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SB-832 Water rights: measurement of diversion.(2021-2022)

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Date Published: 04/06/2022 09:00 PM
SB832:v96#DOCUMENT

Amended  IN  Senate  April 06, 2022
Amended  IN  Senate  March 23, 2022
Amended  IN  Senate  March 10, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 832

Introduced by Senator Dodd

January 03, 2022

An act to amend, repeal, and add amend Section 1840 of, and to add Sections 27 and 1840.5 to, the Water Code, relating to water.


LEGISLATIVE COUNSEL'S DIGEST


SB 832, as amended, Dodd. Water rights: measurement of diversion.
(1) Existing law defines various terms applicable to the Water Code.
This bill would define “water year,” unless otherwise specified, to mean the 12-month period beginning October 1 and ending September 30.
(2) Existing law requires a person who diverts 10 acre-feet or more of water per year under a permit or license 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. Existing law requires the measurements to be made using the best available technologies and best professional practices using a device or methods satisfactory to the State Water Resources Control Board, as specified in regulations adopted by the state board. Existing law requires a permittee or licensee to maintain a record of all diversion monitoring, as provided, and to include those records with annual reports required to be submitted to the state board. Existing law authorizes the state board to modify these requirements if the state board finds that strict compliance with these requirements is infeasible, is unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water, or that the need for monitoring and reporting is adequately addressed by other conditions of the permit or license.
This bill bill, among other things, would clarify existing law that a diverter, as defined, diverting 10 acre-feet or more of water per year is subject to these water diversion measurement, recording, and reporting requirements. The bill would additionally authorize, until March 1, 2028, the state board to modify water diversion measurement requirements if the board finds that, among other things, the beneficial use of the water right is for irrigation of specified farmland, the water right is for direct diversion only, as specified, and the runoff and tailwater from the application of the diverted water returns to the same surface water source from which it was diverted. requirements, as specified.

This bill would require the state board to work with stakeholder diverters to prepare and implement one or more alternative water measurement study plans in each agricultural production region of the state that covers a diverse set of land elevations and soil conditions where crops are irrigated with direct surface water diversions. The bill would require, upon completion of the study plans, the state board to prepare a report on the ability of evapotranspiration alone, or in combination with other methodologies, to provide the information needed to monitor water diversions, including, but not limited to, rates, amounts, and timing, with the equivalent accuracy as would be provided under regulations for diversions, and post it on its internet website for public comment on or before March 1, 2027, to respond to the comments, and submit a final report to the Legislature on or before July 1, 2027.

This bill would authorize the state board to, upon appropriation by the Legislature, subsidize the cost of acquiring, installing, and maintaining water meters on points of diversion as required to implement study plans.

This bill would repeal, on March 1, 2028, the provisions related to the preparation and implementing of the above-described study plans.

This bill would require the state board to develop and administer a study to determine the ability of evapotranspiration alone, or in combination with other methodologies, to provide the information needed to monitor water diversions, as specified. The bill would require the state board to provide the Legislature with a report documenting the study, its results, and the findings of an independent review on or before January 1, 2028.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 27 is added to the Water Code, to read:

27.
 “Water year,” unless otherwise specified, means the 12-month period beginning October 1 and ending September 30.

SEC. 2.Section 1840 of the Water Code is amended to read:
1840.

(a)(1)Except as provided in subdivision (b), a diverter, as defined in subdivision (e) of Section 931 of Title 23 of the California Code of Regulations, who, on or after January 1, 2016, diverts 10 acre-feet or more of water per year shall 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. The diverter shall take the measurements using the best available technologies and best professional practices, as defined in Section 5100, using a device or methods satisfactory to the board, as follows:

(A)A device shall be capable of continuous monitoring of the rate and quantity of water diverted and shall be properly maintained. The diverter shall provide the board with evidence that the device has been installed with the first report submitted after installation of the device. The diverter shall provide the board with evidence demonstrating that the device is functioning properly as part of the reports submitted at five-year intervals after the report documenting installation of the device, or upon request of the board.

