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CC 06-06-2023 Item No. 14 Drought Conditions_Written CommunicationsCC 06-06-2023 Item #14 Informational Memorandum update on drought conditions Written Communications From:Kitty Moore To:Kirsten Squarcia; City Clerk Subject:Written Communications Item 14 Drought Non-Functional Turf Date:Monday, June 5, 2023 1:36:13 PM Attachments:Commercial Irrigation Ban 2022-0606-03E-approval.pdf 2023 Extention pr20230601-decorative-watering.pdf EmergencyRegTextDRAFT_2023-06ereg.pdf Dear City Clerk, I appreciate the drought update and am adding the very recent State extension of the non- functional turf ban for commercial, industrial, and institutional properties on the use of potable water for irrigation, in order for the City to be aware that this ban has been readopted and that the ban includes a $500/day maximum violation punishment. Please include this email along with the attachment for written communications for Informational Item 14: Drought Conditions. The following is an excerpt from the Emergency Regulatory Actions taken June 10, 2022 and remained in effect through June 1, 2023: The regulation bans the irrigation of non-functional turf with potablewater incommercial, industrial, and institutional. sectors and establishes thatsuch irrigation is aninfraction punishable by a fine of up to five hundred dollars for eachday in which. theviolation occurs pursuant to Water Code section 1058.5(d).OAL approves this emergency regulatory action pursuant to sections11346.1 and11349.6 of the Government Code. Pursuant to Water Code section1058.5(b}, theFinding of Emergency in this matter was exempt from Office ofAdministrative LawReview.This emergency regulatory action is effective on 6/10/2022 and,pursuant to WaterCade section 1058.5(c), will expire on 6/1 Q/2023. The Certificate ofCompliance far thisaction is due no later than 6/9/2023. The State Water Board then readopted the decorative grass watering ban on business and government properties in May, 2023, an excerpt is here: May 31, 2023 Contact: Edward Ortiz, Information Officer SACRAMENTO – The State Water Resources Control Board has readopted an emergency regulation that bans using drinking water for watering decorative grass (also referred to as non-functional turf) in commercial, industrial and institutional areas throughout the state. The State Water Board’s readoption of this regulation signals the real need for Californians to continue using water wisely, and it aligns with Gov. Gavin Newsom’s March 2023 executive order affirming that the multi-year drought continues to have significant, immediate impacts on communities with vulnerable water supplies across California. Although conditions have improved, they have not abated severe drought conditions that remain in some parts of the state, including those with groundwater basins that are depleted. The regulation bans watering non-functional turf, which generally is mowed grass that is not used for recreational or other community activities, at commercial, industrial and institutional properties. This applies to areas like grass in front of or next to large commercial buildings, and some common areas managed by homeowners’ associations. In addition to not applying to grass used for recreational or other community activities, the ban does not affect or prohibit watering residential lawns or trees. In fact, the state encourages people to keep watering trees because of their many environmental benefits. The ban also does not prohibit using recycled water for irrigating non-functional turf. I have also attached the May 15, 2023 Proposed Text of the Emergency Regulation. Thank you, Kitty Moore Kitty Moore​ Councilmember City Council Kmoore@cupertino.org (408) 777-1389 State Water Board readopts decorative grass watering ban on business and government properties Conserving and storing water remains critical for communities recovering from multi-year drought conditions, preparing against climate change May 31, 2023 Contact: Edward Ortiz, Information Officer SACRAMENTO – The State Water Resources Control Board has readopted an emergency regulation that bans using drinking water for watering decorative grass (also referred to as non-functional turf) in commercial, industrial and institutional areas throughout the state. The State Water Board’s readoption of this regulation signals the real need for Californians to continue using water wisely, and it aligns with Gov. Gavin Newsom’s March 2023 executive order affirming that the multi-year drought continues to have significant, immediate impacts on communities with vulnerable water supplies across California. Although conditions have improved, they have not abated severe drought conditions that remain in some parts of the state, including those with groundwater basins that are depleted. The regulation bans watering non-functional turf, which generally is mowed grass that is not used for recreational or other community activities, at commercial, industrial and institutional properties. This applies to areas like