Legal Alerts

Public Comments Due Jan. 28

The State Water Resources Control Board released a proposed regulation that will extend statewide emergency water conservation mandates through October 2016. Several key provisions could result in water conservation targets being relaxed for some urban water suppliers in warmer regions, as well as in areas with growing populations.

In response to the ongoing drought, the Board adopted an emergency regulation in May designed to achieve a 25 percent statewide reduction in potable urban water use between June 2015 and February 2016. To reach the statewide reduction mandate, the regulation identified a conservation tier for each urban water supplier ranging from 4 to 36 percent.

On Nov. 13, Gov. Jerry Brown issued Executive Order B-36-15, which called for an extension of the water use restrictions through Oct. 31. The draft regulation implements Brown’s directive, while offering modest adjustments to help respond to criticisms raised by water suppliers and the public.

Based on numerous public comments, the Board has proposed several refinements to the existing regulation. The following are among the proposed modifications:

• A new “climate adjustment” that could reduce a water supplier’s conservation standard by up to four percentage points for those water suppliers located in the warmer regions of California. The climate adjustment would be based on each urban water supplier’s average service area evapotranspiration for the months of July through September, as compared to the statewide average for the same months;
• A mechanism to adjust urban water supplier conservation standards to account for “water efficient growth” since 2013. According to this Board fact sheet, this adjustment would “be calculated as the product of the supplier’s conservation standard and the supplier’s reasonable percentage change in total potable water production since 2013.” The formula would also account for new residential connections, new residential landscaped area, and new commercial, industrial and institutional connections;
• An adjustment that would provide up to an 8 percent reduction to the conservation standard of any water supplier that obtains at least 4 percent of its total potable water production from a new local, drought-resilient water supply. To qualify, the drought-resilient source must have been developed after 2013, and the use of that supply must not reduce the water available to another legal user or the environment; and
• A new penalty for homeowners’ associations or community service organizations that take, or threaten to take, any action that impedes homeowners from reducing or eliminating the watering of vegetation or lawns during a declared drought emergency.

Under the proposed regulation, the maximum adjustment to a supplier’s conservation standard would be 8 percent. In addition, under the current regulation, water suppliers are allowed to subtract water for commercial agriculture from total potable water production if the supplier meets certain conditions. The proposed regulation modifies this exclusion so that it would apply only to customers who produce more than $1,000 in agricultural sales.

The proposed regulation calls for a continuation of monthly reporting requirements for urban suppliers, conservation and reporting requirements for small water suppliers, and statewide prohibited end-uses of potable water.

While the state has experienced much-needed snow and rainfall in December and January, the Board believes it is too early to tell whether additional rain and snowfall will put the state in the position where the water use restrictions are no longer necessary. The Board is seeking public comment on the proposed regulation. The comment period ends on Jan. 28. The Board will consider adopting the regulation at its Feb. 2 meeting. More information about the regulation and how to provide public comments can be found here.

For more information on these draft regulations and the comment process, please contact one of the authors of this legal alert listed at the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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.