(B)In developing regulations pursuant to Section 1841, the board shall consider devices and methods that provide accurate measurement of the total amount of water diverted and the rate of diversion. The board shall consider devices and methods that provide accurate measurements within an acceptable range of error, including the following:

(i)Electricity records dedicated to a pump and recent pump test.

(ii)Staff gage calibrated with an acceptable streamflow rating curve.

(iii)Staff gage calibrated for a flume or weir.

(iv)Staff gage calibrated with an acceptable storage capacity curve.

(v)Pressure transducer and acceptable storage capacity curve.

(2)The diverter shall maintain a record of all diversion monitoring that includes the date, time, and diversion rate and the total amount of water diverted. These records shall be included with submitted reports required under subdivision (c), or upon request of the board.

(b)(1)The state board may modify the requirements of subdivision (a) upon finding any of the following:

(A)That strict compliance with the requirements of subdivision (a) is infeasible, is unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water.

(B)That the need for monitoring and reporting is adequately addressed by other conditions of a registration, permit, or license authorizing the diversion of water.

(C)That all of the following apply:

(i)The beneficial use of the water right is for irrigation of farmland enrolled in a study plan developed pursuant to subdivision (e).

(ii)The water right is for direct diversion only, and not for diversion to or release from operable storage.

(iii)Runoff and tailwater from application of the diverted water returns to the same surface water source from which the water was diverted, without reservation of dominion and control.

(iv)Unmeasured conveyance losses of water from the point of diversion to the point of return to the same surface water source from which the water was diverted are shown to be negligible or can be estimated using a board approved methodology.

(v)Crop evapotranspiration within the water right’s georeferenced place of use is measured and reported by means of a remote sensing methodology found by the state board to be scientifically sound, open source, and publicly available.

(vi)Each study plan prepared pursuant to subdivision (e) shall include a sufficient number of meters or other measurement methods that meet the requirements of subdivision (a) on a representative sample of points of diversion. The meters or other measurement methods used in the study plan shall be operated for a minimum of five years.

(D)The permittee or licensee is participating in a study pursuant to Section 1840.5.

(2)The state board may increase the 10-acre-foot reporting threshold of subdivision (a) in a watershed or subwatershed after considering the diversion reporting threshold in relation to quantity of water within the watershed or subwatershed. The state board may increase the 10-acre-foot reporting threshold to 25 acre-feet or more of water per year if it finds that the benefits of the additional information within the watershed or subwatershed are substantially outweighed by the cost of installing measuring devices or employing methods for measurement for diversions at the 10-acre-foot threshold.

(c)At least annually, and consistent with the reporting periods provided in subdivision (b) of Section 5101 and the regulations adopted by the state board, diverters shall report to the state board all of the following information:

(1)The quantity of water diverted by month.

(2)The maximum rate of diversion by month in the preceding water year.

(3)The information required by subdivision (a), if applicable.

(4)The amount of water used, if any, for cannabis cultivation.

(d)Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.

(e)(1)The state board shall work with stakeholder diverters to prepare and implement one or more alternative water measurement study plans in each agricultural production region of the state that covers a diverse set of land elevations and soil conditions where crops are irrigated with direct surface water diversions.

(2)Upon completion of the study plans, the state board shall prepare a report on the ability of evapotranspiration alone, or in combination with other methodologies, to provide the information needed to monitor water diversions, including, but not limited to, rates, amounts, and timing, with the equivalent accuracy as would be provided under regulations for diversions measured under subdivision (a), and post it on its internet website for public comment on or before March 1, 2027. The state board shall respond to comments and submit a final report to the Legislature on or before July 1, 2027.

(f)Upon appropriation by the Legislature, the state board may subsidize the cost of acquiring, installing, and maintaining water meters on points of diversion as required to implement the study plan developed pursuant to subdivision (e).

(g)A report to be submitted pursuant to subdivision (e) shall be submitted in compliance with Section 9795 of the Government Code.

(h)This section shall remain in effect until March 1, 2028, and as of that date is repealed unless a later enacted statute extends or repeals that date.

