2012 State Water Efficiency and Conservation Policy Information by Christina Dian Parmionova

The Water EďŹ&#x192;ciency and Conservation State Scorecard: An Assessment of Laws and Policies Public Comments

September 1, 2012

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September 2012

PUBLIC COMMENTS – TABLE OF CONTENTS Arizona Specific Comments • Ruth Greenhouse, Arizona Department of Water Resources ................................................................ 2 • AWE Response ........................................................................................................................................ 4 Georgia Specific Comments • Alice Miller Keyes, Georgia Environmental Protection Division ............................................................. 8 • AWE Response ...................................................................................................................................... 11

Massachusetts Specific Comments • Erin Graham OBO Kathleen Baskin, MA Executive Office of Energy & Environmental Affairs ............ 13 • AWE Response ...................................................................................................................................... 15

Nevada Specific Comments • Kent Sovocool, Southern Nevada Water Authority .............................................................................. 17 • AWE Response ...................................................................................................................................... 19

• Malcolm Wilson, Nevada Division of Water Resources ....................................................................... 21 • AWE Response ...................................................................................................................................... 23

New Mexico Specific Comments • John Longworth, New Mexico Water Use and Conservation Bureau .................................................. 26 • AWE Response ...................................................................................................................................... 32

Washington Specific Comments • Michael Dexel, Washington State Department of Health .................................................................... 38 • AWE Response ...................................................................................................................................... 41

Wisconsin Specific Comments • Eric Ebersberger, WI Dept. of Natural Resources and Jeffrey Ripp, Public Service Commission ......... 45 • AWE Response ...................................................................................................................................... 47

• Ezra Meyer, Clean Wisconsin ............................................................................................................... 50 • AWE Response ...................................................................................................................................... 53

Comments on Water Loss • George Kunkel, Philadelphia Water Department ................................................................................. 56 • AWE Response ...................................................................................................................................... 58

Comments on Implementation • Jenny Hoffner, American Rivers ........................................................................................................... 59 • AWE Response ...................................................................................................................................... 60

Comments on Clothes Washer Standards • J.B. Hoyt, Whirlpool Corporation ......................................................................................................... 61 • AWE Response ...................................................................................................................................... 62

Comments on Scoring Methodology • Michael Jensen, Amigos Bravos ........................................................................................................... 63 • AWE Response ...................................................................................................................................... 66

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September 2012

Bill Christiansen From: Sent: To: Subject:

Ruth Greenhouse <rgreenhouse@azwater.gov> Monday, June 11, 2012 1:24 PM Bill Christiansen ARIZONA STATE SCORECARD COMMENT

Question 8: ARIZONA Does the state have any regulations or policies for water utlities regarding water loss in the utility distribution system? ·

The Arizona Department of Water Resources (ADWR) requests recognition for the state’s regulations regarding water loss in utility distribution systems, as they have broad applicability and are very stringent for the majority of municipal water use in the state.

State statute requires that all water systems must include a conservation plan with measures to determine and control lost and unaccounted for water. A.R.S. § 45-342 (J)(1). These requirements are particularly robust in the management plans for the state’s active management areas.* In Arizona, state requirements are implemented and codified through rules published in the Arizona Administrative Code or in the management plans as required by the Groundwater Code. A.R.S 45- 566 (A) (2-5); 45-567. In the active management areas, large municipal providers are required to maintain their system not to exceed 10 percent lost and unaccounted for water; small municipal providers must maintain lost and unaccounted for water at or below 15 percent, and large untreated water providers are required to either line all canals used to deliver untreated water or limit lost and unaccounted for water at or below 10 percent. The Groundwater Code authorizes a civil penalty of up to $10,000/day for violations. § A.R.S. 45-635. For the current rules regarding water loss in active management areas, see: Third Management Plan 5.7.6.2 for each area. *82% of the state’s population resides in the state’s active management areas, and most of the areas outside the active management areas are public lands such as national and state forests and parks, state trust land, and Native American reservations. Arizona is unusual in that only 17.6% is private land. Question 9. ARIZONA Does the state require conservation activities as part of its water permitting process or water right permit?

The Arizona Department of Water Resources (ADWR) requests recognition for the Arizona Corporation Commission water conservation requirements implemented statewide, as well as Arizona’s 30 years of robust conservation requirements for water users in active management areas*, which include permitting, as these requirements have impacted more than 82% of the state’s population. *

The 1980 Groundwater Code requires that applications for permits to use groundwater in active management areas must be consistent with the conservation requirements of the management plans (A.R.S. § 45-514, 515, and 516). In Arizona, the management plans are the rules through which the statutory requirements are codified and water users regulated. Annual reporting is required, and the state Groundwater Code authorizes a civil penalty of up to $10,000/day for violations (A.R.S. § 45-635). Management plan conservation requirements related to water right permitsfor municipal, industrial and agricultural water users include the following: ·

Large municipal providers are assigned an annual total Gallons Per Capita Per Day requirement or are regulated under alternative programs that require the implementation of specific conservation measures selected from the following categories: Public Awareness and Public Relations, Conservation Education and Training, Outreach Services, Physical System Evaluation and Improvement, Ordinances/Conditions of Service, Rebates/Incentives, and Research/Innovation. In addition, system losses are not to exceed 10% annually, all 1

