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Statewide Emergency Water Conservation Regulations

SWRCBSTATE WATER RESOURCES CONTROL BOARD
RESOLUTION NO. 2015-0032
TO ADOPT AN EMERGENCY REGULATION FOR
STATEWIDE URBAN WATER CONSERVATION
WHEREAS:
1. On April 25, 2014, Governor Edmund G. Brown Jr. issued an executive order
(April 2014 Proclamation) to strengthen the State’s ability to manage water and habitat
effectively in drought conditions, and called on all Californians to redouble their efforts to
conserve water. The April 2014 Proclamation finds that the continuous severe drought
conditions present urgent challenges across the State, including water shortages in
communities and for agricultural production, increased wildfires, degraded habitat for fish
and wildlife, threat of saltwater contamination, and additional water scarcity, if drought
conditions continue into 2015. The April 2014 Proclamation also suspends the
environmental review required by the California Environmental Quality Act to allow the
emergency regulation and other actions to take place as quickly as possible;
2. The April 2014 Proclamation refers to the Governor’s Proclamation No. 1-17-2014,
issued on January 17, 2014, declaring a drought State of Emergency to exist in
California due to severe drought conditions (January 2014 Proclamation). The
January 2014 Proclamation finds that dry conditions and lack of precipitation present
urgent problems to drinking water supplies and cultivation of crops, which put farmers’
long-term investments at risk. The conditions also threaten the survival of animals and
plants that rely on California’s rivers, including many species in danger of extinction.
The January 2014 Proclamation also calls on all Californians to reduce their water usage
by 20 percent;
3. On December 22, 2014, in light of the continued lack of rain, Governor Brown issued
Executive Order B-28-14, which extends the California Environmental Quality Act
suspension through May 31, 2016 for Water Code section 13247 and certain activities
identified in the January 2014 and April 2014 proclamations;
4. On April 1, 2015, Governor Brown issued a new Executive Order that directs the State
Water Board to impose restrictions on urban water suppliers to achieve a statewide
25 percent reduction in potable urban usage through February 2016; require
commercial, industrial, and institutional users to implement water efficiency measures;
prohibit irrigation with potable water of ornamental turf in public street medians; and
prohibit irrigation with potable water outside newly constructed homes and buildings that
is not delivered by drip or microspray systems; along with other directives;
5. Water Code section 1058.5 grants the State Water Board the authority to adopt
emergency regulations in certain drought years in order to: “prevent the waste,
unreasonable use, unreasonable method of use, or unreasonable method of diversion,
of water, to promote water recycling or water conservation, to require curtailment of
diversions when water is not available under the diverter’s priority of right, or in
furtherance of any of the foregoing, to require reporting of diversion or use or the
preparation of monitoring reports”;
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6. On July 15, 2014, the State Water Board adopted an emergency regulation to support
water conservation (Resolution No. 2014-0038), and that regulation became effective
July 28, 2014 upon approval by the Office of Administrative Law (OAL);
7. On March 17, 2015, the State Water Board amended and readopted the emergency
regulation to support water conservation (Resolution No. 2015-0013), which became
effective March 27, 2015 upon approval by OAL;
8. The current emergency regulation has supported Californians’ water conservation
efforts, with over 125 billion gallons saved from August 2014 through March 2015;
however, statewide water use is only nine percent less than the same months in 2013.
Achieving a 25 percent reduction in use will require even greater conservation efforts
across the state. In particular, many communities must dramatically reduce their
outdoor water use;
9. In many areas, 50 percent or more of daily water use is for lawns and outdoor
landscaping. Outdoor water use is generally discretionary, and many irrigated
landscapes will survive while receiving a decreased amount of water;
10. Although urban water suppliers have placed restrictions on outdoor watering, the State
Water Board continues to receive reports of excessive outdoor water use;
11. Water conservation is the easiest, most efficient and most cost-effective way to quickly
reduce water demand and extend supplies into the next year, providing flexibility for all
California communities. Water saved this summer is water available later in the season
or next year, reducing the likelihood of even more severe water shortages should the
drought continue;
12. Education and enforcement against water waste is a key tool in conservation programs.
When conservation becomes a social norm in a community, the need for enforcement is
reduced or eliminated;
13. Public information and awareness is critical to achieving conservation goals, and the
Save Our Water campaign, run jointly by the Department of Water Resources (DWR)
and the Association of California Water Agencies, is an excellent resource for
conservation information and messaging that is integral to effective drought response
(http://saveourwater.com);
14. Many California communities are facing social and economic hardship due to this
drought. The rest of us can make adjustments to our water use, including landscape
choices that conserve even more water;
15. The California Constitution declares, at article X, section 2, that the water resources of
the state must be put to beneficial use in a manner that is reasonable and not wasteful.