grass in front of or next to large commercial buildings, and some common areas managed by homeowners’ associations. In addition to not applying to grass used for recreational or other community activities, the ban does not affect or prohibit watering residential lawns or trees. In fact, the state encourages people to keep watering trees because of their many environmental benefits. The ban also does not prohibit using recycled water for irrigating non-functional turf. “We all have a shared responsibility to continue to limit non-essential outdoor water use while the state grapples with extreme weather and plans for possible dry conditions this summer and into the next wet season,” said Joaquin Esquivel, chair of the State Water Board. “This readopted regulation will help us continue to protect California’s water resources in hotter, drier conditions.” The regulation was initially adopted by the board in May 2022 and went into effect in June 2022. Once approved by the Office of Administrative Law and filed with the Secretary of State, the extension of the ban will go into effect for one additional year. It would have expired in June 2023, if not readopted. With this readoption, there are two State Water Board water conservation emergency regulations in place. The other is an emergency regulation prohibiting wasteful water uses. That regulation, readopted in December 2022 and still in effect, prohibits outdoor watering causing substantial water to run onto sidewalks and other areas, and the use of potable water for washing hard surfaces like driveways or sidewalks. Violations of these prohibitions or of the newly extended non-functional turf watering ban are considered infractions. Agencies already authorized to enforce the existing water regulations, like water suppliers and local governments, still are empowered to address violations of the non- functional turf watering regulation. In some areas, similar prohibitions are required by local plans or ordinances. For more information on this and other statewide water restrictions, go to the State Water Board’s Water Conservation Emergency Regulation page. # The State Water Board’s mission is to preserve, enhance and restore the quality of California’s water resources and drinking water for the protection of the environment, public health, and all beneficial uses, and to ensure proper resource allocation and efficient use for the benefit of present and future generations. State of California Office of Administrative Law In re: State Water Resources Control Board NOTICE OF APPROVAL OF EMERGENCY REGULATORY ACTION Regulatory Action: Title 23, California Code of Regulations Adopt sections: 996 Amend sections: Repeal sections: Government Code Sections 11346.1 and 11349.6 OAL Matter Number: 2022-0606-03 OAS Makter Type: Emergency (E) This emergency action by the State Water Resources Control Board adopts a new regulation which .requires urban water suppliers to submit preliminary supply and demand assessments to the Department of Water Resources and to implement Level 2 demand reduction actions (actions intended to result in a 10 to 20 percent savings). The regulation bans the irrigation of non-functional turf with potable water in commercial, industrial, and institutional. sectors and establishes that such irrigation is an infraction punishable by a fine of up to five hundred dollars for each day in which. the violation occurs pursuant to Water Code section 1058.5(d). OAL approves this emergency regulatory action pursuant to sections 11346.1 and 11349.6 of the Government Gode. Pursuant to Water Code section 1058.5(b}, the Finding of Emergency in this matter was exempt from Office of Administrative Law Review. This emergency regulatory action is effective on 6/10/2022 and, pursuant to Water Cade section 1058.5(c), will expire on 6/1 Q/2023. The Certificate of Compliance far this action is due no later than 6/9/2023. Date: June 10, 2022 ~ ~~„~, ~~-, Dale Mentink` Assistant Chief Counsel For: Kenneth J. Pogue Director Original: Eileen Sobeck, Executive Director Copy: Garrett Lenahan STATE OF CALIFORNIA—OPfICEOFADMINiSTRA E~nw For use by Secretary of State onlyNOTICE PUBLIC/~TIOIV ~n, sr~.aootRev.ionor9l ~ ~f1L FILE N07ICE FILE NUMBER REGULATORY ACTION NUMBEgR~ g~ ~g EMER~GEiNyC~Y NUMBER N1Jt~/I$~f~'a" ~~ e~ ~X ~ ~d ~ S7 ll ~ '~ ~ r ,~ ~ ~~~li~ ~~i" °• _ «<-~For use by Once of Administrative law (OAL) only ~,'.;?~ bffi~e c u ~ ~.e~ ,'~;1 ~,° ~;,;. _ ~(fhv S~.~ of ~~~nmi~ ~~~~ s~,~, m~j rti r ~a-s~ NOTICE REGULATIONS AGENCY WITH RULEMAKING AUTHORITY AGENCY FILE NUMBER (if any)State Water Resources Control Board A. PUBLICATION OF NOTICE (Complete for publication in Notice Register) 1. SUBJECT OF NOTICE TITLES) FIRST SECTION AFFECTED 2. REQUESTED PUBLICATION DATE 3. NOTICE TYPE - 4. AGENCY CONTACT PERSON TELEPHONE NUMBER FAX NUMBER (Optional)q Notice re Proposed ("—► titherRe ulato `Action L_~ OAL USE ACTION ON PRppgSFD NOTICE NOTICE. R_FGISTER NUMBER '. Pl!BUCATlpN bATE~~~Y HPP~oveaas APp~cvyas t" DisapProvh~+~S~bnnroea ~ MorliheU ~ Witharawn B. SUBMISSION OF REGULATIONS (Complete when submitting regulations) 1a. SUBJECT OF REGULATION{S) ib. ALL PREVIOUS RELATED OAL REGULATORY ACTION NUMBERS)Water Demand Reduction Emergency Regulation 2. SPECIFY CALIFORNIA CODE Of REGULATIONS TITLES) AND SECTIONS) (including title 26, if toxics related) SECTIONS} AFFECTED A°oPT {List all section number{s) 996 `individually. Attach aMeNo _~cidi~a~al:_sF~eeh_6f~reeded.