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connections must be metered, low water use plants are required in public rights of way, and developers of residential and commercial subdivisions can not sell lots unless their proposed water use is consistent with the conservation requirements of the management plan. A.R.S. §45- 576 (J-2), A.R.S § 45-566 (A)(2-5); A.R.S. § 45567. ·

Requirements for certain industries that have grandfathered water rights (e.g., golf courses, dairies, cattle feedlots, metal mines, sand and gravel operations , power plants) include annual conservation allotments, design limitations and the implementation of best management practices. Most new industrial users cannot obtain a groundwater permit if they are within a municipal provider’s service area, of if renewable water is available. A.R.S. § 45-2601 (11) General industrial use permits, A.R.S. § 45-515, are frequently denied due to inconsistency with conservation goals and subsequently revised so that the proposed uses of water meet requirements for efficiency and conservation.

No new agricultural acres are allowed, A.R.S. § 45-452, and farms with irrigation grandfatherered rights are either assigned a maximum annual groundwater allotment or are enrolled in a best management practices program. Irrigation distribution system losses are not to exceed 10%.

*82% of the state’s population resides in the state’s active management areas, and most of the areas outside the active management areas are public lands such as national and state forests and parks, state trust land, and Native American reservations. Arizona is unusual in that only 17.6% is private land.

Ruth Greenhouse (602/771-8608) Water Planning Division Arizona Department of Water Resources

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September 2012

August 31, 2012

Ruth Greenhouse Water Planning Division Arizona Department of Water Resources 3550 North Central Avenue Phoenix, AZ 85012 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Ruth: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below are our responses to your comments for questions 8 and 9. The Arizona Department of Water Resources comments are in blue text and the AWE response is in black text. 8. Does the state have any regulations or policies for water utilities regarding water loss in the utility distribution system? Arizona Department of Water Resources Comment: 

State statute requires that all water systems must include a conservation plan with measures to determine and control lost and unaccounted for water. A.R.S. § 45-342 (J)(1). These requirements are particularly robust in the management plans for the state’s active management areas.* In Arizona, state requirements are implemented and codified through rules published in the Arizona Administrative Code or in the management plans as required by the Groundwater Code. A.R.S 45- 566 (A) (2-5); 45-567. In the active management areas, large municipal providers are required to maintain their system not to exceed 10 percent lost and unaccounted for water; small municipal providers must maintain lost and unaccounted for water at or below 15 percent, and large untreated water providers are required to either line all canals used to deliver untreated water or limit lost and unaccounted for water at or below 10 percent. The Groundwater Code authorizes a civil penalty of up to $10,000/day for violations. § A.R.S. 45-635. For the current rules regarding water loss in active management areas, see: Third Management Plan (http://www.azwater.gov/azdwr/WaterManagement/AMAs/ManagementPlans.htm) 5.7.6.2 for each area. *82% of the state’s population resides in the state’s active management areas, and most of the areas outside the active management areas are public lands such as national and state

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forests and parks, state trust land, and Native American reservations. Arizona is unusual in that only 17.6% is private land. AWE Response: The Water Conservation and Efficiency Scorecard project awarded points based on an assessment of law. We are certainly not dismissing the requirements of the active management area plans; however, we cannot award any additional points, because the requirements are not specified in law. To do so we would need supporting legal language in the Arizona statutes that specifically mentions unaccounted water, or water loss, beyond what is written in A.R.S. § 45-342 (J)(1). This comment, while not resulting in an increase of points, provides valuable insight into Arizona’s water loss efforts. A.R.S. § 45-342: System water plan; components; exceptions “J. The water conservation plan shall be designed to increase the efficiency of the water system, reduce waste and encourage consumer water conservation efforts. The water conservation plan shall be designed to meet the specific needs of the community water system and shall include both demand and supply management measures including the following: 1. Feasible measures that may be implemented to determine and control lost and unaccounted for water.” 9. Does the state require conservation activities as part of its water permitting process or water right permit? Arizona Department of Water Resources Comment: 

The 1980 Groundwater Code requires that applications for permits to use groundwater in active management areas must be consistent with the conservation requirements of the management plans (A.R.S. § 45-514, 515, and 516). In Arizona, the management plans (http://www.azwater.gov/azdwr/WaterManagement/AMAs/ManagementPlans.htm) are the rules through which the statutory requirements are codified and water users regulated. Annual reporting is required, and the state Groundwater Code authorizes a civil penalty of up to $10,000/day for violations (A.R.S. § 45-635). Management plan conservation requirements related to water right permits for municipal, industrial and agricultural water users include the following: 

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categories: Public Awareness and Public Relations, Conservation Education and Training, Outreach Services, Physical System Evaluation and Improvement, Ordinances/Conditions of Service, Rebates/Incentives, and Research/Innovation. In addition, system losses are not to exceed 10% annually, all connections must be metered, low water use plants are required in public rights of way, and developers of residential and commercial subdivisions can not sell lots unless their proposed water use is consistent with the conservation requirements of the management plan. A.R.S. §45- 576 (J-2), A.R.S § 45-566 (A)(2-5); A.R.S. § 45-567. 