Relevant to the current drought conditions, the California Supreme Court has clarified
that “what may be a reasonable beneficial use, where water is present in excess of all
needs, would not be a reasonable beneficial use in an area of great scarcity and great
need. What is a beneficial use at one time may, because of changed conditions, become
a waste of water at a later time.” (Tulare Dist. v. Lindsay Strathmore Dist. (1935) 3
Cal.2d 489, 567.) In support of water conservation, the legislature has, through Water
Code section 1011, deemed reductions in water use due to conservation as equivalent
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to reasonable beneficial use of that water. Accordingly, this regulation is in furtherance
of article X, section 2 during this drought emergency. This temporary emergency
regulation is not to be used in any future administrative or judicial proceedings as
evidence or finding of waste and unreasonable use of any individual water user or water
supplier subject to this regulation, and are not to affect or otherwise limit any rights to
water conserved under applicable law, including without limitation, water conserved
consistent with Water Code section 1011;
16. Directive two of the Governor’s April 1, 2015 Executive Order directs the State Water
Board to consider the relative per capita usage of each urban water supplier’s service
area and require that areas with high per capita use achieve proportionally greater
reductions than areas with low per capita use;
17. On April 7, 2015, the State Water Board issued a draft framework proposing increasing
levels of required water reduction based upon residential per capita per day use
(R-GPCD) for the proposed regulation, and solicited public comments. The Board
received over 300 comments on the framework, primarily relating to the levels of
required water reduction;
18. On April 18, the State Water Board issued draft regulatory language for public comment
based on the April 7 framework and the comments received. The draft regulatory
language reflected careful consideration of all comments including those directed at the
levels of required reduction. Again, the Board received close to 300 comments;
19. On April 28, 2015, the State Water Board issued a final version of draft regulatory
language for comment, followed on April 29 by a formal public notice that it would
consider the adoption of the emergency regulation at the Board’s regularly-scheduled
May 5 and 6, 2015 public meeting, in accordance with applicable State laws and
regulations. The State Water Board also distributed for public review and comment a
Finding of Emergency that complies with State laws and regulations;
20. As discussed above, the State Water Board is adopting the emergency regulation
because of the continuing emergency drought conditions, the need for prompt action to
prevent the waste and unreasonable use of water and to promote conservation, and the
specific actions called for in the Governor’s April 1, 2015 Executive Order; and
21. Nothing in the regulation or in the enforcement provisions of the regulation precludes a
local agency from exercising its authority to adopt more stringent conservation
measures. Moreover, the Water Code does not impose a mandatory penalty for
violations of the regulation adopted by this resolution, and local agencies retain the
enforcement discretion in enforcing the regulation to the extent authorized. Local
agencies are encouraged to develop their own progressive enforcement practices to
promote conservation.
THEREFORE BE IT RESOLVED THAT:
1. The State Water Board adopts California Code of Regulations, title 23, section 866 and
re-adopts sections 863, 864,and 865, as appended to this resolution as an emergency
regulation;
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2. State Water Board staff will submit the regulation to OAL for final approval;
3. If, during the approval process, State Water Board staff, the State Water Board, or OAL
determines that minor corrections to the language of the regulation or supporting
documentation are needed for clarity or consistency, the State Water Board Executive
Director or the Executive Director’s designee may make such changes;
4. This regulation shall remain in effect for 270 days after filing with the Secretary of State
unless the State Water Board determines that it is no longer necessary due to changed
conditions, or unless the State Water Board renews the regulation due to continued
drought conditions as described in Water Code section 1058.5;
5. The State Water Board directs staff to provide the Board with monthly updates on the
implementation of the emergency regulation and its effect. These updates shall include
information regarding the progress of the Building Standards Commission, Department
of Housing and Community Development, and other state agencies in the adoption and
implementation of emergency regulations or other requirements that implement
increased outdoor irrigation efficiency for new construction. These regulations and other
requirements will extend existing efficiency standards for new construction to the outdoor
environment and ensure that California’s new homes are constructed to meet the
growing demand with the most efficient standards;
6. The State Water Board directs staff to condition funding upon compliance with the
emergency regulation, to the extent feasible;
7. The State Water Board directs staff to work with DWR and the Save Our Water
campaign to disseminate information regarding the emergency regulation; and
8. The State Water Board directs staff to update the electronic reporting portal to include
data fields for the new reporting required by the emergency regulation.
