Legal Alerts Feb 10, 2016

California State Water Board Issues Directive on Submitting Information to Adjust Conservation Standards

Climate, Population Growth Among New Factors For Mandatory Drought Restrictions

The State Water Resources Control Board released a fact sheet Wednesday detailing the information urban water suppliers will need to submit to receive a conservation standard adjustment under the recently adopted emergency water conservation regulation, which extends water conservation mandates through October. Several key provisions of the regulation could result in water conservation targets being relaxed for some urban water suppliers in warmer regions, as well as in areas with growing populations. The Board also released a preliminary analysis of each urban water supplier’s conservation tier as it relates to the extended regulation. The extended regulation is expected to go into effect later this week, once it is approved by the State Office of Administrative Law.

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 extended 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 adopted several refinements to the existing regulation. The following are among the modifications:

  • A new “climate adjustment” that could reduce conservation standards by up to four percentage points for water suppliers in California’s warmer regions. The climate adjustment would be based on each urban water supplier’s average service area evapotranspiration for July through September, 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.
  • 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 extended regulation, the maximum adjustment to a supplier’s conservation standard would be 8 percent. The 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 California 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 has directed its staff to continue to monitor drought conditions and report back to it in March and April to determine whether the regulation may be rescinded.

The regulation has been submitted to the Office of Administrative Law, which will review and approve or deny the regulation. If approved, the regulation will take effect immediately and remain in effect for 270 days from the approval date.

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.

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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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