Legal Alerts Apr 20, 2015

Draft Mandatory Regulations Restricting Water Use in California Released by State Water Resources Control Board

Expanded Tiering System; Next Round of Comments Due Wednesday

Draft Mandatory Regulations Restricting Water Use in California Released by State Water Resources Control Board

Moving at a swift pace, the State Water Resources Control Board released a draft emergency regulation over the weekend that, for the first time, would require mandatory water restrictions by urban water suppliers throughout California. The proposed regulation reflects changes and refinements to the Water Board’s conceptual regulatory framework, which was released April 7 in response to an Executive Order issued by Gov. Jerry Brown on April 1 to address the serious drought in California. The state actions have drawn national attention, as well as widespread concern and criticism because of the magnitude of the proposed water cuts in many areas.

The draft regulation was released Saturday morning. Agencies have just three business days to provide input, with comments due Wednesday. The Water Board plans to adopt a final regulation May 5 or 6. Specific prohibitions would become effective May 15, with reporting activities and compliance due to start in June. The emergency provisions would remain in effect through Feb. 28, 2016.

Nine Tiers of Required Conservation Levels for Urban Water Suppliers
Notably, the draft regulation expands the number of tiers of required conservation levels from four to nine, in response to comments about the arbitrary and unfair nature of the groupings proposed in the conceptual framework. The tiering structure is designed to place the greatest conservation demands on those agencies with the highest residential water usage. In Tier 2, for example, 23 suppliers would be required to achieve an 8 percent potable water savings, while in the highest Tier 9 — 94 agencies would be required to reduce potable urban water usage by 36 percent. Collectively, the percentage-based conservation standards are designed to achieve an overall 25 percent reduction in urban potable water use across the state, as Brown’s Executive Order requires.

The tiering structure and affiliated conservation standards apply to urban water suppliers, defined as those serving more than 3,000 customers or delivering more than 3,000 acre feet of water per year. The state’s 411 urban water suppliers are placed in the tiers based on three months of summer residential gallons-per-capita-per-day water usage data (July through September of 2014). According to the Water Board, this three-month period reflects the amount of water used for summer outdoor irrigation, which provides the greatest opportunity for conservation savings. Originally, the state had proposed a one-month “snapshot” of water usage in September 2014 for assignment into the tiers. The Water Board expanded the time frame because of concerns that the one-month window was too narrow and subject to possible anomalies that made it an unfair measure. Under the revised tiering structure, some agencies found their requirements for water savings reduced somewhat, while for others, the conservation standards increased.

In response to comments, the draft regulation provides two scenarios where water suppliers could seek to modify their total water use or be assigned to a lower conservation tier. In one instance, urban water suppliers delivering more than 20 percent of their total water production to commercial agriculture may be allowed to modify the amount of water subject to their conservation standard. In the other, urban water suppliers with a reserve of surface water that could last multiple years may be eligible to be placed into a lower conservation tier if they meet certain criteria.

The draft regulation contains no specific reduction standards for commercial, industrial and institutional customers of urban or other water suppliers. Instead, water suppliers would have discretion to decide how to achieve their conservation standards by applying restrictions, as they see fit, to residential and nonresidential users.

Two Water Savings Options for Smaller Water Suppliers
Under the draft regulation, smaller water suppliers (serving less than 3,000 connections) would be subject to one of two requirements: Either meeting a 25 percent conservation standard or restricting outdoor irrigation to no more than two days per week. This is a departure from the conceptual framework, which did not provide the option of restricting outdoor irrigation and simply called for an across-the-board 25 percent water savings by all small water suppliers.

Under the draft regulation, small water suppliers would be required to submit a single report on Dec. 15 detailing water production from June through November this year and between June through November 2013 for comparative purposes, or submit confirmation that outdoor irrigation of ornamental landscapes or turf with potable water is limited to no more than two days a week.

End User Requirements
The proposed regulation contains new prohibitions called for in the Executive Order that would apply to all Californians: 1) Irrigation with potable water of ornamental turf on public street medians would be prohibited and 2) irrigation with potable water outside of newly constructed homes and buildings not delivered by drip or microspray. The regulation does not define “medians.” Water Board staff explained last week that it will be left to the discretion and good judgment of communities to meet the median requirement.

Under the Executive Order, Provision 5 called for the Water Board to impose restrictions to require that commercial, industrial and institutional properties, such as campuses, golf courses and cemeteries, to immediately implement water efficiency measures to reduce potable water usage. Under the draft emergency regulation, such properties that are not served by a water supplier must either limit outdoor irrigation to two days per week or achieve a 25 percent reduction in water use. The Water Board explained that the goal is to reduce water use for “large landscapes” that otherwise would not be addressed by the regulation.

The Water Board noted in a Fact Sheet that care must be taken to ensure that existing trees remain healthy and do not create a public safety hazard due to water restrictions. The Water Board will be developing guidance on balancing the needs of trees in light of the forthcoming prohibitions on end users.

Reporting and Compliance: Cumulative Tracking of Water Use, Informational Orders, and Proposed Conservation Orders
For compliance purposes, the draft regulation provides that each urban supplier’s water savings between June 2015 and February 2016 be compared to water usage in the corresponding prior timespan of June 2013 through February 2014. The Water Board will begin assessing compliance with the emergency regulation starting July 15, when urban water suppliers will be required to submit their June monthly reports on water usage.

Numerous commenters on the regulatory framework expressed concern about the Board’s plan to monitor monthly usage results as a means of alerting the state to areas that are falling behind in required reductions. Agencies pointed out that wide swings beyond the control of a water supplier can occur from month to month. The draft regulation therefore includes a provision under which the Water Board would track compliance on a cumulative basis. As monthly reports come in, the Water Board will add agencies’ conservation savings together from one month to the next, comparing the amount of water used during the same months in 2013. The Fact Sheet released Saturday provides graphic illustrations of how the cumulative tracking will work.

In addition to residential water use, urban water suppliers will be required to report on monthly usage by commercial, industrial and institutional sectors.

The draft regulation would allow the Water Board to impose informational orders and potential corrective actions on water suppliers not meeting their conservation standards. In particular, a new “informational order” is proposed in the emergency regulation that would require a response from water suppliers within 30 days or they would face enforcement. Violation of such an order would carry a penalty of up to $500 per day for each day the violation continues. In addition, the Water Board could use a “conservation order” to direct specific actions to correct non-compliance. According to the Water Board’s Fact Sheet, this type of order also would carry a penalty of up to $500 a day.

Additionally, the Water Board would work with water suppliers that are failing to meet their conservation standards to implement actions to achieve the required water savings. These actions could include making changes to rates and pricing, imposing irrigation restrictions, conducting public outreach, offering rebates and audit programs, implementing leak detection and repair, and other measures. These tools could be used at any point during the 270 days the emergency regulation is in effect.

Comments and Feedback
The Water Board seeks feedback on the emergency regulation. Cities, public agencies and other interested parties should submit comments on the updated approach to the regulation and on the specific regulatory language to Jessica Bean at Jessica.Bean@waterboards.ca.gov by Wednesday. The draft regulation will be further refined based on comments received. The Notice of Proposed Emergency Rulemaking and accompanying revised regulatory language will be released April 28 for public comment and consideration by the Water Board at its May 5-6, 2015 regular business meeting. More information and comments thus far can be found here on the Water Board’s website.

If you have any questions about the draft regulation or how it may impact your agency, please contact the attorney authors of this legal alert listed to the right in the Environmental Law and Natural Resources and Special Districts practice groups, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @bbklaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Continue Reading