Legal Alerts Apr 29, 2015

Tough Mandatory Water Restrictions of up to 36 Percent Retained in Draft Emergency Drought Regulation for California

State Water Resources Control Board Cites Need to Avoid Potential “Catastrophic Impacts”

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The State Water Resources Control Board released revisions to its draft emergency regulations to restrict overall potable urban water usage across the state by 25 percent. The revisions, released late Tuesday, include language clarifications and changes to certain provisions. By and large, however, the new proposed regulations retain the form and substance of the strict and far-reaching mandatory conservation requirements that the Board has advocated for for the past three weeks.

In comment letters on the draft regulations, numerous cities and water agencies urged the Board to consider alternative provisions that consider the diverse geographic, climatic, population, environmental and water conservation factors across the state. Agencies  expressed particular concern about the nine tiers of conservation standards contained in the regulations, which require urban water suppliers to achieve potable (drinkable) water savings ranging from 8 to 36 percent based on existing residential per capita water usage. The revised regulations retain the nine tiers, which rise by increments of four percentage points.

In a Fact Sheet, the Board indicated that it may be willing to modify the tier structure before adopting the regulations to double the number of tiers and use 2 percent increments for setting the required conservation standards. The Board is encouraging feedback on this point.

Tuesday’s release marked the Board’s Notice of Proposed Emergency Rulemaking and commencement of a formal comment period on the forthcoming regulations. The comment period will be brief, with written comments due by 10 a.m. May 4. Cities, public agencies and other interested parties should submit written comments by the deadline to commentletters@waterboards.ca.gov. All comments should indicate on the subject line: “Comment Letter – Emergency Conservation Regulations.” The Board scheduled adoption of the proposed emergency regulations for its May 5-6 meeting. The public hearing is scheduled to begin May 5. Specific prohibitions would become effective approximately May 15, with reporting activities and compliance due to start in June. The emergency provisions would remain in effect through February 2016.

The draft regulations implement an Executive Order  issued by Gov. Jerry Brown on April 1 to address the serious drought in California. The Board issued a Draft Regulatory Framework for the proposed water restrictions on April 7, and the first version of the draft regulations on April 18. On Tuesday, Brown announced he will propose new legislation to provide expanded enforcement powers to local agencies, including the ability to “deputize” staff to cite water wasters and to impose fines of up to $10,000 per day for those who fail to comply with locally imposed water restrictions. Brown also said he would propose legislation to accelerate environmental permitting for local water supply projects.

Urban Water Suppliers
To a large extent, the draft regulations are aimed at urban water suppliers, defined as those serving more than 3,000 customers or delivering more than 3,000 acre feet of water per year (but not suppliers functioning solely in a wholesale capacity). The proposed regulations’ tiering structure is designed to place the greatest conservation demands on those agencies with the highest residential gallons per capita/per day 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, 85 agencies would be required to reduce potable urban water production by 36 percent. Collectively, the percentage-based conservation standards are designed to achieve the overall 25 percent reduction in urban potable water use across the state that Brown’s Executive Order requires.

The state’s 411 urban water suppliers are assigned to 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 Board, this three-month period reflects the large amount of water used for summer outdoor irrigation, which provides one of the greatest opportunities for conservation savings.

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

For compliance purposes, the draft regulations provide that 2013 would form the base year for comparison. Each urban supplier’s water savings between June 2015 and February 2016 would be compared to water usage in the corresponding prior months of June through December 2013 and January and February 2013 to determine whether the mandated conservation standard is achieved. The Board plans to begin assessing compliance with the emergency regulations starting July 15, when urban water suppliers will be required to submit their June monthly reports on water production. Thus, local agencies will be required to move quickly to implement conservation measures and restrictions starting as early as June 1 to be able to capture the greatest amount of water savings within the compliance period.

Tuesday’s revisions to the draft regulations include language clarifications to address questions . The draft regulations originally referred to “total water usage” in establishing the nine tiers of conservation standards. The regulations now call for reductions in the “total potable water production” of urban water suppliers. “Total potable water production” is defined as “all potable water that enters a water supplier’s distribution system, excluding water placed into storage and not withdrawn for use during the reporting period, or water exported outside the supplier’s service area.”

End User Requirements
The new draft regulations retain a new prohibition applicable to all Californians, which would ban irrigation with potable water of ornamental turf on public street medians. A second new prohibition for all new development in California was modified to remove direct reference to “drip or microspray systems.” This provision now prohibits “irrigation with potable water of landscapes outside of newly constructed homes and buildings in a manner inconsistent with regulations or other requirements established by the California Building Standards Commission.”

Under Brown’s Executive Order, Provision 5 called for the Board to impose restrictions requiring commercial, industrial and institutional properties — such as campuses, golf courses and cemeteries — to immediately implement water-efficiency measures to reduce potable water usage. The revised draft regulations provide that all such properties that use a water supply, any portion of which is from a source other than an urban water supplier, must either limit outdoor irrigation of ornamental landscapes or turf with potable water to no more than two days per week or achieve a 25 percent reduction in potable water use. The Board explained that the goal is to reduce water use for “large landscapes” that otherwise would not be addressed by the regulations.

Reporting and Compliance
The draft regulations retain a provision under which the Board would track compliance on a cumulative basis. As monthly reports are submitted, the 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. In addition to residential water use, urban water suppliers will be required to report on monthly usage by the commercial, industrial and institutional sectors within their jurisdictions.

The draft regulations include a revised provision that would allow the Board’s executive director, or the executive director’s designee, to issue an informational order requiring water suppliers, or commercial, industrial or institutional properties that receive any portion of their supply from a source other than an urban water supplier, to submit “additional information relating to water production, water use or water conservation.” Failure to provide such requested information within 30 days (or within any additional time extension that may be granted) would be a “violation subject to civil liability of up to $500 per day for each day the violation continues pursuant to Water Code section 1846.”

The revised regulations also clarify potential enforcement actions for failure to comply with any end-user requirements, including provisions that were adopted prior to the current emergency rulemaking. The draft regulations state that such a violation is an infraction punishable by a fine of up to $500 for each day the violation occurs. The revised regulations add this statement, which makes clear that other potential enforcement actions may come into play: “The fine for the infraction is in addition to, and does not supersede or limit, any other remedies, civil or criminal.”  

If you have any questions about the draft regulations or how they may impact your municipality or 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.

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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.

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