Emergency Water Regulations
The State Board’s Emergency Water Use Regulations
What You Need to Know (and do!)
by James D. Ciampa
Lagerlof, Senecal, Gosney & Kruse, LLP
On July 15, 2014, the California State Water Resources Control Board adopted emergency water conservation regulations that impact all Californians and all California water suppliers. Those regulations took effect on July 28, 2014. The regulations do not go into detail as to exactly how they are to be implemented by water suppliers. Importantly, the new regulations do not require a water supplier to declare a “water shortage emergency” under Water Code Section 350, which would require a particular water supplier to find that “the ordinary demands and requirements of water consumers cannot be satisfied without depleting the water supply of the distributor to the extent that there would be insufficient water for human consumption, sanitation, and fire protection.” While the current drought is very serious in some parts of the state, water suppliers in other parts of the state would not be able to make that finding. This article will review the new regulations and then discuss the appropriate action that can be taken by a water supplier to implement those regulations in its service area.
The new regulations can be broken down into four categories: (1) requirements imposed on the general public; (2) requirements imposed on “urban water suppliers” (i.e., under Water Code Section 10617, a supplier who directly or indirectly serves more than 3,000 customers or supplies more than 3,000 acre-feet each year), but wholesaler water service is exempt; (3) requirements imposed on water suppliers who are not “urban water suppliers;” and (4) recommended actions that all water suppliers should take.
1. Requirements Imposed on the General Public. The regulations applicable to the general public prohibit the following actions by any person, except where the water use is necessary to address an immediate health and safety need or to comply with a term or condition of a permit issued by a federal or state agency:
(a) Applying (e.g., hosing or spraying) potable water to outdoor landscapes in a manner that causes runoff that flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots or structures;
(b) Using a hose to wash an automobile with potable water, except where the hose has a shut-off nozzle or device attached to it that causes it to immediately cease dispensing water when not in use;
(c) Applying potable water to driveways and sidewalks; and
(d) Using potable water in a fountain or other decorative water feature, except where the water is part of a recirculating system.
Violation of the above prohibitions is punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs. According to the State Board’s July 24, 2014 guidance, a citation for a violation may be issued by a peace officer or by any employee of a local agency that is charged with enforcing statutes, regulations, and ordinances pertaining to water use, if the local agency has the statutory authorization for such enforcement and has adopted an ordinance empowering any employee(s) to do so. Thus, the issuance of citations for violations of the restrictions by a particular public agency water supplier would depend upon that agency’s statutory power and, if that power exists, which employees are empowered to issue such citations.
2. Requirements Imposed on Urban Water Suppliers.
(a) Limit on Outdoor Irrigation. Every urban water supplier (as described above) must implement the stage of its water shortage contingency plan, which is part of its Urban Water Management Plan, that imposes mandatory restrictions on outdoor irrigation. If the supplier does not have a water shortage contingency plan, the supplier must, within thirty (30) days from the effective date of the regulations (i.e, by August 26, 2014), limit outdoor irrigation by its customers to no more than two days per week or it must implement another mandatory conservation measure or measures to achieve a comparable reduction in water consumption by the persons it serves relative to the amount consumed in 2013. The State Board expects the outdoor use restriction to result in up to twenty percent reduction in water use.
(b) Water Production Reports. Every urban water supplier must prepare and submit to the State Board by the 15th day of each month a monitoring report that includes the amount of potable water the supplier produced, including treated water provided by a wholesaler, in the prior calendar month and must compare that amount to the amount produced in the same calendar month in 2013. Beginning on October 15, 2014, the monitoring report must also include an estimate of the gallons of water per person per day used by the supplier’s residential customers. In its initial monitoring report, the supplier must state the number of persons it serves. The State Board will develop and provide the monitoring report forms.
3. Requirements Imposed on “Other” Water Suppliers. If a water supplier does not meet the definition of an “urban water supplier” (e.g., it provides retail service to less than 3,000 customers), the supplier must take one or both of the actions listed below by August 26, 2014. It must be noted that there is no threshold for these requirements, and that will apply to a retail water system regardless of how few service connections it may have.
(a) Limit outdoor watering by its customers to no more than two days per week; and/or
(b) Implement another mandatory conservation measure or measures to achieve a comparable reduction in water consumption (i.e., 20%) by its customers as compared to the amount consumed in 2013.
4. Recommended Actions. In addition to the mandatory actions that must be taken, the State Board issued the following recommendations for all water suppliers to take:
Educate customers and employees:
- Retail water suppliers should provide notice of the regulations in English and Spanish in one or more of the following ways: newspaper advertisements, bill inserts, website homepage, social media or notices in public libraries;
- Wholesale suppliers should include reference to the regulations in their customer communications;
- All water suppliers should train personnel on the regulations;
- All water suppliers should provide signage where recycled or reclaimed water is being used for activities that the emergency regulations prohibit with the use of potable water, such as operation of fountains and other water features;
- All water suppliers should increase their efforts to disseminate information regarding opportunities and incentives to upgrade indoor fixtures and appliances;
- All water suppliers should use education and the tools available through the Save Our Water website (http://saveourwater.com); and
- All water suppliers should educate and prepare their governing boards on the drought response actions contained in the emergency regulations, and make sure that drought response items are placed on agendas as early as possible.
Increasing local supplies:
- All water suppliers should accelerate the completion of projects that will conserve potable water by making use of non-potable supplies, such as recycled water, “greywater,” and stormwater collection projects;
- All water suppliers should improve their leak reporting and response programs and request that police and fire departments and other local government personnel report leaks and water waste that they encounter during their routine duties/patrols;
- Smaller water suppliers – those with fewer than 3,000 service connections – should take proactive steps to secure their communities’ water supplies and educate their customers about water conservation and the status of their supply reserves;
- All water suppliers should conduct water loss audits and make leak detection and repair a top priority for the duration of the drought; and
- All urban water suppliers should evaluate their rate structures and begin to implement needed changes as part of planning for another dry year. Information and assistance on setting and implementing drought rates is available from the Alliance for Water Efficiency. (http://www.allianceforwaterefficiency.org/).
The State Board has stated that a water supplier’s failure to comply with the mandatory requirements imposed by the new regulations will result in the issuance of a cease and desist order. The subsequent failure to comply with that cease and desist order may result in fines imposed against the water supplier of up to $10,000 per day. Thus, it is important for water suppliers to understand their obligations under the new regulations and to take action to demonstrate they have fulfilled those obligations. One way to take such action is to adopt a resolution or ordinance that describes the water use restrictions to be imposed, as discussed above. The resolution or ordinance should also include findings regarding the existence and severity of the current drought and the resulting need for the water use restrictions, including the need to comply with the new regulations adopted by the State Board. Adoption of such a resolution or ordinance will allow a water supplier to easily demonstrate to the State Board that it has taken action to comply with its obligations under the new regulations.
Upon adoption of that resolution or ordinance, the supplier should provide a summary of the new restrictions to its customers and, if possible, should conduct further outreach to its customers to ensure they understand the restrictions and the need for those restrictions.
In closing, the State Board has clearly signaled the seriousness of our ongoing drought. All water suppliers need to take action to comply with the newly adopted regulations. Further information on the new regulations and related water conservation issues can be found on the State Board’s website at: http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/emergency_regulations_waterconservation.shtml