Legal Alerts

State Water Resources Control Board Releases Draft Regulation to Modify Water Conservation Requirements

Mandatory statewide water use restrictions in California would be replaced by a more locally driven set of water conservation requirements under a draft emergency regulation proposed Monday by the State Water Resources Control Board. The draft regulation is on a swift timeline, with possible adoption by the Board on May 18. It can be viewed here.

The draft regulation was released the same day Gov. Jerry Brown issued an Executive Order calling for the Department of Water Resources to develop a new long-term plan for saving water in California. The plan will include locally based water use targets aimed at reducing indoor residential water use; outdoor irrigation; commercial, industrial and institutional water use; and water lost through leaks. The new water use targets must build on existing state law requiring the State to achieve a 20 percent reduction in urban water usage by 2020. In addition, DWR is required to strengthen requirements for urban Water Shortage Contingency Plans which urban water suppliers are required to maintain. Among other things, the updated requirements must include actions to respond to droughts lasting at least five years, as well as more frequent and severe periods of drought. DWR will be developing the new plan over the next seven months; thus, the Executive Order should not impact the current round of Urban Water Management Plan updates, which are being developed by agencies throughout the state and must be submitted to DWR by July 1.

Brown’s Executive Order includes a number of other provisions. Among them:

• Requiring DWR to work with the California Department of Food and Agriculture to update existing requirements for Agricultural Water Management Plans.
• Requiring the Board to permanently prohibit certain uses of water, such as hosing off sidewalks and driveways and washing automobiles with hoses not equipped with a shut-off nozzle.
• Requiring the Board to extend the existing emergency conservation regulations through the end of January 2017, possibly with adjustments to reflect the differing water conditions in various regions of the state.

The existing emergency regulation was adopted in May 2015 and was extended and amended in February to address the four-year drought. Under the draft document released by the Board on Monday, that regulation would be modified to reflect improved water supply conditions around much of the State. Under the existing emergency regulation, the State’s 411 urban water suppliers must meet potable water use reduction standards that have run as high as 36 percent in some places. Those standards have been widely criticized for failing to take into account local and regional differences in climate, demographics, water supply and water needs.

In response, the Board is now proposing the amended emergency regulation, which would replace the state reduction targets with locally developed conservation standards based on each agency’s specific circumstances, unless an agency elects not to submit such a “self-certification” and instead elects to continue with its existing conservation standard. If adopted, the modified emergency regulation would require individual urban water suppliers to evaluate their local water supply portfolio and develop a local conservation standard. The local standard and underlying assumptions would have to be based on the following elements and self-certified to the Board by June 1:

• The amount of available water supplies for the next three years based on current supply conditions, assuming the three years would have very dry conditions mirroring those of the recent drought.
• Demand over the three-year period would be based on each supplier’s average total potable water production for 2013 and 2014.
• All water sources capable of being treated to a potable standard during the three-year projection would be included in the supply calculation.
• The level of local water conservation that would be needed to assure an adequate supply over that time. This would be considered the supplier’s new required conservation standard.

Starting June 1, urban water suppliers would be required to begin making reductions in total monthly potable water production based on their newly calculated conservation standard, as compared to the same amount used in the same month in 2013.

Until now, only retail water suppliers have been subject to the emergency conservation requirements. Under the new draft, wholesale water suppliers would be required to make projections about how much water they would be able to deliver to each of their retail suppliers under the three-dry-years scenario. The draft regulation would require this information to be provided to a wholesaler’s retail customers no later than June 8. 

Under the draft regulation, monthly reporting requirements for urban water suppliers would remain in place. Small water suppliers also would remain subject to monthly potable water production reporting requirements through November, but would no longer have to comply with outdoor irrigation limitations or achievement of 25 percent reductions in potable water production.

Comments on the draft regulation must be received by noon on May 16. If approved May 18, the new emergency regulation would be effective from June 2016 through the end of January 2017. More information can be found here.  

For more information on these draft regulations, 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.

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