Yesterday, the State Water Resources Control Board released the draft emergency conservation regulation for review and public comment. The proposed regulation extends the requirements of the existing regulation but has modest adjustments available to respond to concerns suppliers have raised to the State Water Board since adoption of the first regulation in May of 2015. The proposed regulation is expected to be considered State Water Board’s February 2nd board meeting. (Click here for the proposed emergency regulation; click here for the fact sheet.)
After the documents were released, State Water Board officials held a media call to explain the regulation to the press. On the call was Felicia Marcus, Chair of the State Water Resources Control Board; Eric Oppenheimer, Chief Deputy Director, and Dr. Matthew S. Buffleben, Chief Special Investigations Unit, Office of Enforcement. Also assisting on the call during the question and answer period was David Rose from the Office of Chief Counsel.
Here’s what they had to say.
FELICIA MARCUS, Chair of the State Water Resources Control Board
“This is another step in our efforts to fine tune and extend the emergency conservation regulations following the Governor’s January 2014 declaration of a drought in California. This is just a draft regulation going out for further comment.
It’s very important to understand that the bottom line is that the recent rain and snow are an extremely welcome start to the rainy season; however, we have to keep conserving, El Nino or not. Our water deficit is more than a year’s worth of precipitation, we still aren’t even close to where we need to be and conserving what we have is the most cost effective way to stretch our supply. We don’t know if the next 2 months are going to bring us the considerable rain and snow that we need to make a dent in this drought, and we certainly don’t know what will follow that. Even if we have promising Las Vegas odds, we are not going to bet on the weather. Weather probably has better odds than the lottery, but that’s about all.
We simply cannot pull back too much on conservation when we’re still in the worst drought we’ve seen since records started being kept; the worst drought in modern history, and we know from geophysical evidence, it is nowhere near the longest drought in prerecorded history in California. We know that the 3 to 4-year drought cycle of the last 100 years is not the historic norm, just as it wasn’t in Australia when they got hit with their 10 to 12 year millennial drought after 100 years of 3 to 4-year droughts, so we need to be conservative here.
According to the latest data from the Department of Water Resources, while snowpack to date is encouraging, the status of our reservoirs should give all Californians pause. The major water supply reservoirs in the north state started the season at historic lows; they’ve seen some increased inflows but they are still very low and well below average today and lower than last year. Statewide, many other reservoirs continue to be low and they are still lower than they were last year at this time. Groundwater elevations in many parts of the state continue to fall and will take many years to recover to pre-drought conditions, and some will not recover at all. So, residential water users should keep up the efforts to conserve and comply with urban water supply directives to switch to fall and winter watering schedules of once a week or less, to keep those sprinklers off after it rains for a couple of days, and to maintain water conservation through the winter, every way they can.
People have done a great job of letting their lawns go California golden, and converting to drought tolerant landscaping when they can afford it. Some agencies have given terrific rebates to help do that and they deserve extraordinary praise. Not all have or can do so, but there are some rebates still available through the state, so please list the www.SaveOurWaterRebates.com to give folks details on more, and that includes toilet rebates as well.
Please also continue to send folks to www.SaveOurWater.com for tips on how to save water, and as we’ve said each time, SaveOurWater and California Relief had partnered to provide tips on tree care during the drought, SaveOurWater/trees for more info. Some of you have written those stories and it’s particularly important to water trees and water them correctly.
This is a staff draft which will undergo even more public review and continuing conversation with the water user and environmental community. Our board will consider it early next month. We’ll listen to everyone and as we usually do, we’ll approve it or make changes before approving this next phase of the emergency regulation.
We’re proposing to extend the regs now because they expire next month, but we’re not going to know until April what this rainy season will truly bring us. That will be the appropriate time to make more significant adjustments, or step back from the emergency nature of this work. As I’ve said, ‘it’ ain’t over ‘til it’s over’ in this. We’re still in the very early innings of the rainy season. A nice score in the first couple of innings doesn’t mean you can coast through until the 9th. Also I want to say that we’re not taking our foot off the gas here. This is just a potential tune up as we extend and with that, I’ll be back for Q&A.
Now for the greater detail for what staff is proposing, I’m going to turn to Eric Oppenheimer.”
ERIC OPPENHEIMER, Chief Deputy Director, State Water Board
“As many of you know, on November 13, the Governor issued Executive Order B-36-15 calling for an extension of urban water use restrictions through October of this year, should drought conditions persist. Given the severity of the water deficit over the last four years, many of our reservoirs and groundwater basins remain depleted and the need for continued water conservation does persist.
