Legal Alerts May 7, 2015

State Water Resources Control Board Adopts Emergency Water Restrictions Throughout California

Sweeping Regulations Expected to Take Effect by May 15

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The State Water Resources Control Board took final action on emergency regulations designed to achieve an overall 25 percent reduction in potable urban water use across California. The regulations are designed to address a relentless four-year drought and mark the first time in the state’s history for such action. The impacts for residents, businesses, industries and public institutions will be felt across the entire state.

Draft versions of the regulations drew hundreds of comment letters, many containing criticism about the magnitude and structure of the restrictions. Nonetheless, the Board left intact nearly all of the tough provisions and adopted the final regulations May 5 after a 10-hour public hearing. The regulations include mandatory potable water production restrictions of up to 36 percent for many water suppliers. The regulations next will be submitted to the state Office of Administrative Law, which has 10 days to approve or deny them. If approved, the regulations would take effect immediately and run through February 2016.

The historic regulations implement provisions contained in an Executive Order issued by Gov. Jerry Brown on April 1 to address the drought. The Board moved swiftly to implement several provisions in the Order by issuing a draft conceptual framework April 7, draft regulations April 18 and revisions to the regulations on April 28. The process drew nationwide attention.

Under the regulations, the state’s 411 “urban water suppliers” must achieve assigned water savings targets that collectively would result in a 25 percent reduction in potable urban water production across the state. “Urban water suppliers” are 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 emergency regulations include a tiering framework designed to place the greatest conservation demands on those agencies with the highest residential gallons per capita/per day water usage. The nine tiers have conservation standards ranging from 4 percent to 36 percent. 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).

The Board adjusted a provision in the final regulations to enable urban water suppliers to subtract the amount of water provided for commercial agricultural use from their potable water production total, subject to reporting and other criteria. The draft version of the regulations had provided a similar exception, but only for suppliers providing 20 percent or more of their total potable water production for commercial agricultural uses.

Urban water suppliers must reduce total potable water production by the amount in their assigned conservation tiers. Compliance will be determined by comparing total potable water production between June 2015 and February 2016 with total potable water production in the same months of 2013. Urban water suppliers will have discretion in deciding how to achieve their conservation standards across residential, commercial, industrial and institutional sectors. The Board plans to begin assessing compliance, on a rolling cumulative basis, starting July 15, when urban suppliers must submit June monthly reports on water production. The regulations only apply to potable (drinkable) water and not non-potable types of water, such as recycled water.

The regulations include enforcement provisions, including the ability of the state to issue conservation orders requiring additional actions on the part of suppliers not complying with their conservation standard. Board staff have emphasized that the emphasis will be on working cooperatively with agencies that are having difficulty achieving their mandated water savings.

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If you have any questions about the 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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