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General industrial use permits, A.R.S. § 45-515, are frequently denied due to inconsistency with conservation goals and subsequently revised so that the proposed uses of water meet requirements for efficiency and conservation.

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Several private water utilities, both inside and outside active management areas, are required by the Arizona Corporation Commission (ACC) to implement prescribed conservation measures from the categories listed above. A.R.S. § 40-322; http://www.azcc.gov/divisions/utilities/water/forms.asp. In some instances, the ACC requires the implementation of additional BMPs above and beyond the ADWR requirements. *82% of the state’s population resides in the state’s active management areas, and most of the areas outside the active management areas are public lands such as national and state forests and parks, state trust land, and Native American reservations. Arizona is unusual in that only 17.6% is private land. AWE Response: Thank you for providing this additional information. A.R.S. § 45-514, 515, and 516 are concerned with mineral extraction and metallurgical processing permits; general industrial use permits, and poor quality groundwater withdrawal permits respectively. Because the primary focus of the State Scorecard Report is municipal water use, we are unable to award any additional points. The score for this question will remain as one point based on the following: A.R.S. § 45-451: Groundwater rights and uses in active management areas “A. In an active management area, a person may:

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1. Withdraw and use groundwater only in accordance with the provisions of articles 5 through 12 of this chapter…” A.R.S. §45-492: Withdrawals by cities, towns and private water companies within service areas; contract to supply groundwater “A. Except as provided in subsection D of this section, in an active management area, a city, town or private water company shall have the right to withdraw and transport groundwater within its service area for the benefit of landowners and residents within its service area, and the landowners and residents are entitled to use the groundwater delivered, subject to: 1. Articles 8 and 8.1 of this chapter relating to transportation of groundwater. 2. Conservation requirements developed by the director pursuant to article 9 of this chapter…” While we did not change the scores for question 8 or 9, the comments made are valuable and help share Arizona’s perspective. We did add 1 point of extra credit for the Arizona Rinse Smart, pre-rinse spray valve program. The total score for Arizona increased from 22 to 23, and the grade changed from a “B” to a “B+.” Thank you again for reviewing the draft report and submitting feedback.

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

Georgia Department of Natural Resources Environmental Protection Division, Watershed Protection Branch 4220 International Parkway, Suite 101, Atlanta, Georgia 30354 Linda MacGregor, P.E., Branch Chief 404/675-6232 FAX: 404/675-6247

June 13, 2012

Ms. Mary Ann Dickinson Alliance for Water Efficiency 300 West Adams Street Suite 601 Chicago, IL 60606 Dear Mary Ann, Thank you for the opportunity to comment on the Draft report “The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies” posted for public comment in April 2012. We appreciate the Alliance for Water Efficiency and the Environmental Law Institute’s investment in a project of this nature and your effort to highlight exemplary state policies and laws. We all have an important role to play in conserving water and sustainable managing this precious resource and we appreciate all that the work you do to promote water efficiency worldwide.

Clarification on GA’s high efficiency standards and building/plumbing code Georgia’s standards for high-efficiency fixtures were codified by the Georgia General Assembly through the GA Water Stewardship Act of 2010 (SB 370 and HB 1094). These high efficiency standards were adopted into the State Minimum Standard Plumbing Code in November 2011. The GA State Code Amendments are available through the GA Department of Community Affairs (www.dca.ga.gov.) Official Code of Georgia (O.C.G.A.) § 8-2-3(b)(1) defines “Construction” as the, “…erection of a new building or the alteration of an existing building in connection with its repair or renovation or in connection with making an addition to an existing building and shall include the replacement of a malfunctioning, unserviceable or obsolete faucet, showerhead, toilet or urinal in an existing building.” O.C.G.A. § 8-2-3(g) states that, “Any person who installs any toilet, faucet, urinal, or showerhead in violation of this Code shall be guilty of a misdemeanor.” O.C.G.A. § 8-2-3(c) defines high efficiency fixtures as the following:  Toilets and flushometers ---- No more than 1.28 gallons of water per flush (avg) including Single and Dual Flush toilets and listed to the WaterSense specifications  Urinals ------------------------- No more than 0.5 gallons of water per flush. Flushing urinals must meet WaterSense specifications.  Lavatory faucets or replacement aerators ------ No more than 1.5 gallons of water per minute  Kitchen faucets  or replacement aerators ------- No more than 2.0 gallons of water per minute

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Showerheads ------------------ No more than 2.5 gallons of water per minute (not considered high efficiency)

O.C.G.A. § 8-2-3(i) states that, “After July 1, 2012, the sale of a gravity tank-type, flushomerer-valve or flushometer-tank toilet that uses more than an average of 1.28 gallons of water pre flush is prohibited in this state.”

