On April 18, 2015, the State Water Resources Control Board (“Water Board”) took the next step in the process of implementing Executive Order B-29-15 (“Executive Order”) issued on April 1, 2015 and released Draft Emergency Regulations (“Draft Regulations”) to reduce portable urban water use by 25% as compared to 2013 use through February 28, 2016. The Regulations follow a brief comment period on the Water Board’s Proposed Regulatory Framework (“Framework”) that was released on April 7, 2015. The Water Board received over 250 comments on the Framework, and the Draft Regulations address a number of the concerns raised about the Framework.

The Draft Regulations still address three different categories of regulations: urban water suppliers, small water suppliers, and additional prohibitions and end-user requirements. Discussed below are the changes the Draft Regulations make to the provisions of the Framework.

Urban Water Suppliers

The Framework originally proposed a four tier system to impose conservation standards on urban water suppliers based on the suppliers’ residential per capita average use from July through September 2014. Those tiers have been further refined and expanded to nine tiers in the Draft Regulations. This change responds to a number of comments that questioned the equity of the previous four tier approach, and provides a more nuanced system of conservation. Urban water suppliers must start complying with these conservation standards on June 1, 2015. The table below details the new conservation standards that will be imposed.

In addition to the expanded conservation tiers, the Draft Regulations also provide two situations in which an urban water supplier may request to be placed in a lower conversation tier. First, an urban water supplier delivering more than 20% of their total water production to commercial agriculture may request to remove that water from the amount of water subject to their conservation standard, resulting in a lower conservation requirement. Second, where an urban water supplier has a reserve supply of surface water that can last multiple years, they may request to be placed in a lower conservation tier. A number of factors will be used to evaluate whether the supplier may be reassigned to the lower tier including the source of supply, precipitation amounts, and the number of years the supply could last.

The Draft Regulations provide urban water suppliers with the more individualized conservation standards, but it does not dictate how the supplier achieves that standard. Urban water suppliers may achieve the conservation standard through reductions in both residential and non-residential use. The Water Board is considering whether suppliers will be allowed to cooperate and achieve collective conservation standards, but reserves that the group as a whole would need to achieve the same amount of water savings they would as individual suppliers.

Small Water Suppliers

The Draft Regulations make no changes to the requirements that were proposed in the Framework for small water suppliers. They will be required to achieve the 25% water use reduction standard or restrict outdoor irrigation to no more than two days per week. They will also have to submit a one-time report on December 15, 2015.

Additional Prohibitions and End-User Requirements

All end-user requirements in place before the most recent Executive Order and those imposed in the Framework are included in the Draft Regulations. In addition, the Draft Regulations require large landscape users that are not served by either an urban water supplier or a small water supplier to either achieve the 25% potable water use reduction requirement or limit outdoor irrigation to two days per week.

Enforcement

The Draft Regulations include enforcement provisions, establishing two new enforcement tools: a conservation order and an informational order. A conservation order can be used to direct specific action to correct non-compliance while an informational order would require a supplier to report their water use or face immediate enforcement. The violation of either order carries a penalty of up to $500 per day.

Rulemaking Calendar

The following timeline outlines the continued expedited rulemaking process the Water Board is following to implement the Executive Order.
• April 18, 2015 – Draft Regulations released.
• April 22, 2015 – public comment on the Draft Regulations due to Jessica Bean (Jessica.Bean@waterboards.ca.gov)
• April 28, 2015 – formal notice of the final emergency regulations will be given.
• May 5 and 6, 2016 – Water Board hearing and adoption of the emergency regulations.

The Draft Regulations continue the implementation of the Executive Order. With the severity of the drought, the Governor and Water Board are moving as quickly as possible to address the problem.

We will continue to keep you updated on the status of these regulations and the state’s response to the drought generally as the situation evolves. If you have any questions regarding the Draft Regulations, please contact Barbara Brenner at barbara@whitebrennerllp.com.