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State Board Releases Draft Water Conservation Regulations to Achieve Statewide 25% Reduction in Urban Usage; Comments Sought by April 22

Today, the State Water Resources Control Board issued draft emergency regulations to implement the Governor’s April 1, 2015 Drought Emergency Executive Order and requested comments on them by this Wednesday, April 22. The Water Board intends to consider the adoption of final regulations on May 5 or 6, with the regulations becoming effective before June 1.

The Governor’s Order had directed the State Water Resources Control Board to issue emergency regulations to implement various water conservation strategies.  Key among these directives is the “mandatory 25% reduction in potable urban water use with recognition of past conservation achievements.”  The Water Board’s initial framework (released on April 7) would have assigned each water supplier to one of four reduction tiers (10%, 20%, 25%, and 35%), depending on the supplier’s residential gallons-per-capita (R-GPCD) water usage during September 2014.  That date was chosen because it reflected a period when water usage would be at its highest due to outdoor irrigation.  The Water Board received over 250 comments on the initial framework.

The draft emergency regulations take a slightly different approach, resulting in different conservation standards for many water suppliers.  They base the conservation-tier assignments on water usage during three summer months (July, August, and September) rather than on just one month.  In addition, the number of tiers has been increased from four to nine (increasing in increments of 4% from 4% to 36%).

The draft regulations also identify the mechanics of how the conservation standard will work.  The conservation standard would be applied to the same month in 2013.  Thus, a water supplier assigned a conservation standard of 25% would be required to reduce usage by 25% in September 2015 as compared to the amount used in September 2013.  Compliance, however, would be measured on a cumulative basis.  Consequently, 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%.

A list of the proposed tiers for each water supplier can be found here.  The draft emergency regulations make clear that, despite the use of residential per capita use for determination of conservation standard tiers, water suppliers will be free to meet the conservation standard by obtaining reductions in residential and non-residential categories.

The draft emergency regulations would also allow 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.  The Water Board is specifically seeking comment on whether contiguous water suppliers should be permitted to join together to meet a joint conservation standard, with the potential benefits being local flexibility in achieving the same conservation result and uniform messaging across geographic regions. These provisions were not in the initial regulatory framework and were apparently developed in response to comments.

The Draft Emergency Regulation would also implement the Governor’s directives prohibiting the irrigation with potable water (a) of ornamental turf in public medians and (b) outside of newly constructed buildings, except where the irrigator uses a microspray or drip system. The proposed regulatory provisions add little detail beyond what is in the Executive Order.  So there are still many unanswered questions about their implementation. For example, it remains unclear at what point a building is considered “newly constructed” or how, if at all, the State Water Board intends this prohibition to relate to land use entitlements and permitting. The proposed regulations also do not attempt to define what constitutes “ornamental turf.” So, the proposed prohibition could potentially apply to turf that provides storm water treatment, slope stabilization, or even dust control functions. One of the Fact Sheets accompanying the proposed 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.”  As it stands, the prohibitions would apply to the end user of water (the person irrigating). Local agencies and water suppliers are apparently not required or specifically authorized to enforce the end user regulations—which include these new prohibitions and other prohibitions like the one on restaurants providing water to patrons unless requested.

Finally, the regulations provide the Water Board with special enforcement tools to demand that water suppliers perform additional actions to be compliant or provide additional information.

The Water Board intends to issue revised regulations on April 28, after considering comments on the draft emergency regulations. Those regulations will be subject to further public comment before the Water Board’s May 5-6 regular business meeting.