On May 9, 2016, Governor Brown issued Executive Order B-37-16 (“Executive Order”), entitled Making Water Conservation a California Way of Life, further refining and making permanent water conservation requirements across the state. Shortly after the Executive Order was issued, the State Water Resources Control Board (“Water Board”) released proposed regulations (“Regulations”) for public comment implementing the Executive Order. The Water Board will review and consider the Regulations for adoption at its May 18, 2016 Board Meeting and will take public comment on the Regulations until 12 noon on Monday, May 16, 2016. If adopted, the Regulations would take effect in June 2016 and remain in effect until the end of January 2017.

Emergency Conservation Background

The current Executive Order is the seventh in a series of executive actions since 2014 to address California’s drought. These executive actions have limited the ways Californians may use water and established the current target of a 25% reduction in urban water use. The Water Board implemented a tiered system of water use reduction to achieve the 25% reduction goal in May 2015 and slightly amended those tiers in February 2016 to reflect greater consideration of localized factors that were influencing water use. Throughout the executive actions and related regulations to address the drought, several prohibitions on water use, such as using water to wash sidewalks and watering that results in runoff, have been in place to increase efficient water use and reduce water waste.

Executive Order

The current Executive Order is focused on long-term water management to achieve the goal of making water conservation a way of life in California. In pursuit of this goal, the Executive Order permanently prohibits the follow uses of potable water:

– Hosing off sidewalks, driveways, and other hardscapes
– Washing automobiles with hoses not equipped with a shut-off nozzle
– Using non-recirculated water in a fountain or other decorative water feature
– Watering lawns in a manner that causes runoff, or within 48 hours after measurable precipitation
– Irrigating ornamental turf on public street medians

The Executive Order also authorizes the Water Board to adjust the current emergency water conservation regulations to reflect the differing water supply conditions across the state. The Regulations the Water Board released are an exercise of this authorization.

Regulations

The Regulations abandon the current tiered water conservation system and replace it with a system that relies on locally controlled conservation standards based on local supply and conditions. Under the Regulations, urban water suppliers (“Supplier”) submit a report to the Water Board on June 15, 2016, identifying the conservation standard the Supplier will meet based on its water supply. The calculation of the Supplier’s water supply assumes three additional dry years and customer water demand from 2013 and 2014 averages. A technical fact sheet providing examples of the supply assessment calculations required under the Regulations is available here. The Supplier will then be required to meet the conservation standard each month between June 2016 and January 2017 and report its water use for each of those months on a monthly basis. To confirm that the Supplier’s water conservation standard is accurate, both urban water suppliers and wholesale suppliers must report the underlying basis for their water supply assessments.

Recent Enforcement Actions

While the Water Board continues to adjust its approach to the drought response with the evolving water conditions, it also continues its efforts to enforce the conservation requirements. In October 2015, the Water Board imposed administrative civil liability in the amount of $61,000 on four urban water suppliers for failing to meet their water conservation requirement under the tiered system. One of the urban water suppliers paid the fine while the remaining three suppliers entered into negotiations with the Water Board.

On April 14, 2016, the Water Board provided public notice that it had entered into a proposed settlement with the first of the three suppliers that elected to negotiate. The proposed settlement redirects the administrative civil liability amount to a supplemental environmental project (“SEP”), establishing a landscaper certification program for professional landscapers. The certification program is then required for all professional landscapers to obtain or renew a landscaping business license in the supplier’s jurisdiction. Enforcement efforts like this one are likely to continue with the water conservation system proposed in the Regulations.

Public Hearing on Resolution and Written Comments

The public comment period on the Regulations is open until 12 noon on Monday, May 16, 2016 and can be submitted to commentletters@waterboards.ca.gov with the subject line “May 18, 2016 BOARD MEETING (Conservation Extended Emergency Regulation)”.

For more information from the Water Board regarding the water conservation effort visit: Emergency Conservation Regulation. We will continue to keep you updated on developments in the drought response and action taken by the Water Board. If you have any questions regarding the Regulations, please contact Barbara A. Brenner or Kerry Fuller by phone or email at (916) 468-0950 or barbara@whitebrennerllp.com and kerry@whitebrennerllp.com.