Taking effect earlier this month, Senate Bill 88 was approved overwhelmingly last legislative session and signed by the Governor as another effort to combat drought and water supply shortage conditions in the State of California. Senate Bill 88 – among other things – authorized the State Water Resources Control Board (“State Water Board”) to adopt emergency regulations.

The State Water Board did so January 19, 2016 by approving emergency regulations requiring all surface water diverters to report their diversions annually instead of every three years, as previously required.  This generally means reporting must be done by June 30 for the prior year’s water use.  The new regulations require water rights holders that divert 10 acre-feet or more of water to comply with new measurement and reporting requirements, which the State Water Board says will be phased in based on the size of the water diversion.  Regulators anticipate approximately 12,000 water rights holders and claimants will be impacted, with failure to comply potentially resulting in a $500 per day penalty.

Other significant points arising from Senate Bill 88 are:

  • Failing Water Systems. The State Water Board now has the authority to force local water systems located within disadvantaged communities (where the annual median household income is less than 80% of the statewide annual median household income) to consolidate with a receiving water system, if the local water system consistently fails to provide an adequate supply for safe drinking water.
  • Civil Liabilities. Previously, civil liability for violation of a requirement under a water conservation program, was limited to a misdemeanor punishable by imprisonment for no more than 30 days or by a fine not exceeding $1,000. This bill provides:
    • Violation of a local water conservation program (adopted under Water Code section 376 or for violating an emergency regulation adopted by the Water Board pursuant to Water Code section 1058.5): can result in a maximum fine of $10,000.
    • First time residential violator: fine not to exceed $1,000 unless an extraordinary situation exists, such as actual notice of violation, conduct was intentional, or the amount of water was substantial.
    • Violation 31 days after notification: fined up to $10,000 plus $500 for each additional day the violation continues.
  • CEQA. The bill also provides certain exemptions from CEQA review:
    • Projects that will mitigate drought conditions and replenish groundwater are exempt from CEQA until January 1, 2017.
    • Projects related to recycled water systems will be exempt from CEQA until July 1, 2017.
    • Adoption of an ordinance to impose stricter conditions on the issuance of well permits or changes in the intensity of land use that would increase demand on groundwater, is exempt from CEQA until July 1, 2017.

Senate Bill 88 and this new set of emergency regulations demonstrate the strong set of winter storms bringing snow to the Sierras and rain mostly to northern California so far this season is not yet enough to slow formation of new drought measures. In fact, the State Water Board is poised next week to decide whether to extend the existing drought regulations through much of 2016.  So, stay tuned…