Comments on Scorecard Narrative and Scoring Clarification for Response to Scorecard Question #4 - The narrative describing responses to Question #4 should clarify the difference between laws that affect the sale of fixtures and laws that affect the installation of fixtures. Question #4 relates to water consumption of urinals. Although the point of sale regulation in the Georgia Code relates only to toilets and flushometers, the law prohibits the installation of a urinal that flushes more than .5 gallons of water (O.C.G.A. § 8-2-3(c)(3). Understanding that Survey Question #4 refers predominantly to the sale AND installation, I recommend clarification be made in the narrative description. Consider amending the last paragraph on page 19 of the report to reflect the following : “While the more stringent standards were uniform among those states with them, the 3 states differed in the scope of application of those standards. California and Texas high efficiency standards apply to the sale and installation of toilets and urinals. Georgia standards for sale of high efficiency fixtures applies only to toilets. Other high efficiency standards (including urinals, lavatory and kitchen faucets and aerators, as well as toilets) are enacted through building codes and plumbing standard for new construction and replacement of such fixtures (see question #7 for details). “ Recommended change to Score on Question #7 – Georgia’s score should be adjusted to reflect the requirement that high efficiency plumbing fixtures be installed in any “construction” after July 1, 2012. While Georgia’ score for response to Question #4 accurately reflects that the sale of high efficiency fixtures is limited to toilets, the score for response to Question #7 fails to acknowledge that the installation of any urinal, lavatory or kitchen faucet or aerator, or toilet that does not meet the standards in the Code is illegal. O.C.G.A. § 8-2-3(g), states “Any person who installs any toilet, faucet, urinal, or showerhead in violation of this Code shall be guilty of a misdemeanor.” Texas and Georgia both were awarded one (1) point for the response to Question #7. The Texas code, however, applies to fixtures installed in government buildings only. The Georgia code on the other hand, applies to fixtures installed in any “construction” – again, construction defined as the erection of new building, addition or alteration to an existing building or the replacement of fixtures in an existing building (O.C.G.A. § 8-2-3(b)(1)). Lastly, the narrative describing Georgia’s building and plumbing codes does not accurately represent the higher than federal efficiency standards for kitchen faucets and kitchen replacement aerators at 2.0 gallon of water per minute. (O.C.G.A. § 8-2-3(c)(5).

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Again, than you for the opportunity to comment on the Scorecard. We look forward to reviewing the final Water Efficiency and Conservation State Scorecard. Contact me at any time if I can be of assistance as you finalize the report. Sincerely,

Alice Miller Keyes Georgia Environmental Protection Division Watershed Protection Branch

E-CC: Napoleon Caldwell, Georgia EPD, Watershed Protection Branch Deatre Denion & Chris Butts, GA Water Wise Council Jenny Hoffner, American Rivers April Ingle, GA River Network & GA Water Coalition Heather Moody, Gwinnett County Water Resources Kathy Nguyen, Cobb County Water System Brian Skeens, CH2M Hill Pat Stevens, Metro North GA Water Planning District

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September 10, 2012

Alice Miller Keyes Georgia Environmental Protection Division Watershed Protection Branch 4220 International Parkway Suite 101 Atlanta, Georgia 30354 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Alice: Thank you for taking the time to submit comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Below is our response to your concerns about the report text and scoring of question 7. The original Georgia Environmental Protection Division comments are in blue text and the AWE response is in black text. 4. Does the state have a water consumption regulation for urinals that is more stringent than the federal standard? Georgia EPD Comment: The narrative describing responses to Question #4 should clarify the difference between laws that affect the sale of fixtures and laws that affect the installation of fixtures. Question #4 relates to water consumption of urinals. Although the point of sale regulation in the Georgia Code relates only to toilets and flushometers, the law prohibits the installation of a urinal that flushes more than .5 gallons of water (O.C.G.A. § 8-2-3(c)(3). Understanding that Survey Question #4 refers predominantly to the sale AND installation, I recommend clarification be made in the narrative description. Consider amending the last paragraph on page 19 of the report to reflect the following: “While the more stringent standards were uniform among those states with them, the 3 states differed in the scope of application of those standards. California and Texas high efficiency standards apply to the sale and installation of toilets and urinals. Georgia standards for sale of high efficiency fixtures applies only to toilets. Other high efficiency standards (including urinals, lavatory and kitchen faucets and aerators, as well as toilets) are enacted through building codes and plumbing standard for new construction and replacement of such fixtures (see question #7 for details). “ AWE Response: Thank you for this comment. We changed the text in this section to include a reference to the highlight discussion for question 7 which covers Georgia’s building and plumbing codes.