The November Executive Order directs the State Water Board to consider modifying the restrictions on water use and incorporate insights gained from the existing restrictions, so following a series of meetings we had with stakeholders and the December 7th public workshop to discuss any needed revisions, our staff issued a framework for public consideration on December 21st. Since then, we’ve received more than 200 thoughtful comments from the public, from stakeholders, and from others on the framework. We’ve also had a myriad of additional conversations with water suppliers and interested individuals and other stakeholders in general on next steps, so we built on that framework with the release of the draft regulation today, and we continue our efforts to be responsive to the call for more flexibility and credit in areas that were not addressed in the four prior emergency water conservation regulations that you’ll recall began back in July of 2014.
The State Water Board staff considered all comments, and has offered a number of revisions. These suggested changes recognize and are our responses to the diverse geographic and economic challenges facing water purveyors statewide.
So next I’m going to walk you through some of those changes and the aspects of the proposed draft emergency regulation that differ from the last version in May of 2015 version.
We now have credits and adjustments that have been proposed for urban water supplier’s conservation standards and they range from 2% to a maximum of 8%. In some cases, water suppliers would be automatically adjusted based on conditions within their service areas, and in other cases, they would have to apply for the credits.
The draft regulation provides flexibility in possible credits in three main ways: First, by considering the differences in climate affecting different parts of the state; second, by providing a mechanism to provide for growth experienced by urban areas; and third by providing credits for significant investments made by suppliers toward creating new local drought resilient sources of potable water supply from what would have otherwise been non-potable water.
The draft regulation reiterates that there are penalties for homeowner’s associations or community service organizations that block, stifle, or threaten homeowners from reducing or eliminating the watering of vegetation or lawns during declared drought emergencies. While this is state law already, a decision was made to include it in the draft regulation so urban water suppliers clearly can use this in their enforcement efforts. While the State Water Board has an enforcement role here, this type of enforcement is most likely most effective if done at the local level.
The draft regulation further defines what agricultural uses may be subtracted from suppliers total potable water production. The agricultural use issue has created some confusion and required the State Water Board staff to clarify specifics to water suppliers and it’s our hope that the changes that we’ve incorporated here will provide that needed clarity.
One feature that we do want to make clear is that the adoption of this draft of the emergency regulation provides a continuum of existing conservation efforts. In other words, water agencies wont’ have to reset their conservation clocks here. They will continue with the conservation totals accrued to date since June of 2015, and 2013 will continue to be the monthly baseline that we compare each month’s conservation or water savings against.
There’s also been a lot of speculation as to where this puts the 25% conservation mandate. The regulation is still designed around the original framework to achieve 25% savings, but assuming that the some of the 400+ water agencies either adopt or apply for some of the credits offered in this latest draft of the regulation, in aggregate we could see a few percentage point drop in totals from that 25%, but it will continue to be the same degree of urgency and individual water suppliers will still have specific conservation targets assigned to each agency.
The goal here is to be responsive to the reasonable concerns that have been brought to light while maintaining our vigilance. We know that the conservation rate is going to exceed 20% moving forward, but we anticipate that the number will be between 20 and 25%, likely closer to the 25% mark, in the instance urban water suppliers decide to apply for these credits and maximize these credits. But I want to be clear that we’re still at a preliminary draft stage here and as Felicia has already mentioned, it will be the Board, after another round of comments on this proposed draft, and after a hearing, that will decide the ultimate shape of this extension.
Once adopted, the regulation is still going to save the state well above 1 MAF by October of 2016. To give you some perspective, that’s enough water to serve an average of 2 million California families for a year. It’s also about equal to the total storage of Folsom Lake, so it’s a lot of water that’s potentially going to be saved here.
Finally, it’s my understanding that the State Board fully intends to revisit and possibly modify these emergency regulations sometime in April of this year, once we have better hydrologic information as to whether the state is in a fifth year of drought or not.
So next I’m going to turn this over to Dr. Biffleben to discuss and give an update on our enforcement activities.
DR. MATTHEW S. BIFFLEBEN, Chief, Special Investigations Unit, State Water Board Office of Enforcement
The last two months have been extremely busy for the Office of Enforcement as we try to ensure the emergency regulation is fully and fairly implemented. Up and down the state, residents and water suppliers have been making the sacrifices needed to help California meet its conservation goals and they should be applauded.
However, there are some urban water suppliers that simply aren’t doing enough to meaningfully contribute to the Governor’s overall goal. We have met with suppliers that have struggled to meet their standards; we’ve encouraged and in some cases, required these suppliers to improve and implement additional water conservation measures. We’ve reminded suppliers that conservation was critical during the summer months since it’s difficult to meet the conservation standards during the winter months.