SEC. 3.Section 1840 is added to the Water Code, to read:
1840.

(a)(1)Except as provided in subdivision (b), a diverter, as defined in subdivision (e) of Section 931 of Title 23 of the California Code of Regulations, who, on or after January 1, 2016, diverts 10 acre-feet or more of water per year shall 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. The diverter shall take the measurements using the best available technologies and best professional practices, as defined in Section 5100, using a device or methods satisfactory to the board, as follows:

(A)A device shall be capable of continuous monitoring of the rate and quantity of water diverted and shall be properly maintained. The diverter shall provide the board with evidence that the device has been installed with the first report submitted after installation of the device. The diverter shall provide the board with evidence demonstrating that the device is functioning properly as part of the reports submitted at five-year intervals after the report documenting installation of the device, or upon request of the board.

(B)In developing regulations pursuant to Section 1841, the board shall consider devices and methods that provide accurate measurement of the total amount of water diverted and the rate of diversion. The board shall consider devices and methods that provide accurate measurements within an acceptable range of error, including the following:

(i)Electricity records dedicated to a pump and recent pump test.

(ii)Staff gage calibrated with an acceptable streamflow rating curve.

(iii)Staff gage calibrated for a flume or weir.

(iv)Staff gage calibrated with an acceptable storage capacity curve.

(v)Pressure transducer and acceptable storage capacity curve.

(2)The diverter shall maintain a record of all diversion monitoring that includes the date, time, and diversion rate and the total amount of water diverted. These records shall be included with submitted reports required under subdivision (c), or upon request of the state board.

(b)(1)The state board may modify the requirements of subdivision (a) upon finding any of the following:

(A)That strict compliance with the requirements of subdivision (a) is infeasible, is unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water.

(B)That the need for monitoring and reporting is adequately addressed by other conditions of a registration, permit, or license authorizing the diversion of water.

(C)The permittee or licensee is participating in a study pursuant to Section 1840.5.

(2)The state board may increase the 10-acre-foot reporting threshold of subdivision (a) in a watershed or subwatershed after considering the diversion reporting threshold in relation to quantity of water within the watershed or subwatershed. The state board may increase the 10-acre-foot reporting threshold to 25 acre-feet or more of water per year if it finds that the benefits of the additional information within the watershed or subwatershed are substantially outweighed by the cost of installing measuring devices or employing methods for measurement for diversions at the 10-acre-foot threshold.

(c)At least annually, and consistent with the reporting periods provided in subdivision (b) of Section 5101 and the regulations adopted by the state board, diverters shall report to the state board all of the following information:

(1)The quantity of water diverted by month.

(2)The maximum rate of diversion by month in the preceding water year.

(3)The information required by subdivision (a), if applicable.

(4)The amount of water used, if any, for cannabis cultivation.

(d)Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.

(e)This section shall become operative on March 1, 2028.

SEC. 2.

 Section 1840 of the Water Code is amended to read:

1840.
 (a) (1) Except as provided in subdivision (b), a person diverter, as defined in subdivision (e) of Section 931 of Title 23 of the California Code of Regulations who, on or after January 1, 2016, diverts 10 acre-feet or more of water per year or more under a permit or license shall 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. The diverter shall take the measurements shall be made using the best available technologies and best professional practices, as defined in Section 5100, using a device or methods satisfactory to the board, as follows:
(A) A device shall be capable of continuous monitoring of the rate and quantity of water diverted and shall be properly maintained. The permittee or licensee diverter shall provide the board with evidence that the device has been installed with the first report submitted after installation of the device. The permittee or licensee diverter shall provide the board with evidence demonstrating that the device is functioning properly as part of the reports submitted at five-year intervals after the report documenting installation of the device, or upon request of the board.
(B) In developing regulations pursuant to Section 1841, the board shall consider devices and methods that provide accurate measurement of the total amount of water diverted and the rate of diversion. The board shall consider devices and methods that provide accurate measurements within an acceptable range of error, including the following:
(i) Electricity records dedicated to a pump and recent pump test.
(ii) Staff gage calibrated with an acceptable streamflow rating curve.
(iii) Staff gage calibrated for a flume or weir.
(iv) Staff gage calibrated with an acceptable storage capacity curve.
(v) Pressure transducer and acceptable storage capacity curve.
(2) The permittee or licensee diverter shall maintain 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. These records shall be included with reports submitted under the permit or license, reports as required under subdivision (c), or upon request of the state board.
(b) (1) The state board may modify the requirements of subdivision (a) upon finding either any of the following:
(A) That strict compliance with the requirements of subdivision (a) is infeasible, is unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water.
(B) That the need for monitoring and reporting is adequately addressed by other conditions of the permit a registration, permit, or license. authorizing the diversion of water.
(C) The permittee or licensee is participating in a study pursuant to Section 1840.5.
(2) The state board may increase the 10-acre-foot reporting threshold of subdivision (a) in a watershed or subwatershed, subwatershed after considering the diversion reporting threshold in relation to quantity of water within the watershed or subwatershed. The state board may increase the 10-acre-foot reporting threshold to 25 acre-feet or above more of water per year if it finds that the benefits of the additional information within the watershed or subwatershed are substantially outweighed by the cost of installing measuring devices or employing methods for measurement for diversions at the 10-acre-foot threshold.
(c) At least annually, a person who diverts water under a registration, permit, or license and consistent with the reporting periods provided in subdivision (b) of Section 5101 and the regulations adopted by the state board, diverters shall report to the state board all of the following information:
(1) The quantity of water diverted by month.
(2) The maximum rate of diversion by months month in the preceding calendar water year.
(3) The information required by subdivision (a), if applicable.
(4) The amount of water used, if any, for cannabis cultivation.
(d) Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.

SEC. 4.SEC. 3.

 Section 1840.5 is added to the Water Code, to read:

1840.5.
 (a) The state board shall develop and administer a study to determine the ability of evapotranspiration alone, or in combination with other methodologies, to provide the information needed to monitor water diversions, including, but not limited to, rates, amounts, and timing from various points of diversion, with the equivalent accuracy as would be provided under regulations for diversions measured under Section 1840.
(b) The study shall be developed in collaboration with water diverters, stakeholders, and other interested parties, and shall include all of the following:
(1) Sites representing a diverse range of agricultural regions, soil types, and land elevations.
(2) Provisions ensuring each study site includes a sufficient number of meters or other measurement methods that meet the requirements of Section 1840 on a representative sample of points of diversion.
(3) Provisions requiring the meters or other measurement methods be operated for a minimum of five years.
(c) The study shall be limited to sites where all of the following apply:
(1) The beneficial use of the water right is for irrigation of farmland with surface water.
(2) The water right is for direct diversion only and not for diversion to, or release from, operable storage.
(3) Runoff and tailwater from application of the diverted water returns to the same surface water source from which the water was diverted, without reservation of dominion and control.
(4) Unmeasured conveyance losses of water from the point of diversion to the point of return to the same surface water source from which the water was diverted are shown to be negligible or can be estimated using a methodology approved by the state board.
(d) The study shall include various methodologies that meet all of the following criteria:
(1) Crop evapotranspiration within the water right’s georeferenced place of use is calculated and reported by means of a remote sensing methodology.
(2) The state board finds the methodology is sufficiently documented to ensure the results are scientifically sound and accurate.
(3) Data supporting the estimates and the estimates themselves are publicly and freely available.
(e) A draft of the study and its results shall be subject to independent scientific review, evaluation, and critique.
(f) The state board shall provide the Legislature with a report documenting the study, its results, and the findings of the independent review on or before January 1, 2028.
(g) (1) The requirement for submitting a report imposed under subdivision (f) is inoperative on January 1, 2032, pursuant to Section 10231.5 of the Government Code.
(2) A report to be submitted pursuant to subdivision (f) shall be submitted in compliance with Section 9795 of the Government Code.