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7. Does the state have mandatory building or plumbing codes requiring water efficient products that exceed the federal standard? Georgia EPD Comment: Georgia’s score should be adjusted to reflect the requirement that high efficiency plumbing fixtures be installed in any “construction” after July 1, 2012. While Georgia’ score for response to Question #4 accurately reflects that the sale of high efficiency fixtures is limited to toilets, the score for response to Question #7 fails to acknowledge that the installation of any urinal, lavatory or kitchen faucet or aerator, or toilet that does not meet the standards in the Code is illegal. O.C.G.A. § 8-2-3(g), states “Any person who installs any toilet, faucet, urinal, or showerhead in violation of this Code shall be guilty of a misdemeanor.” Texas and Georgia both were awarded one (1) point for the response to Question #7. The Texas code, however, applies to fixtures installed in government buildings only. The Georgia code on the other hand, applies to fixtures installed in any “construction” – again, construction defined as the erection of new building, addition or alteration to an existing building or the replacement of fixtures in an existing building (O.C.G.A. § 8-2-3(b)(1)). Lastly, the narrative describing Georgia’s building and plumbing codes does not accurately represent the higher than federal efficiency standards for kitchen faucets and kitchen replacement aerators at 2.0 gallon of water per minute. (O.C.G.A. § 8-2-3(c)(5). AWE Response: The answers for Texas and Georgia differ in that the Texas citation regarded a building code that requires water efficiency in state owned buildings. Assessing question 7 for California, Texas, and Georgia was challenging because many water efficient building code qualifiers (e.g., requirements for installation of efficient fixtures) were captured in questions 2 and 4. States received maximum credit for questions 2 and 4 if they had requirements for installation and point of sale. What was not captured in the score for questions 2 and 4 for Georgia, but related to question 7, were kitchen and lavatory faucets, and the requirement for newly constructed multiunit residential and multiunit retail and light industrial to have submetering (O.C.G.A. § 12-5-180.1). California did not receive any points for question 7 because its requirements for toilets and urinals related to installation were awarded points in questions 2 and 4. The report narrative was edited and now includes the requirement for kitchen faucets. An additional point was awarded to Georgia for question 7 and the total is now 2. This changes the score from 17.5 to 18.5 and changes the grade from a “B-” to a “B.” Thanks again for reviewing the report and providing comments.

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

Bill Christiansen From: Sent: To: Cc: Subject:

Graham, Erin (DCR) <erin.graham@state.ma.us> Thursday, June 14, 2012 9:38 AM Bill Christiansen Baskin, Kathleen (ENV) State Scorecard Comment- Massachusetts

Thank you for the opportunity to comment on the Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Question 8

State MA

Comment Please consider a score of two points instead of one point. Although Massachusetts doesn’t have requirements for all water suppliers, it does have specific targets for new permits and is demonstrating a strong initiative. · MA has a performance standard that applies to public water suppliers with permits under the Water Management Act. Unaccounted for Water (UAW) is calculated every year on the Annual Statistical Report. The performance standard is triggered during renewal or 5year reviews of existing permits and for new permits. The performance standard is 10% UAW, which is a goal set by the Water Resources Commission in the state’s Water Conservation Standards. In addition, the Water Resources Commission has requirements for UAW before a Water Needs Forecast can be completed for a Water Management Act Permit: UAW should not exceed an average of 15% of the total system water used during the most recent three-year period, and all systems that have unaccounted-for water exceeding 10% must have a program in place to reduce unaccounted-for water to 10% or less as soon as practicable, or as required in the water supplier’s Water Management Act permit. · If a transfer of water or wastewater 1 MGD or greater is needed under the Interbasin Transfer Act (ITA), UAW must be below 10% according to the ITA performance standards.

A correction should be made to the text on page 34, which reads “…Massachusetts’ regulations require permit holder to renew their permit every 5 years.” Permit holders are not required to renew their permits every 5 years; rather, regulators review compliance with permit conditions every 5 years, and this review may encompass conservation activities. 1

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Erin Graham On behalf of Kathleen M. Baskin, P.E. Director of Water Policy Executive Office of Energy and Environmental Affairs 100 Cambridge Street Boston, MA 02114

_______________________ Erin K. Graham, P.E. Water Resources Engineer Department of Conservation and Recreation Office of Water Resources 251 Causeway Street, Suite 600 Boston, MA 02114-2119 617-626-1426

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September 2012

August 31, 2012

Kathleen M. Baskin, P.E. Director of Water Policy Executive Office of Energy and Environmental Affairs 100 Cambridge Street Boston, MA 02114 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Kathleen: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below are our responses to your comments for questions 8 and 13. The original Department of Conservation and Recreation comments are in blue text and the AWE response is in black text. 8. Does the state have any regulations or policies for water utilities regarding water loss in the utility distribution system? Massachusetts Executive Office of Energy and Environmental Affairs Comment: Please consider a score of two points instead of one point. Although Massachusetts doesn’t have requirements for all water suppliers, it does have specific targets for new permits and is demonstrating a strong initiative. 

MA has a performance standard that applies to public water suppliers with permits under the Water Management Act. Unaccounted for Water (UAW) is calculated every year on the Annual Statistical Report. The performance standard is triggered during renewal or 5-year reviews of existing permits and for new permits. The performance standard is 10% UAW, which is a goal set by the Water Resources Commission in the state’s Water Conservation Standards. In addition, the Water Resources Commission has requirements for UAW before a Water Needs Forecast can be completed for a Water Management Act Permit: UAW should not exceed an average of 15% of the total system water used during the most recent three-year period, and all systems that have unaccounted-for water exceeding 10% must have a program in place to reduce unaccounted-for water to 10% or less as soon as practicable, or as required in the water supplier’s Water Management Act permit.