THEREFORE BE IT FURTHER RESOLVED THAT:
9. The State Water Board shall work with DWR, the Public Utilities Commission, and other
agencies to support urban water suppliers’ actions to implement rates and pricing
structures to incent additional conservation, as required by directive eight in the
Governor’s April 1, 2015 Executive Order. The Fourth District Court of Appeal’s recent
Decision in Capistrano Taxpayer Association Inc. v. City of San Juan Capistrano
(G048969) does not foreclose the use of conservation-oriented rate structures;
10. The State Water Board calls upon water suppliers to:
a. ensure that adequate personnel and financial resources exist to implement
conservation requirements not only for 2015, but also for another year of drought
should it occur. Water suppliers that face budget shortfalls due to reduced sales
should take immediate steps to raise necessary revenues in a way that actively
promotes continued conservation;
b. expedite implementation of new conservation programs by minimizing internal
review periods and utilizing emergency authorities, as appropriate;
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c. consider the relative water use and conservation practices of their customers and
target those with higher water use to achieve proportionally greater reductions
than those with low use;
d. minimize financial impacts to low-income customers;
e. preserve safe indoor water supplies in areas with very low R-GPCD and where
necessary to protect public health and safety;
f. promote low-water use methods of preserving appropriate defensible space in
fire-prone areas, consistent with local fire district requirements;
g. educate customers on the preservation of trees;
h. promote on-site reuse of water; and
i. promptly notify staff of the supplier’s need for an alternate method of compliance
pursuant to resolved paragraph 16.
11. The State Water Board calls upon all businesses within California’s travel and tourism
sectors to inform visitors of California’s dire drought situation and actions visitors should
take to conserve water;
12. The State Water Board commends wholesale water agencies that have set aggressive
conservation targets for their retail water suppliers;
13. The State Water Board commends water suppliers that have made investments to boost
drought-resistant supplies, such as advanced treated recycled water and desalination.
Those investments help to make communities more resilient in the face of drought;
14. The State Water Board commends the many water suppliers that have already
surpassed their 20×2020 conservation targets. Long-term conservation efforts are
critical to maintaining economic and social well-being, especially in light of the impacts of
climate change on California’s hydrology;
15. During this drought emergency, heightened conservation that extends urban resilience is
necessary. The State Water Board’s focus is primarily on immediate reductions in
outdoor water use. Some short-term conservation efforts, such as landscape
conversions and installation of efficient appliances, will also support long-term
conservation objectives, and are encouraged wherever possible;
16. The State Water Board recognizes that some commercial and industrial customers,
while accounting for a significant portion of total use in a service area, have already
taken steps to significantly reduce their water consumption and cannot further reduce
their use without substantial impacts. However, the Board also recognizes that in many
areas there are significant opportunities for reductions in water use by industries and
commercial enterprises that have yet to take action, especially those with large areas of
non-functional turf. The Board directs staff to respond promptly upon receipt of any
request for alternate enforceable methods of compliance. If the supplier believes the
conservation standard is unachievable due to firm commercial and industrial water use
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and residential use reductions that would affect public health and safety, it should
provide any supporting information or documentation for an alternate method of
compliance; and
17. Some water suppliers have called for further refinement of the tiers to reflect a range of
factors that contribute to water use, including but not limited to temperature, lot size, and
income. Others have called for an approach that provides greater recognition for early
investments in conservation, the development of local, drought resistant water supplies,
and health and safety needs. These suggestions and many others are important
considerations in the development of a more comprehensive, and long term,
conservation framework. The State Water Board directs staff to work with stakeholders
on a thoughtful process to devise options for extended and expanded emergency
regulations should the drought continue into 2016.
