On October 23, 2015, the State Water Resources Control Board (State Water Board) announced a schedule of meetings to discuss and receive comment on its implementation of Senate Bill 88, which, among other things, authorizes the State Water Board to adopt an emergency regulation imposing new requirements for the monitoring and reporting of water diversions and use. (See generally Sen. Bill No. 88 (2015-2016 Reg. Sess.).)

In June 2015, the Legislature enacted Senate Bill 88 to implement certain provisions of the 2015-2016 Budget Act. In general, the trailer bill implements several water-related measures designed to improve the State’s response to drought conditions. Among other programs, the bill authorizes the State Water Board to adopt an emergency regulation establishing new monitoring and reporting requirements for the diversion and use of water. Specifically, the bill requires all persons diverting 10 acre-feet or more per year under a water right license or permit to “install and maintain a device or employ a method capable of measuring the rate of direct diversion, rate of collection to storage, and rate of withdrawal or release from storage.” (Sen. Bill No. 88, § 15; Wat. Code, § 1840(a)(1).) Additionally, Senate Bill 88 requires all licensees, permittees, and registrants to submit statements of diversion and use annually. (Id. at § 15; Wat. Code, § 1840(c).) Annual statements must include the quantity of water diverted by month, the maximum rate of diversion by month in the preceding calendar year, and evidence that a monitoring device has been installed and is functioning properly. (Id. at § 15; Wat. Code, § 1840(a)(1)(A), (c)(1)-(3).) Permittees and licensees must also maintain and submit with annual statements a record of all diversion monitoring that includes the date, time, and diversion rate at time intervals of one hour or less, and the total amount of water diverted. (Id. at § 15; Wat. Code, § 1840(a)(2).) Failure to comply with a State Water Board regulation implementing these new requirements will subject a licensee, permittee, or registrant to liability up to $500 per day regardless of whether the regulation is adopted in response to a critically dry year or the Governor issuing a state of emergency due to drought. (See Id. at § 15; Wat. Code, §§ 1841(a)(1), 1846(a)(1).)

Senate Bill 88’s requirement that appropriate monitoring equipment be installed takes effect on January 1, 2016; however, the reporting of new diversion and use information does not apply until the filing of statements for the period beginning July 1, 2016. Accordingly, the State Water Board has noticed informational hearings throughout the State in the beginning of November 2015 to discuss Senate Bill 88. Although it has not yet released its draft of the emergency regulation, the State Water Board will receive comments on the bill’s requirements and the State Water Board’s plan of implementation. Dates, times, and locations for each hearing are available on the State Water Board’s website at: http://www.waterboards.ca.gov/waterrights/water_issues/programs/measurement_regulation/. The State Water Board plans to adopt a final emergency regulation for submission to the Office of Administrative Law at its December 15, 2015 board meeting.

For more information regarding the State Water Board’s implementation of Senate Bill 88’s water right monitoring and reporting requirements, please contact Jason Canger at jcanger@somachlaw.com.

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