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If a transfer of water or wastewater 1 MGD or greater is needed under the Interbasin Transfer Act (ITA), UAW must be below 10% according to the ITA performance standards.

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Citations: Water Conservation Standards- Chapter 5, Executive Office of Energy and Environmental Affairs and Water Resources Commission, July 2006 and updated June 2012, Section 2.0 System Water Audits and Leak Detection http://www.mass.gov/eea/docs/eea/wrc/water-conservation-standards-rev-june-2012.pdf Policy for Developing Water Needs Forecasts for Public Water Suppliers and Communities and Methodology for Implementation December 13, 2007 Revised May 1, 2009, pages 3 & 4 http://www.mass.gov/dcr/watersupply/waterneedsforcast_policy_and_method_May_01_ 09.pdf Interbasin Transfer Act Performance Standards Guidance, page 5 http://www.mass.gov/dcr/watersupply/intbasin/docs/finalps.pdf AWE Response: While we recognize the UAW targets in the Water Conservation Standards document we cannot assign additional points, because those performance standards are not legally required. Rather, they are goals adopted by the Water Resources Commission. We can, however, award an additional point for question 8 based on 360 CMR 12.00: Leak Detection Regulations. This brings the point total for question 8 to 2. 13. How often does the state require the water utilities to submit a potable water conservation plan (not part of a drought emergency plan)? Massachusetts Executive Office of Energy and Environmental Affairs Comment: A correction should be made to the text on page 34, which reads “…Massachusetts’ regulations require permit holder to renew their permit every 5 years.” Permit holders are not required to renew their permits every 5 years; rather, regulators review compliance with permit conditions every 5 years, and this review may encompass conservation activities. AWE Response: The text of the report was changed accordingly. Thank you again for reviewing the draft report and submitting comments. The overall score for Massachusetts was adjusted from 12 to 13 points. The grade remains a “C+.”

Sincerely,

William Christiansen Program Planner cc: Erin K. Graham, P.E., Water Resources Engineer, Department of Conservation and Recreation, Office of Water Resources

Alliance for Water Efficiency

September 2012

Bill Christiansen From: Sent: To: Subject: Attachments:

Kent Sovocool <kent.sovocool@snwa.com> Tuesday, June 05, 2012 10:18 AM Bill Christiansen State Scorecard Comment - Nevada Nevada Water Efficiency Scorecard.pdf

Hello, Thanks for the opportunity to review the report titled The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. The attachment has comments from the Southern Nevada Water Authority (SNWA). If you have any questions about these, please feel free to contact me. Sincerely, Kent Kent Sovocool Senior Conservation Research Analyst Southern Nevada Water Authority Phone: 702-862-3738 Fax: 702-862-3744 E-mail: kent.sovocool@snwa.com

PHYSICAL ADDRESS 100 City Parkway, Suite 700 Las Vegas, NV 89106 CORRESPONDENCE ADDRESS Southern Nevada Water Authority P.O. Box 99956 Las Vegas, NV 89193-9956 The Southern Nevada Water Authority and the Las Vegas Valley Water District operate on a four-day work week. Business Hours are Mondays - Thursdays 7 AM to 6 PM. Closed on Fridays - Sundays.

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September 2012

Perceived scoring errors for the State of Nevada in the April 2012 Draft of The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies.

Q. 9 Conservation activities as part of water permitting process? Nevada received 0 points, but in regards to interbasin transfers of groundwater NRS533.370(3)(b) states that the State Engineer shall consider “that a plan for conservation of water is advisable for the basin into which the water is to be imported, whether the applicant has demonstrated that such a plan has been adopted and is being effectively carried out.” 2-3 points should be awarded in accordance with the Scoring Guidelines in Table 1. This power is being actively used by the Nevada State Engineer in regards to contemporary permitting. Q 15 Implementation of Conservation Measures? Nevada received 1 point in this category. Such an award is consistent with “language facilitating implementation, but it lacks an enforceable hook” according to the Scoring Guidelines in Table 1. However, NRS533.370(3) makes it clear that where the applicant does not meet the aforementioned criteria, “transfer of groundwater must be rejected pursuant to this section.”. 2-3 points should be awarded in accordance with the Scoring Guidelines in Table 1. This power is being actively used by the Nevada State Engineer in regards to contemporary permitting. Q. 17 Technical Assistance for urban water conservation programs? Nevada received 0 points, but NRS 540.151 states in part that “The supplier of water may request assistance from the Section to develop its plan. The word Section in this context refers to the Water Planning Section of the Division of Water Resources. 2 points should be awarded for “Direct technical assistance offered by the state.” in accordance with the Scoring Guidelines in Table 1.