CERTIFICATION
The undersigned Clerk to the Board does hereby certify that the foregoing is a full, true, and
correct copy of a resolution duly and regularly adopted at a meeting of the State Water
Resources Control Board held on May 5, 2015.
AYE: Chair Felicia Marcus
Vice Chair Frances Spivy-Weber
Board Member Tam M. Doduc
Board Member Steven Moore
Board Member Dorene D’Adamo
NAY: None
ABSENT: None
ABSTAIN: None
Jeanine Townsend
Clerk to the Board
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ADOPTED TEXT OF EMERGENCY REGULATION
Article 22.5. Drought Emergency Water Conservation.
Sec. 863. Findings of Drought Emergency.
(a) The State Water Resources Control Board finds as follows:
(1) On January 17, 2014, the Governor issued a proclamation of a state of
emergency under the California Emergency Services Act based on drought conditions;
(2) On April 25, 2014, the Governor issued a proclamation of a continued state of
emergency under the California Emergency Services Act based on continued drought
conditions;
(3) On April 1, 2015, the Governor issued an Executive Order that, in part,
directs the State Board to impose restrictions on water suppliers to achieve a statewide
25 percent reduction in potable urban usage through February, 2016; require commercial,
industrial, and institutional users to implement water efficiency measures; prohibit
irrigation with potable water of ornamental turf in public street medians; and prohibit
irrigation with potable water outside newly constructed homes and buildings that is not
delivered by drip or microspray systems;
(4) The drought conditions that formed the basis of the Governor’s emergency
proclamations continue to exist;
(5) The present year is critically dry and has been immediately preceded by two or
more consecutive below normal, dry, or critically dry years; and
(6) The drought conditions will likely continue for the foreseeable future and
additional action by both the State Water Resources Control Board and local water
suppliers will likely be necessary to prevent waste and unreasonable use of water and to
further promote conservation.
Authority: Section 1058.5, Water Code.
References: Cal. Const., Art., X § 2; Sections 102, 104, 105, and 275, Water Code;
Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463.
Sec. 864. End-User Requirements in Promotion of Water Conservation.
(a) To prevent the waste and unreasonable use of water and to promote water
conservation, each of the following actions is prohibited, except where necessary to
address an immediate health and safety need or to comply with a term or condition in a
permit issued by a state or federal agency:
(1) The application of potable water to outdoor landscapes in a manner that causes
runoff such that water flows onto adjacent property, non-irrigated areas, private and
public walkways, roadways, parking lots, or structures;
(2) The use of a hose that dispenses potable water to wash a motor vehicle, except
where the hose is fitted with a shut-off nozzle or device attached to it that causes it to
cease dispensing water immediately when not in use;
(3) The application of potable water to driveways and sidewalks; and
(4) The use of potable water in a fountain or other decorative water feature,
except where the water is part of a recirculating system;
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(5) The application of potable water to outdoor landscapes during and within
48 hours after measurable rainfall;
(6) The serving of drinking water other than upon request in eating or drinking
establishments, including but not limited to restaurants, hotels, cafes, cafeterias, bars, or
other public places where food or drink are served and/or purchased;
(7) The irrigation with potable water of ornamental turf on public street medians;
and
(8) The irrigation with potable water of landscapes outside of newly constructed
homes and buildings in a manner inconsistent with regulations or other requirements
established by the California Building Standards Commission and the Department of
Housing and Community Development.
(b) To promote water conservation, operators of hotels and motels shall provide
guests with the option of choosing not to have towels and linens laundered daily. The
hotel or motel shall prominently display notice of this option in each guestroom using
clear and easily understood language.
(c) Immediately upon this subdivision taking effect, all commercial, industrial and
institutional properties that use a water supply, any portion of which is from a source
other than a water supplier subject to section 865, shall either:
(1) Limit outdoor irrigation of ornamental landscapes or turf with potable water to
no more than two days per week; or
(2) Reduce potable water usage supplied by sources other than a water supplier by
25 percent for the months of June 2015 through February 2016 as compared to the
amount used from those sources for the same months in 2013.
