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California Drought Advisory – Water Conservation Regulations

After an expedited rulemaking process, the State Water Resources Control Board’s (“Water Board”) emergency drought regulations (“regulations”) became effective when the Office of Administrative Law approved them on May 15. The regulations are designed to result in an immediate statewide 25% reduction in potable urban water usage, in compliance with the Governor’s April 1, 2015 Drought Emergency Executive Order (“Order”). The regulations will remain in effect for 270 days, unless the Water Board determines that they are no longer necessary, due to changed conditions. Agencies subject to the regulations must begin implementation immediately.  To support implementation, the Governor has committed funds through legislation and state budget revisions and the Water Board has approved funding guidelines.

Conservation Standards

The regulations will require urban water suppliers (suppliers serving more than 3,000 connections) to meet individualized water-conservation standards.  Urban water suppliers are assigned to one of nine conservation standards (requiring a reduction of between 4% and 36%). Consistent with the Governor’s directive, the Water Board assigned urban water suppliers to higher or lower conservation standards based on their per-capita water usage. Each urban water supplier’s conservation standard can be found here. The conservation standard will be applied on a monthly basis beginning in June 2015 and continuing through January 2016 relative to the water usage in the same month in 2013. Compliance will be measured on a cumulative basis, meaning a water supplier assigned a conservation standard of 25% that reduces usage by 30% in June would not be out of compliance if it failed to meet the 25% standard in July, so long as the cumulative reduction over the two months is more than 25%.

The Water Board has advised that agencies failing to meet the conservation standard can be issued cease and desist orders and the Water Board can impose civil liability of $10,000 per day for violations of the orders.

Non-urban water suppliers can choose between implementing either a 25% reduction or restricting outdoor irrigation to two days per week.

The regulations will allow urban water suppliers to seek a reduced conservation standard if more than 20% of their water is supplied to commercial agriculture or if they have adequate supplies of local surface water. Requirements to apply for the reduced conservation standard were issued on May 21 and are available here.

Irrigation Restrictions

The regulations prohibit irrigation outside of newly constructed buildings not in compliance with standards to be issued by the Building Standards Commission and the Department of Housing and Community Development. The Building Standards Commission will consider regulations on May 29 to implement this aspect of Governor’s directive.

The regulations also prohibit irrigation of public street medians with potable water.  The prohibition against irrigation could potentially apply to turf that provides storm water treatment, slope stabilization, or even dust control functions. One of the Fact Sheets accompanying the draft emergency regulations indicates that implementation guidance will be provided on these prohibitions to ensure that “existing trees remain healthy and do not present a public safety hazard.”

State Funding for Drought Relief

Over the past few months, the state has taken a number of actions to support public agencies’ drought response efforts and Water Board program implementation. On March 27, 2015, the Governor approved a $1 billion emergency drought relief package allowing the Water Board to develop and implement new drought response programs. As a result, on May 19, the Water Board approved guidelines for $19 million in funding to help public agencies, community water systems, not-for-profit organizations, and tribal governments meet emergency drinking water needs.  Additional information and resources on this program can be found here.

On May 14th, the Governor released his May Revision of the State Budget, which includes an additional $2.2 billion in one-time resources to continue the state’s response to drought impacts.  $1.7 billion is allocated for State Water Board Programs.  The Governor proposed a portion of the funds to support local agency and small community efforts to build or upgrade their wastewater systems to meet current standards.

Meyers Nave’s Multidisciplinary Drought Response Team: For nearly three decades, Meyers Nave has assisted public and private clients confronted with complex regulatory and legal challenges. California’s historic drought is raising the stakes and increasing the complexity of water issues that were difficult in times of normal water supply. The drought has also spurred development of new laws and regulations, including the State Water Resources Control Board’s emergency regulations and the Sustainable Groundwater Management Act. The most creative, effective and practical solutions to these new challenges require the comprehensive expertise of our multidisciplinary Drought Response Team, which consists of attorneys who specialize in all key areas of law including Land Use, Environmental, Litigation, Eminent Domain, Infrastructure Development, Construction, and Public Agency, Contracts and Finance. www.meyersnave.com