June 28, 2018 -- Client Alert
SB 606 and AB 1668 (“Bills”), signed by the Governor of California on May 31, 2018, amend the Water Code to impose a number of new or expanded requirements on state and local water suppliers. SB 606 and AB 1668 set out new water use targets and implement the Governor’s Executive Order to create a permanent framework for water conservation.
In 2016, Governor Brown issued Executive Order B-37-16, entitled, “Making Water Conservation A California Way of Life,” directing the State Water Resources Control Board (“SWRCB”) and the Department of Water Resources (“DWR”) to establish a long-term framework for water conservation and drought planning. The new conservation standards are intended to be a roadmap to a more reliable, affordable and secure water supply for Californians by taking into account the unique conditions of each water agency based on strengthened standards for indoor residential per capita water use; outdoor irrigation in a manner that incorporates landscape areas, local climate, and new satellite imagery data; commercial, industrial, and institutional water use; and water lost through leaks. The updated requirements would also include adequate actions to respond to droughts lasting at least five years, as well as more frequent and severe periods of drought.
SB 606 and AB 1668 were introduced as partner bills by Senator Hertzberg, of Van Nuys, and Assemblymember Friedman, of Glendale, each relying on the other to be passed. SB 606 and AB 1668 build on the Brown administration’s plan to modernize the State’s management framework for drought resiliency by focusing on water use efficiency.
Existing law requires the State to achieve a 20% reduction in urban water use by 2020. (See Water Code §10608.) “Urban water use” means an urban retail water supplier’s daily per capita water use. (See Water Code §10608.12.) The law defines an “urban retail water supplier” as a water supplier, either publicly or privately owned, that directly provides potable municipal water to more than 3,000 end users or that supplies more than 3,000 acre-feet of potable water annually at retail for municipal purposes. (Id.)
The Urban Water Management Planning Act (the “Act”) already requires every urban retail water supplier to submit an Urban Water Management Plan (“UWMP”) to DWR. The Act requires an UWMP to describe the reliability and vulnerability to seasonal or climatic shortage of the water supply. An urban water supplier that does not prepare, adopt, and submit its UWMP to DWR is ineligible to receive certain water grants and loan funding.
Existing law authorizes the governing body of a public water supply distributor to declare a water shortage emergency whenever it finds that the ordinary demands of water cannot be satisfied without depleting the water supply if there would be insufficient water for human consumption, sanitation, and fire protection.
Additions to the Water Code
Pursuant to the Bills, the SWRCB and DWR must establish long-term urban water use efficiency standards by June 30, 2022. Those standards will include components for indoor residential use, outdoor residential use, water losses and other uses.
- Requirements for Urban Water Retailers
The Bills require an urban retail water supplier to calculate an urban water use objective and actual water use by 2023 to be updated by November 1 every year thereafter.
The Bills set a standard limit of 55 gallons per-person, per-day, until January 1, 2025 for residential indoor water use. After that date, the amount will be incrementally reduced over time. On January 1, 2025, it will decrease to the greater of (a) a number selected by DWR or (b) 52.5 gallons per capita daily. On January 1, 2030, the limit will decrease to 50 gallons per capita daily.
For the development of outdoor residential use standards, the Bills require DWR to conduct landscaping and climate studies by 2021. DWR will then provide this data to the SWRCB and local water suppliers for development of urban water use objectives.
An urban retail water supplier that delivers water from a groundwater basin, reservoir, or other source that is augmented by “potable reuse” water may adjust its urban water use objective and receive a bonus. SB 606 defines “potable reuse” water to include both direct potable reuse and indirect potable reuse for groundwater recharge and for reservoir water augmentation as those terms are used in Water Code Section 13561. Under Section 13561, this includes the planned introduction of recycled water either directly into a public water system, or into a raw water supply immediately upstream of a water treatment plant. It also includes the planned use of recycled water for replenishment of a groundwater basin or an aquifer that has been designated as a source of water supply for a public water system. SB 606 establishes a bonus incentive of up to 15% of the urban water supplier’s water use objective for such potable reuse water produced in an existing facility.
The Bills require each urban retail water supplier to adopt an UWMP before July 1 in years ending in “6” and “1” to include a simple description of the agency’s plan. The plan must contain a drought risk assessment that examines water shortage risks for a drought lasting the next 5 consecutive years and a water shortage contingency plan to consist of certain elements, including annual water supply and demand assessment procedures, standard water shortage levels, shortage response actions, and communication protocols and procedures.
By June 1st of each year, an urban retail water supplier is obligated to conduct an annual water supply and demand assessment and submit an annual water shortage assessment report to the DWR with information for anticipated shortage, triggered shortage response actions, compliance and enforcement actions, and communication actions consistent with the supplier’s water shortage contingency plan. An urban water supplier is then required to follow the procedures and implement the shortage response actions in its water shortage contingency plan, where feasible and appropriate. Before a water shortage emergency can be declared, the urban water supplier is required to coordinate with any city or county within which it provides water. Amended water shortage contingency plans must be submitted to DWR within 30 days of adoption.
- Requirements for Small Water Suppliers and Rural Communities
AB 1668 requires DWR, in consultation with the SWRCB, to propose to the Governor and Legislature by January 1, 2020, recommendations and guidance relating to the development and implementation of countywide drought and water shortage contingency plans for small water suppliers and rural communities. The SWRCB and DWR are then obligated to identify small water suppliers and rural communities that may be at risk of drought and water shortage vulnerability and provide recommendations for drought planning. This information will be provided to relevant counties and groundwater sustainability agencies.
- Requirements for Agricultural Suppliers
Agricultural water suppliers are also required to adopt water management plans. The plan must be updated before April 1, 2021 and thereafter on or before April 1 in the years ending in “6” and “1.” The plan must be submitted to the DWR within 30 days after adoption.
Consequences of Failure to File a Plan
The Bills impose civil liability for a retailer’s violation of a regulation up to $1,000 per day that the violation occurs. If an urban water supplier does not prepare, adopt, and submit its urban water plan to DWR, the supplier is ineligible to receive any water grant or loan unless it complies with the requirements for adopting a plan.
AB 1668 permits the DWR to contract with certain entities to prepare or complete a plan on behalf of an agricultural water supplier if DWR has not received a plan or determined that the plan submitted is noncompliant.
SB 606 and AB 1668 represent a move beyond temporary emergency drought measures with mandatory percentage cut-backs, toward adoption of permanent water budget-based changes to prepare for periods of limited water supply.
For further information, please contact Christine Carson at Aleshire & Wynder, LLP, at (949) 223-1170.
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Please seek legal advice before acting or relying upon any information in this communication.