The State Water Resources Control Board (“Water Board”) issued the Proposed Emergency Regulations (“Emergency Regulations”) to implement Executive Order B-29-15 (“Executive Order”) on April 28, 2015.  The Emergency Regulations are designed to reduce portable urban water use by 25% as compared to 2013 use through February 28, 2016.  The Emergency Regulations are one of the final steps in the expedited rulemaking procedure that began on April 1, 2015, when the Governor issued the Executive Order.  The Water Board has received over 500 comments in the process thus far.

The Emergency Regulations largely follow the Draft Emergency Regulations (“Draft Regulations”) that were issued on April 18, 2015.  Discussed below are the changes the Emergency Regulations make to the provisions of the Draft Regulations.

Urban Water Suppliers

The Emergency Regulations include the same nine tiers of conservation standards included in the Draft Regulations.  However, the Fact Sheet for the Emergency Regulations indicates that the Water Board is considering doubling the tiers and decreasing the steps between them to a 2% difference between the tiers.

The Emergency Regulations continue to include the two situations in which an urban water supplier may request to be placed in a lower conservation tier, but there is a slight change to the requirements for an urban water supplier with a reserve supply of surface water.  An urban water supplier seeking a reduction in their conservation tier based on a reserve surface water supply must demonstrate that the alternate surface supply has a minimum of four years’ reserved supply.

Small Water Suppliers

Small water suppliers are subject to the same requirements that have been included for them throughout this process.  They must limit outdoor irrigation with portable water to no more than two days per week or reduce potable water consumption by 25% and submit a report on December 15, 2015, that shows the small water supplier has complied with one of those requirements.

Self-supplied Commercial, Industrial, and Institutional Users

The Emergency Regulations continue to require that commercial, industrial, and institutional users not served by either an urban water supplier or a small water supplier limit their outdoor irrigation to two days per week or achieve a 25% reduction in potable water use.  This provision is a result of Section 5 of the Executive Order which lists uses such as “campuses, golf courses, and cemeteries” as self-supplied users who must implement measures to reduce potable water use by 25%.  The enforcement of this provision of the Emergency Regulations will have to be watched closely as it appears that the Emergency Regulations do not limit the requirements to the uses identified in the Executive Order.  This could mean that the Water Board oversteps its jurisdiction and attempts to regulate users who rely solely on groundwater.

End-User Requirements and Enforcement

The end-user requirement and enforcement provisions have not changed after the Draft Regulations.  Enforcement will begin in July based on the reports for June water use that must be submitted by July 15, 2015.  However, the Water Board makes clear that achieving the 25% reduction is the goal of the Emergency Regulations, and they will work with entities missing their goals by helping to implement tools to curb use, including, rates and pricing, outdoor irrigation restrictions, public outreach, rebates and audits, and leak detection and repair.

Rulemaking Calendar

The following timeline provides the schedule to complete the expedited rulemaking process for the Emergency Regulations:

• April 28, 2015 – Emergency Regulations released.
• May 4, 2015 – Comments regarding the Emergency Regulations must be submitted no later than 10:00 a.m. to commentletters@waterboards.ca.gov with the subject line: “Comment Letter – Emergency Conservation Regulation.”
• May 5 and 6, 2016 – Water Board hearing and adoption of the Emergency Regulations.

The Water Board has moved swiftly to implement these Emergency Regulations in response to the severity of the drought. We will continue to keep you updated on the Emergency Regulations and the state’s response to the drought generally as the situation evolves.  If you have any questions regarding the Emergency Regulations, please contact Barbara Brenner at barbara@whitebrennerllp.com.