Overall, about one-third of the urban water suppliers are not meeting their water conservation standard. We separated these suppliers into four categories, based on how far away they were from meeting their standard. In the first group, we sent 82 warning letters to suppliers that were within 5 percentage points of meeting their standards and encouraged them to implement additional water conservation measures. For suppliers that were 5 to 15 percentage points from meeting their standard, we sent them a notice of violation and an information order that required the supplier to send in to the Water Board information about their conservation program. We sent about 108 of these notices of violation informational order combinations. For suppliers that missed their conservation standard by more than 15 percentage points, we met and discussed the circumstances preventing them from meeting their standard. Most of these suppliers received a conservation order that required them to implement additional water conservation measures. We’ve issued 12 conservation orders, and one will be rescinded since the supplier has exceeded their conservation standard.
In addition to the listed actions, we ranked the suppliers based on the volume of water and the percentage points away from the conservation standards. Based on that analysis in late October, we issued financial penalties of $61,000 each to four urban suppliers: Beverly Hills, Coachella Valley Water District, Indio Water Authority, and the City of Redlands. Beverly Hills paid the penalty and we are in negotiations with the other three.
The Office of Enforcement is committed to a full and fair implementation of the emergency regulation during this epic drought. Millions of Californians have demonstrated their commitment to saving water during this drought, and their extraordinary efforts have allowed us to exceed the Governor’s 25% reduction mandate. Nevertheless, we could have saved even more if some of the residents, businesses, and institutions in the communities that were not meeting the conservation standard had stepped up in the same way that their fellow Californians have.
In conclusion, people are continuing to show their commitment to water conservation and we need to sustain it through these cooler winter months. Save water, save trees, and save money with rebates for turf removal and toilet replacement.
Questions and answers
The call was then opened up for questions. Here are the highlights.
Question: The enforcement provision of these new rules, does it change at all in terms of the different warning letters, and the potential for fines. Are you going to be dialing that back at all or is that going to be basically the same … ?
Dr. Matthew Biffleben: It will essentially be the same. The tools we have will be the same, and we’ll follow our informal process and potentially go through a formal process on a case by case basis.
Question: Can you explain what the Drought Resilient Supply credits are, what that actually entails? Are we talking about desalination, groundwater storage … ?
Eric Oppenheimer: It applies to new supplies that have been developed since 2013 that are local and that don’t detract from other users of water or the environment. Typically, technologies like desalination or indirect potable reuse of water where wastewater is infiltrated back to groundwater basin and then pulled out for consumptive use later would be the types of projects that would qualify. The types of projects that may not qualify would simply be like conjunctive use of groundwater, and again there is a constraint at least in the staff proposal that it only apply to sources that have been developed since 2013.
Question: My understanding is this wouldn’t change any city or water district’s supply by more than 8% in terms of their conservation rate?
Eric Oppenheimer: That’s correct. Their conservation standard could be reduced as much as 8% and the way the credit is structured, a supplier can only use this credit if 4% of their supply comes from one of those drought resilient sources I described, and up to 8% of their supply they can get credit for, so the credit would range from 4 to 8%, depending on the individual supplier’s water portfolio and how much of it came from one of these sources.
Question: Why relent at all on the 25%? Why give folks adjustments or lower that amount at all, given that the state has exceeded that goal so far?
Felicia Marcus: We spent a lot of time talking to people, much more time than we had when we were doing the regs, and some of them made a compelling case for adjustments that are relatively minor but adjustments that recognize some of the extraordinary investments they’ve made, and in one case to actually add water that wouldn’t have been there in addition to conserving. The theory we always said was we were open to was some adjustment if we have a little bit of time, so after all those conversations, staff suggested adjustments and fine tuning, even as we’re ‘steady as she goes’ until we know where we are in April. I think the attempt is to try and be reasonable.
Eric Oppeneheimer: We wanted to incorporate and be responsive to some of the calls that we heard for equity due to issues like climate and we also wanted to make sure at a minimum that our actions weren’t creating a disincentive towards suppliers diversifying their supplies and developing drought resilient supplies. At the same time, we are cautious. I would characterize these as modest adjustments that recognize these supplies and provide some additional equity and some additional flexibility but they are modest and we are still moving full steam ahead with conservation at this point.
Question: Besides the cap of 4% previously which is now 8%, are there any other major differences between the framework released in December and this?
