On May 9, 2016, the State Water Resources Control Board (“Water Board”) released proposed regulations (“Regulations”) to implement Governor Brown’s Executive Order B-37-16 (“Executive Order”).  The Water Board adopted the Regulations at its May 18, 2016 Board Meeting.  The Regulations will take effect June 1, 2016 and urban water suppliers (“Suppliers”) must report their water conservation target required under the Regulations to the Water Board by June 22, 2016.

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 25% reduction target for 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.  The Executive Order made the prohibitions on water use permanent.

Regulations

The Regulations abandon the current tiered water conservation system and replace it with a system that relies on locally established and certified conservation standards.   The standards are established through the local Supplier’s self-certification of their supply.  That supply is calculated assuming three additional dry years and customer water demand from 2013 and 2014 averages.  Suppliers that would face a shortage are required to comply with a conservation standard equal to the amount of that shortage.  There is no floor of conservation required, meaning that where supply is sufficient based on three additional dry years, a Supplier will not have a mandatory conservation requirement.  Suppliers will be required to report their water conservation levels on a monthly basis through January 2017.

A technical fact sheet providing examples of the supply calculation is available here.  The elements used to make that calculation include:

1. Supply projections for the next three years are based on current supply conditions plus an assumed three-year dry period mirroring the 2012-13, 2013-14, and 2014-15 water years.
2. Demand over the three year period is based on each Suppliers’ average total potable water production for 2013 and 2014.
3. All water sources that are capable of being treated to potable standard during the three-year projected period are included.
4. The conservation standard is calculated as a percentage and rounded to the nearest whole percentage point.
5. Suppliers must provide their analysis and supporting data for their supply conclusions. Reductions equal to a Suppliers’ projected percentage deficiency at the end of the third dry year of the projection period will be the Suppliers’ mandatory conservation standard.
6. Wholesale water suppliers must make projections about how much water they can deliver to Suppliers under the three-dry-year scenario.
7. A regional approach to compliance is allowed if Suppliers can meet the requirements for aggregated regional conservation.

Suppliers that do not submit a water reliability certification and the required supporting information will likely retain their current conservation standard under the tiered 25% reduction system.

For more information from the Water Board regarding the water conservation effort visit: Emergency Conservation Regulations Portal. 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 at (916) 468-0950 or barbara@whitebrennerllp.com or Kerry Fuller at (916) 468-0950 or kerry@whitebrennerllp.com.