(d) The taking of any action prohibited in subdivision (a) or the failure to take any
action required in subdivisions (b) or (c), is an infraction, punishable by a fine of up to
five hundred dollars ($500) for each day in which the violation occurs. The fine for the
infraction is in addition to, and does not supersede or limit, any other remedies, civil or
criminal.
Authority: Section 1058.5, Water Code.
References: Cal. Const., Art., X § 2; Sections 102, 104, 105, 275, 350, and 10617,
Water Code; Light v. State Water Resources Control Board (2014) 226 Cal.App.4th
1463.
Sec. 865. Mandatory Actions by Water Suppliers.
(a) As used in this section:
(1) “Distributor of a public water supply” has the same meaning as under
section 350 of the Water Code, except it does not refer to such
distributors when they are functioning solely in a wholesale capacity,
but does apply to distributors when they are functioning in a retail
capacity.
(2) “R-GPCD” means residential gallons per capita per day.
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(3) “Total potable water production” means all potable water that enters
into a water supplier’s distribution system, excluding water placed into
storage and not withdrawn for use during the reporting period, or water
exported outsider the supplier’s service area.
(4) “Urban water supplier” means a supplier that meets the definition set
forth in Water Code section 10617, except it does not refer to suppliers
when they are functioning solely in a wholesale capacity, but does
apply to suppliers when they are functioning in a retail capacity.
(b) In furtherance of the promotion of water conservation each urban water
supplier shall:
(1) Provide prompt notice to a customer whenever the supplier obtains
information that indicates that a leak may exist within the end-user’s exclusive control.
(2) Prepare and submit to the State Water Resources Control Board by the 15th of
each month a monitoring report on forms provided by the Board. The monitoring report
shall include the amount of potable water the urban water supplier produced, including
water provided by a wholesaler, in the preceding calendar month and shall compare that
amount to the amount produced in the same calendar month in 2013. The monitoring
report shall specify the population served by the urban water supplier, the percentage of
water produced that is used for the residential sector, descriptive statistics on water
conservation compliance and enforcement efforts, and the number of days that outdoor
irrigation is allowed, and monthly commercial, industrial and institutional sector use.
The monitoring report shall also estimate the gallons of water per person per day used by
the residential customers it serves.
(c)(1) To prevent the waste and unreasonable use of water and to meet the
requirements of the Governor’s April 1, 2015 Executive Order, each urban water supplier
shall reduce its total potable water production by the percentage identified as its
conservation standard in this subdivision. Each urban water supplier’s conservation
standard considers its service area’s relative per capita water usage.
(2) Each urban water supplier whose source of supply does not include
groundwater or water imported from outside the hydrologic region in which the water
supplier is located, and that has a minimum of four years’ reserved supply available may,
submit to the Executive Director for approval a request that, in lieu of the reduction that
would otherwise be required under paragraphs (3) through (10), the urban water supplier
shall reduce its total potable water production by 4 percent for each month as compared
to the amount used in the same month in 2013. Any such request shall be accompanied
by information showing that the supplier’s sources of supply do not include groundwater
or water imported from outside the hydrologic region and that the supplier has a
minimum of four years’ reserved supply available.
(3) Each urban water supplier whose average July-September 2014 R-GPCD was
less than 65 shall reduce its total potable water production by 8 percent for each month as
compared to the amount used in the same month in 2013.
(4) Each urban water supplier whose average July-September 2014 R-GPCD was
65 or more but less than 80 shall reduce its total potable water production by 12 percent
for each month as compared to the amount used in the same month in 2013.
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(5) Each urban water supplier whose average July-September 2014 R-GPCD was
80 or more but less than 95 shall reduce its total potable water production by 16 percent
for each month as compared to the amount used in the same month in 2013.
(6) Each urban water supplier whose average July-September 2014 R-GPCD was
95 or more but less than 110 shall reduce its total potable water production by 20 percent
for each month as compared to the amount used in the same month in 2013.
(7) Each urban water supplier whose average July-September 2014 R-GPCD was
110 or more but less than 130 shall reduce its total potable water production by
24 percent for each month as compared to the amount used in the same month in 2013.
(8) Each urban water supplier whose average July-September 2014 R-GPCD was
130 or more but less than 170 shall reduce its total potable water production by
28 percent for each month as compared to the amount used in the same month in 2013.
