through the process.

This new law for surface water diversion and use reporting was part of the five-bill water package that passed the Legislature last fall. Farm Bureau remained opposed to the enabling legislation on water diversions throughout the legislative process but, by working with other agricultural organizations, we were able to obtain significant improvements in the measure.

People who divert surface water in California face a July 1 deadline to report that use for 2009. A new law imposes potentially hefty fines for failure to report.

We have a short time to understand the new law, how it impacts us individually and what is necessary to comply. Here are answers to six of the common questions I receive:

Am I required to report my surface water diversions?

This question can only be answered once an individual analyzes his or her own situation and reads the requirements and exemptions.

Can the July 1 reporting deadline be extended?

The State Water Resources Control Board has no flexibility in the July 1 deadline imposed by the Legislature.

What if I miss the July 1 deadline to report?

The state water board can assess an initial $1,000 penalty for failure to file, plus $500 per day after notification from the board. It may take some time for the board to search out all those who do not comply by July 1, but at some point it will enforce the requirement statewide. It may be a couple of weeks, months, or even a couple of years, but the more time that passes after the deadline, the higher the risk of consequences and fines.

Must I report my groundwater use?

Unless you are in Los Angeles, Riverside, San Bernardino or Ventura County, or are pumping from a known subterranean stream, you are not required to report your groundwater use.

How do I know if my well is pulling from a subterranean stream?

Subterranean streams have not been completely identified or mapped in all areas of California. If you have a shallow well in close proximity to a waterway, you may be pulling water from “underflow” and should research your particular situation.

My stock pond or irrigation pond fills from rainfall-only “sheet flow.” Do I need to report?

If the collection is truly “sheet flow” and not a diversion from a known and definite channel or waterway, there is no requirement to report. “Sheet flow” is informally defined as “a flow of water that originates from precipitation, snowmelt or rising groundwater that covers a large aerial extent of the ground surface in a relatively thin film and is not concentrated into a watercourse.”

It is important to know there is no amnesty for those missing the July 1 deadline and compliance with the law is recommended. It is our understanding that the water board will focus its enforcement resources initially on:
• Those with pending water-right applications, because the water board has notified them directly of the requirements;
• The 1,700 impoundments in the North Coast region that were identified in Assembly Bill 2121;
• The 800 impoundments identified in the Russian River watershed two years ago;
• Diverters on Roberts and Union islands in the Sacramento-San Joaquin Delta.

The water board and the Division of Water Rights say they are interested in compliance with the law. As they set priorities to allocate their limited resources, they will likely focus initially on diversions that adversely affect other water users or the environment, particularly illegal diversions. The size of the diversion isn’t as important as the impact. A small diversion on a small stream with important resources is still a priority to the board.

The water board looks to the enforcement program as a deterrent to non-compliance. Citations are expected for those who do not comply.

When it comes to the reporting requirements for surface water diversions, there are nearly as many scenarios as there are diversions. That makes it difficult to provide specific answers and makes it hard for individuals to know how the law affects their specific situation without having a direct conversation with an expert. I’ve tried to provide some answers here and in the CFBF guidance document, and the water board has actually done a pretty good job of posting answers to frequently asked questions on its website. You can find links to the water board FAQs from our guidance document at I hope you’ll find the information helpful as you navigate your way through this complex requirement.

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

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