} __~_._ _--- ____ _._ ----_ ____ --TITLE(S) REPEAL 23 3. TYPE OF FILING Regular Rulemaking {Gov. ❑Certificate of Compliance: The agency officer named ~ Emergency Readopt ~ Changes WithoutCode §11346) below certifies that this agency complied with the (Gov. Code, §11346.1 (h}) Regulatory Effect {CaLResubmittal of disapproved provisions of Gov. Code §§11346.2-11347.3 either Code Regs., title 1, §100}or withdrawn nonemergency before the emergency regulation was adopted or filing (Gov. Code §§11349.3, within the time period required by statute. ❑File &Print ~ Print Oniy11349.4) Emergency (Gov. Code, ~ Resubmittal of disapproved or withdrawn o ocher {sPe~~~> Wafer Code Section 1058.5§11346.1(b)) emergency filing (Gov. Code, §11346.1) 4. ALL BEGINNING AND ENDING DATES OF AVAILABILITY OF MODIFIED REGULATIONS AND/OR MATERIAL ADDED TO THE RULEMAKING FILE (Cal. Code Regs. line 1, §44 and Gov. Code §11347.1) 5. EFFECTIVE DATE OF CHANGES (Gov. Code, §§ 11343.4, 11346.1(d}; Cai. Code Regs., title 1, §100 )Effective January 1, April 1, July 1, or x Effective on filing with §100 Changes Without Effective otherOctober 1 (Gov. Code §11343.4(a)) ❑Secretary of State ❑Regulatory Effect ❑(Specify) 6. CHECK IF THESE REGULATIONS REQUIRE NOTICE T0, OR REVIEW, CONSULTATION, APPROVAL OR CONCURRENCE BY, ANOTHER AGENCY OR ENTITY Department of Fnance (Form STD. 399) {SAM §6660) ~ Fair Political Practices Commission ~ State Fire Marshal Other {Specify) 7. CONTACT PERSON TELEPHONE NUMBER FAX NUMBER {Optional) E-MAIL ADdRESS (Optional)Garrett Lenahan 916 341-5179 8. (certify that the attached copy of the regulations) is a true and correct copy For use by Office of Administrative Law (OAL) onlyof the regulation{s) identified on this form, that the information specified on this formis true and correct, and #hat I am the head of the agency taking this action, or a designee of the head of the agency, and am authori2ed to make this certification. SIGNATURE OF AGENCY HEAD OR DESIGNEE PATE Eric Oppenheimer °'g7a1ySgnedbyEncOp°~ibe1nef 6/612022J.~te:20]IA6➢614:24:44 -0]'00' TYPED NAME AND TITLE OF SIGNATORY Eric Oppenheimer, Chief Deputy Director, State Water Resources Control Board ADOPTED EMERGENCY REGULATION TEXT Title 23. Waters Division 3. State Water Resources Control Board and Regional Water Quality Control Boards Chapter 3.5. Urban Water Use Efficiency and Conservation Article. 2. Prevention of Drought Wasteful Water Uses 996. Urban Drought Response Actions ~a) As used in this section: (1) "Commercial, industrial and institutionaP' refers to commercial water users, industrial water users, and .institutional water users as respectively defined in Water Code, section 10608:12. subdivisions (e), {i ,and (j), and includes homeowners' associations, common interest developments, community service organizations, and other similar entities but does not include the residences of these entities' members or separate interests. ~2) "Common interest development' has the same meaning as in section 4100 of the Civil Code. ~3) "Community service organization or similar entity" has the same meaning as in :section 4110 of the Civi( Code. ~4) "Homeowners' association" means an "association" as defined in section 4080 of the Civil Code. (5} "Non-functional turf" means turf that is solely ornamental and not rec~ularly used for human recreational purposes or for civic or community events. Non-functional turf does not include sports fields and turF that is regularly used for human recreational purposes or for civic or community events. (6} "Plant factor" has the same meaninct as in section 491. ~7) "Separate interest" has the same meaning as in section 4185 of the Civil Code. (8) "Turf" has the same meaning as in section 491. (9} "Urban water supplier" has the same meaning as Water Code section 10617. (10) "Water shortage contingenc rLplan" means the plan required by Water Cade section 10632. (b) Each urban water supplier shall submit to the Department of Water Resources a preliminary annual water su~ply and demand assessment consistent with section 10632.1 of the Water Cade no later than June 1 2022 or the effective date of this section whichever comes later, and submit a final annual water supply and demand assessment to the Department of Water Resources no later than the deadline set by section 10632.1 of the Water Code. (i) The supplier's annual water supply and demand assessment submitted to the Department of Water`Resources demonstrates an ability to maintain reliable suppix until September 30, 2023. Department of Water Resources. (iii) The supplier's average number of gallons of water used per person per day by to twenty (20) gercent (Level ~, implement at a minimum the following actions: (1) Initiate a public information and outreach campaign for water conservation and promptly and effectively reach the supplier's customers, using efforts such as ema papermail, bill inserts, customer app notifications, news articles, websites, comma events radio and television billboards and social media. potable water befinreen the hours of 10:00 a.m. and 6:00 p.m. Level 2~ (2 Notwithstanding subdivision (c)(1), urban water suppliers shall not be required to implement new residential connection moratoria pursuant to this section. residential customers for the year 2020 is below 55 gallons, as reported to the Board in the :Electronic Annual Report. has authority to enforce, as infractions, the prohibitions in section 995 and takes enforcement against violations. (e) t1) To prevent the unreasonable use of water and to promote water conservation, the use: of potable water is prohibited for the irrigation of non-functional turf at commercial, industrial and institutional sites. (2~ Notwithstanding subdivision (e)(1~, the use of water is not prohibited by this section to the extent necessary to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need. (3) Notwithstanding subdivision (e)(1 ~, an urban water supplier may approve a request for continued irrigation of non-functional turFwhere the user certifies that the turf is a low water use plant with a plant factor of 0.3 or less, and demonstrates the actual use is less than 40% of reference evapotranspiration. criminal (g) A decision or order issued under this section ~ the Board, or an officer or employee the Board, is subject to reconsideration under article 2 (commencing with section 1122) c chapter 4 of part 1 of division 2 of the Water Code. Authority: Section 105$.5, Water Code. References: Article X Section 2 California Constitution' Sections 4080 4100 4110 and 4185 Civil Gode~ Section 8627.7 Government Code' Sections 102 104 105 275 350 3.77, 491, 1058.5, 1122. 10608.12, 10617, 10632, and 10632.1, Water Code; Lic~hf v. Sf~ Water Resources Control Board (2Q14) 226 Cal.App.4th 1463; Stanford Vina Ranch lrrigation Co. v. State of California (20201 50 Cal.App.5th 976 DRAFT – 05/15/2023 1 PROPOSED TEXT OF EMERGENCY REGULATION Title 23. Waters Division 3. State Water Resources Control Board and Regional Water Quality Control Boards Chapter 3.5. Urban Water Use Efficiency and Conservation Article 3. Prevention of Drought Wasteful Water Uses § 996. Urban Drought Response Actions (a) As used in this section: (1) “Commercial, industrial and institutional” refers to commercial water users, industrial water users, and institutional water users as respectively defined in Water Code, section 10608.12, subdivisions (e), (i), and (j), and includes homeowners’ associations, common interest developments, community service organizations, and other similar entities but does not include the residences of these entities’ members or separate interests. (2) “Common interest development” has the same meaning as in section 4100 of the Civil Code. (3) “Community service organization or similar entity” has the same meaning as in section 4110 of the Civil Code. (4) “Homeowners’ association” means an “association” as defined in section 4080 of the Civil Code. (5) “Non-functional turf” means turf that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. Non-functional turf does not include sports fields and turf that is regularly used for human recreational purposes or for civic or community events. (6) “Plant factor” has the same meaning as in section 491. (7) “Separate interest” has the same meaning as in section 4185 of the Civil Code. (8) “Turf” has the same meaning as in section 491. (b) (1) To prevent the unreasonable use of water and to promote water conservation, the use of potable water is prohibited for the irrigation of non-functional turf at commercial, industrial, and institutional sites. (2) Notwithstanding subdivision (b)(1), the use of water is not prohibited by this section to the extent necessary to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need. DRAFT – 05/15/2023 2 (3) Notwithstanding subdivision (b)(1), an urban water supplier may approve a request for continued irrigation of non-functional turf where the user certifies that the turf is a low water use plant with a plant factor of 0.3 or less, and demonstrates the actual use is less than 40% of reference evapotranspiration. (c) The taking of any action prohibited in subdivision (b) 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. (d) A decision or order issued under this section 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 Water Code. Authority: Section 1058.5, Water Code. References: Article X, Section 2, California Constitution; Sections 4080, 4100, 4110, and 4185, Civil Code; Section 8627.7, Government Code; Sections 102, 104, 105, 275, 350, 377, 491, 1122, and 10608.12, Water Code; Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463; Stanford Vina Ranch Irrigation Co. v. State of California (2020) 50 Cal.App.5th 976.