(9) Each urban water supplier whose average July-September 2014 R-GPCD was
170 or more but less than 215 shall reduce its total potable water production by
32 percent for each month as compared to the amount used in the same month in 2013.
(10) Each urban water supplier whose average July-September 2014 R-GPCD
was 215 or more shall reduce its total potable water production by 36 percent for each
month as compared to the amount used in the same month in 2013.
(d)(1) Beginning June 1, 2015, each urban water supplier shall comply with the
conservation standard specified in subdivision (c).
(2) Compliance with the requirements of this subdivision shall be measured
monthly and assessed on a cumulative basis.
(e)(1) Each urban water supplier that provides potable water for commercial
agricultural use meeting the definition of Government Code section 51201, subdivision
(b), may subtract the amount of water provided for commercial agricultural use from its
potable water production total, provided that any urban water supplier that subtracts any
water provided for commercial agricultural use from its total potable water production
shall:
(A) Impose reductions determined locally appropriate by the urban water supplier,
after considering the applicable urban water supplier conservation standard specified in
subdivision (c), for commercial agricultural users meeting the definition of Government
Code section 51201, subdivision (b) served by the supplier;
(B) Report its total potable water production pursuant to subdivision (b)(2) of this
section, the total amount of water supplied for commercial agricultural use, and shall
identify the reduction imposed on its commercial agricultural users and each recipient of
potable water for commercial agricultural use;
(C) Certify that the agricultural uses it serves meet the definition of Government
Code section 51201, subdivision (b); and
(D) Comply with the Agricultural Water Management Plan requirement of
paragraph 12 of the April 1, 2015 Executive Order for all commercial agricultural water
served by the supplier that is subtracted from its total potable water production.
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(2) Submitting any information pursuant to subdivision (e)(1)(B) or (C) of this
section that is found to be materially false by the board is a violation of this regulation,
punishable by civil liability of up to five hundred dollars ($500) for each day in which the
violation occurs. Every day that the error goes uncorrected constitutes a separate
violation. Civil liability for the violation is in addition to, and does not supersede or
limit, any other remedies, civil or criminal.
(f)(1) To prevent waste and unreasonable use of water and to promote water
conservation, each distributor of a public water supply that is not an urban water supplier
shall take one or more of the following actions:
(A) Limit outdoor irrigation of ornamental landscapes or turf with potable water
by the persons it serves to no more than two days per week; or
(B) Reduce by 25 percent reduction its total potable water production relative to
the amount produced in 2013.
(2) Each distributor of a public water supply that is not an urban water supplier
shall submit a report by December 15, 2015, on a form provided by the Board, that either
confirms compliance with subdivision (f)(1)(A) or identifies total potable water
production, by month, from June through November, 2015, and total potable water
production, by month, for June through November 2013.
Authority: Section 1058.5, Water Code.
References: Cal. Const., Art., X § 2; Sections 102, 104, 105, 275, 350, 1846, 10617
and 10632, Water Code; Light v. State Water Resources Control Board (2014) 226
Cal.App.4th 1463.
Sec. 866. Additional Conservation Tools.
(a)(1) To prevent the waste and unreasonable use of water and to promote
conservation, when a water supplier does not meet its conservation standard required by
section 865 the Executive Director, or the Executive Director’s designee, may issue
conservation orders requiring additional actions by the supplier to come into compliance
with its conservation standard.
(2) A decision or order issued under this article by the board or an officer or
employee of the board is subject to reconsideration under article 2 (commencing with
section 1122) of chapter 4 of part 1 of division 2 of the California Water Code.
(b) The Executive Director, or his designee, may issue an informational order
requiring water suppliers, or commercial, industrial or institutional properties that receive
any portion of their supply from a source other than a water supplier subject to section
865, to submit additional information relating to water production, water use or water
conservation. The failure to provide the information requested within 30 days or any
additional time extension granted is a violation subject to civil liability of up to
$500 per day for each day the violation continues pursuant to Water Code section 1846.
Authority: Section 1058.5, Water Code.
References: Cal. Const., Art., X § 2; Sections 100, 102, 104, 105, 174, 186, 187, 275,
350, 1051, 1122, 1123, 1825, 1846, 10617 and 10632, Water Code; Light v. State Water
Resources Control Board (2014) 226 Cal.App.4th 1463.

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