Alliance for Water Efficiency

September 2012

August 31, 2012 Kent Sovocool Senior Conservation Research Analyst Southern Nevada Water Authority P.O. Box 99956 Las Vegas, NV 89193‐9956 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Kent: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below are our responses to your comments for questions 9, 15, and 17. The original Southern Nevada Water Authority comments are in blue text and the AWE response is in black text. 9. Does the state require conservation activities as part of its water permitting process or water right permit? Southern Nevada Water Authority Comment: Nevada received 0 points, but in regards to interbasin transfers of groundwater NRS533.370(3)(b) states that the State Engineer shall consider “that a plan for conservation of water is advisable for the basin into which the water is to be imported, whether the applicant has demonstrated that such a plan has been adopted and is being effectively carried out.” 2‐3 points should be awarded in accordance with the Scoring Guidelines in Table 1. This power is being actively used by the Nevada State Engineer in regards to contemporary permitting. AWE Response: The language in NRS 533.370 (included below) deserves some recognition. Although not a requirement, and only pertaining to interbasin transfers, it demonstrates unique discretionary authority. 0.5 points were added to Nevada for question 9. NRS 533.370 Approval or rejection of application by State Engineer: Conditions; exceptions; considerations; procedure. “3. In addition to the criteria set forth in subsections 1 and 2, in determining whether an application for an interbasin transfer of groundwater must be rejected pursuant to this section, the State Engineer shall consider: (a) Whether the applicant has justified the need to import the water from another basin; (b) If the State Engineer determines that a plan for conservation of water is advisable for the basin into which the water is to be imported, whether the applicant has demonstrated that such a plan has been adopted and is being effectively carried out; …” 15. Does the state require water utilities to implement conservation measures, beyond just the preparation and submittal of plans?

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Southern Nevada Water Authority Comment: Nevada received 1 point in this category. Such an award is consistent with “language facilitating implementation, but it lacks an enforceable hook” according to the Scoring Guidelines in Table 1. However, NRS533.370(3) makes it clear that where the applicant does not meet the aforementioned criteria, “transfer of groundwater must be rejected pursuant to this section.”. 2‐3 points should be awarded in accordance with the Scoring Guidelines in Table 1. This power is being actively used by the Nevada State Engineer in regards to contemporary permitting. AWE Response: The original intention of this question was to build additional information based on “yes” answers from question 11. However, there were instances of overlap with question 9. A half‐point was awarded for question 9 based on the comment provided above. However, there is no evidence of broadly applicable state requirements for the implementation of conservation measures. No additional points were awarded for this question. 17. Does the state offer technical assistance for urban water conservation programs? Southern Nevada Water Authority Comment: Nevada received 0 points, but NRS 540.151 states in part that “The supplier of water may request assistance from the Section to develop its plan. The word Section in this context refers to the Water Planning Section of the Division of Water Resources. 2 points should be awarded for “Direct technical assistance offered by the state.” in accordance with the Scoring Guidelines in Table 1. AWE Response: The previous citation used for this question was from the Nevada State Water Plan which stated: “The state has not funded the water conservation plan program. There are no specific staff to help water systems develop water conservation plans, to review the plans once they are submitted to the Division or to follow up with the water systems to ensure the plans are being implemented (pg. 1A‐4).” http://water.nv.gov/programs/planning/stateplan/documents/pt3‐1a.pdf Based on the new citations provided by the Southern Nevada Water Authority and the Nevada Division of Water Resources, 2 points were awarded. Thank you again for reviewing the draft report and submitting comments. From these comments, and comments provided by the Nevada Division of Water Resources, 3.5 points were added to the overall score for Nevada. This raised the state’s grade from 14 to 17.5 or from a “C+” to a “B‐.” Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

Bill Christiansen From: Sent: To: Subject:

Malcolm Wilson <mjwilson@water.nv.gov> Thursday, June 14, 2012 2:14 PM Bill Christiansen State Scorecard Comment - Nevada

Please find the following comments regarding the questions for the State of Nevada. Question 9 When an application is for an interbasin transfer, the State Engineer must consider whether the applicant has a plan for conservation of water under NRS § 533.370(3)(b). Given this, the score should be at least a 1. The State Engineer has broad powers in issuing permits, and could make a plan for conservation of water a condition of a permit. This is not explicit in statute; however, the State Engineer is authorized to impose conditions on approval of applications under his authority to deny an application if it impairs existing water rights set forth in NRS § 533.370 [United States v. Alpine Land & Reservoir Co., 919 F. Supp. 1470 (D. Nev. 1996)]. Considering this in addition to NRS § 533.370(3)(b) above, the score would be a 2. Question 10 Based on the criteria (p. 13 of the draft report), a score of 1 indicates that no update of the plan is required. Since it is a required component under NRS § 540.141 for the conservation plan, and the conservation plan must be updated every 5 years, then an update is required. It is agreed that there is not a detailed framework for plan development meriting a score of 2. With these factors in mind, the score would be 1.5, not 1. Question 15 If required as a permit term (see Question 9 above), then conservation measures could be enforced under NRS §§ 533.480 to 533.482 and 534.190 to 534.195. Likewise, in cases of withdrawal in excess of permitted use, the above cited statutes provide the State Engineer with enforcement abilities, including the ordering of sub-metering. Waste of water is a hazard to water quality and availability, and this is handled under NRS §§ 533.460, 534.0165 and 534.070. Reducing waste and unauthorized use of water can be considered a conservation measure. Question 17 Under NRS § 540.151(1), a supplier of water may request assistance from the Section to develop its plan to provide incentives for certain water conservation measures. Under NRS § 540.051, the Water Planning Section shall assist federal, state and local governments and the general public in obtaining information regarding water planning, water rights and water availability; provide updates to local governments on water issues relevant to this State; promote water conservation by consulting with suppliers of water concerning community water conservation plans and the content and scope of water plans. With respect to on-line resources, water conservation plans are provided to the public on the Division of Water Resources website, per NRS § 540.141(5). Additionally, other technical information, guidance, and publications are available (water.nv.gov /programs/planning/). The Water Conservation Planning Guidelines current edition is 1991, but undergoing update and revision by the Water Planning Section and should be available by 2012. 1

