State Water Board Adopts New Approach to Urban Water Conservation in Extended Emergency Regulations

Following a season of increased rain and snowfall in certain parts of the state, on May 9, 2016, Governor Brown issued a new Executive Order, signaling a major change in the state’s approach to water conservation.  The new Order directs the State Board to adjust and extend its emergency water conservation regulations through the end of January 2017 in recognition of the varied water supply conditions for many communities.  Adopted by the Board on May 18, 2016, the new Emergency Regulations replace existing state-imposed “top-down target setting” with an approach that allows each urban water supplier to develop and comply with its own individualized conservation standard based on its specific water supply and demand.  This new and flexible approach is likely a welcome change for many agencies and their customers.

The new conservation standards will take effect June 1, 2016 and remain in effect until the end of January 2017. According to some reports, the regulation will include a deadline of June 22, 2016, for each urban water supplier to calculate and report (on a form soon to be provided) to the Board the conservation standard that the supplier will meet.  If a water agency can document it has sufficient supplies, the Board acknowledged that a conservation standard as low as zero can be adopted.  Numerous prohibitions from prior regulations will remain, such as a ban on cleaning driveways with potable water.

In contrast to the prior regime, which was based on state-mandated demand reductions, the new Emergency Regulations will require individual urban water suppliers to self-certify the level of available water supplies they have, assuming three more dry years, and the level of conservation necessary to assure adequate supply in that scenario. Suppliers that would have an inadequate supply after a third dry year will be required to adopt conservation standard that would ensure an adequate supply.

Under the Regulation, water supply reliability will be calculated as follows:

• The supply projection for the next three years will be based on current supply conditions plus an assumed three-year hydrology mirroring the 2012-13, 2013-14, and 2014-15 water years. (A water year runs from October 1 through September 30.)
• Demand over that same period would be based on each supplier’s average total potable water production for 2013 and 2014.
• Suppliers must factor into their calculations all of their water sources that are capable of being treated to potable standard during the three-year projected period.
• Suppliers’ conservation standards will be calculated as a percentage and rounded to the nearest whole percentage point.
• Suppliers must self-certify accuracy of their conclusions and provide their analysis and supporting data. The State Water Board will post information provided by suppliers on its website and assign each supplier, as a mandatory conservation standard, reductions equal to the supplier’s projected percentage deficiency in supply at the end of the third dry year.
• Wholesale water suppliers will be required to make projections about how much water they will deliver to retail water suppliers under the three-dry-years scenario.

The prior conservation standards will continue to apply if a supplier chooses not to participate in the new self-certification system.

__________________________________________________________________

Meyers Nave’s Drought Response Team: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