Legal Alerts Feb 2, 2017

State Water Board Releases Latest Round of Proposed Emergency Drought Regulations for California*

Written Comments Due in Five Days

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The State Water Resources Control Board released this week a formal proposal to extend the emergency statewide drought regulations that have been in effect for California in various forms since early 2015. Cities, counties, water agencies and other interested parties have until noon on Monday, Feb. 6, to file written comments. The Board is scheduled to consider the matter at a hearing in Sacramento on Wednesday, Feb. 8.
 
At a workshop last month, many water agencies urged the Board to let the regulations expire, given the extensive rain and snowfall that has fallen across most of the State. However, in a report released late Wednesday afternoon, staff for the Board recommended to extend the regulations because the governor’s drought state of emergency is still in effect and because future precipitation remains uncertain.
 
The current emergency regulations are set to expire Feb. 28. The Board’s proposed resolution would extend them an additional 270 days, almost through the end of the year — although the Board’s executive director would be authorized to modify or repeal the regulations if the governor lifts the drought state of emergency. The resolution also permits Board modification or rescission if precipitation is plentiful in coming months. The Board’s staff report, proposed resolution and draft emergency regulations can be found here.
 
The regulations were first adopted May 5, 2015, as California struggled with a severe and ongoing drought. Originally, they were designed to achieve a 25 percent reduction in urban potable water use statewide. They subjected urban water suppliers to mandatory potable water use cutbacks between 4 percent and 36 percent, compared to 2013. The requirements were stringent and difficult to implement. The Board extended and amended the emergency regulations two more times, on Feb. 2, 2016 and May 18, 2016. The most recent version provides more flexibility and allows urban water suppliers to self-certify a customized conservation standard based on local water supply conditions.
 
Under the proposed extension, the self-certification procedures for local suppliers would remain in place. New language would allow an urban water supplier to submit additional information to the Board by March 15, 2017 if baseline water supply conditions have changed and warrant a different local conservation standard. The regulations would retain various “end-user” prohibitions, such as bans on washing sidewalks and driveways, which apply to all individuals and entities across the State. The requirement for smaller water providers to submit a year-end report showing potable water production for the year would be removed.
 
Written comments should be submitted by email to: commentletters@waterboards.ca.gov, with the subject line: “February 8, 2017 BOARD MEETING (Conservation Extended Regulation).” Extensive information about the Board’s emergency water conservation actions, including archived documents, can be found here. The most recent Executive Order by Gov. Jerry Brown related to the California drought can be found here.  

Best Best & Krieger’s attorneys can assist clients in responding to the regulations. If you have any questions about these regulations or how they may impact your agency, please contact the  authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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*UPDATE: The State Water Resources Control Board voted to extend the regulations.

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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