Eric Oppenheimer: That is one of the big differences. The other is the change for the specific credit for drought resilient supplies, that was individually also capped at 4% and now we have this range of 4-8%. Those are the two big changes.
Question: Some of the agencies around the Sacramento area who have invested in groundwater augmentation and what they call sustainable groundwater management are kind of upset; they feel they’ve invested millions of dollars and they are not getting any credit here. Can you speak to that?
Eric Oppenheimer: You have to look at the whole package. First off, we’re providing a range of credits and flexibility so a lot of those suppliers in the Sacramento region I would imagine would be eligible for some sort of climate adjustment. Specifically speaking to the groundwater issue, the drought is still on and a lot of water suppliers statewide rely on groundwater. It’s very difficult to provide credits that for one user that could affect another user within the same basin or could have an environmental impact and at this point, where we are now, it just wasn’t workable to incorporate a broader range of credits.
David Rose: What was released today was the draft regulatory language which was following on the heels of the staff proposed framework of December 21st, and in the framework, there’s discussions of each of the general topics that were proposed that we’ve heard during the workshops essentially since this regulation was proposed back in April of last year. There are a number of explanations in the framework that I wanted to direct you to that really haven’t changed since the draft framework came out that respond to the question of groundwater specifically.
Question: Can you explain why the use of recycled water as a replacement for potable water would not provide a reduction in conservation standard?
Eric Oppenheimer: There is a credit that can be granted for using recycled water for part of your potable production, what’s called indirect potable reuse; there’s other use of recycled water where basically nonpotable water is used, typically for landscape application. Under the current emergency regulation and under the proposal, that water is not included in total potable production, so it’s not like that is part of the equation now. There were some interests that came forward and wanted to add a credit for that, but we’re not proposing that credit mainly for the reason that it isn’t part of what needs to be conserved under the regulation. If we were going to try to make a consideration for that, we’d probably just include it as part of the water supply, but that seemed kind of a really large change from the current approach.
Question … which one is applied and which one isn’t …?
Eric Oppenheimer: Let’s say that you have a wastewater treatment plant and you treat it to a very high standard and you infiltrate that water into the ground through injection or through basins, and then that water is retrieved through potable use, what people would use in their homes as drinking water, that they would get a credit for, as long as 4% of their supply is comprised of that water.
Question: In the Coachella Valley, two of the water districts received fines that are still being negotiated – even with those fines, there’s not been a lot of difference in the last couple of months. Now the original regulation is coming to an end, whether there are going to be any consequences for some of these larger agencies which very clearly have not lived up to what they were supposed to be doing?
Eric Oppenheimer: There’s a little disconnect between what the data is showing and what they are doing. We’ve been in discussions with these agencies and I think all of them have realized that they need to do better and they are implementing other conservation measures. The problem that we’re running into is that these are the winter months and people normally shut off their water during the winter months anyways, so it is very difficult during these winter months to meet that conservation standard. Actually we’re not at all surprised that the conservation numbers are falling during these winter months, so we look at their entire record and we look at things on case by case basis before determining whether or not we want to issue a penalty. So even though their conservation numbers aren’t necessarily moving closer to their standard, we do take account of other actions they are doing.
Question: Asks if they have any specifics on what the credits would be for Bakersfield water agencies.
Eric Oppenheimer: We haven’t gone through and formally calculated revised conservation standards. Some of the changes would automatically be applied, specifically that would be the adjustment for evapotranspiration, so warm climate adjustment, and that’s going to be based off the service area evapotranspiration rate for each individual supplier as compared to the average rate. There’s also a process where if they don’t feel the default value represents their district, they can submit data to adjust that value, so there will be a process leading up. I think we set a date of March 15 for suppliers to provide data that want to get that credit or make adjustments to that credit, so it’s not exactly known at this point. Soon we’ll be putting out our initial numbers for each supplier and where they are at with the ET adjustment, but we haven’t done it yet. I would expect areas in Bakersfield and in the desert would probably be on the higher end of that 2 to 4% adjustment.
For more information …
- Click here for the draft emergency water conservation regulation.
- Click here for the fact sheet on the draft regulation.
- For more information, see the State Water Board page on the emergency water conservation regulation.
To comment on this regulation …
Submit comments by email with the subject line: “2/2/16 BOARD MEETING (Conservation Extended Emergency Regulation)” to: commentletters@waterboards.ca.gov. Comments must be received by 12 p.m. on Thursday, January, 28, 2016 to be considered. The proposed regulation is expected to be considered State Water Board’s February 2nd board meeting
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