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Extra Credit In 2011 the Legislature amended NRS § 534.110 to include the ability of the State Engineer to designate basins as a critical management area when groundwater withdrawals are consistently in excess of the perennial yield of the basin. This may result in the implementation of a water management plan pursuant to NRS § 534.037 or direct restrictions in withdrawals; if affecting urban areas, this will induce water conservation efforts to compensate for diminished supply. Since these are within Chapter 534 of the NRS, they are enforceable under NRS §§ 534.190 to 534.195. NRS § 116.330 provides that the executive board and governing documents of a homeowners association cannot prohibit a unit’s owner from installing or maintaining drought tolerant landscaping, with certain exceptions.

Thank you for your consideration of these comments. Best Regards, Malcolm J. Wilson, P.E. Water Planning Engineer Division of Water Resources Office 775-684-2800 Direct 775-684-2806 Fax 775-684-2811

Alliance for Water Efficiency

September 2012

August 31, 2012 Malcolm J. Wilson, P.E. Water Planning Engineer Nevada Division of Water Resources 901 S. Stewart St., Suite 2002 Carson City, NV 89701‐5250 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Malcolm: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below are our responses to your comments regarding questions 9, 10, 15, 17, and extra credit. The original Nevada Division of Water Resources comments are in blue text and the AWE response is in black text. 9. Does the state require conservation activities as part of its water permitting process or water right permit? Nevada Division of Water Resources Comment: When an application is for an interbasin transfer, the State Engineer must consider whether the applicant has a plan for conservation of water under NRS § 533.370(3)(b). Given this, the score should be at least a 1. The State Engineer has broad powers in issuing permits, and could make a plan for conservation of water a condition of a permit. This is not explicit in statute; however, the State Engineer is authorized to impose conditions on approval of applications under his authority to deny an application if it impairs existing water rights set forth in NRS § 533.370 [United States v. Alpine Land & Reservoir Co., 919 F. Supp. 1470 (D. Nev. 1996)]. Considering this in addition to NRS § 533.370(3)(b) above, the score would be a 2. AWE Response: The language in NRS 533.370 (included below) deserves some recognition. Although not a requirement, and only pertaining to interbasin transfers, it demonstrates unique discretionary authority. 0.5 points were added to Nevada for question 9. NRS 533.370 Approval or rejection of application by State Engineer: Conditions; exceptions; considerations; procedure. “3. In addition to the criteria set forth in subsections 1 and 2, in determining whether an application for an interbasin transfer of groundwater must be rejected pursuant to this section, the State Engineer shall consider: (a) Whether the applicant has justified the need to import the water from another basin;

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(b) If the State Engineer determines that a plan for conservation of water is advisable for the basin into which the water is to be imported, whether the applicant has demonstrated that such a plan has been adopted and is being effectively carried out; …” 10. Does the state require preparation of drought emergency plans by water utilities or cities on any prescribed schedule? Nevada Division of Water Resources Comment: Based on the criteria (p. 13 of the draft report), a score of 1 indicates that no update of the plan is required. Since it is a required component under NRS § 540.141 for the conservation plan, and the conservation plan must be updated every 5 years, then an update is required. It is agreed that there is not a detailed framework for plan development meriting a score of 2. With these factors in mind, the score would be 1.5, not 1. AWE Response: The score for question 10 was changed from 1.0 to 1.5. 15. Does the state require water utilities to implement conservation measures, beyond just the preparation and submittal of plans? Nevada Division of Water Resources Comment: If required as a permit term (see Question 9 above), then conservation measures could be enforced under NRS §§ 533.480 to 533.482 and 534.190 to 534.195. Likewise, in cases of withdrawal in excess of permitted use, the above cited statutes provide the State Engineer with enforcement abilities, including the ordering of sub‐metering. Waste of water is a hazard to water quality and availability, and this is handled under NRS §§ 533.460, 534.0165 and 534.070. Reducing waste and unauthorized use of water can be considered a conservation measure. AWE Response: The original intention of this question was to build additional information based on “yes” answers from question 11. However, there were instances of overlap with question 9. A half‐point was awarded for question 9 based on the comment provided above. However, there is no evidence of broadly applicable state requirements for the implementation of conservation measures. No additional points were awarded for this question. 17. Does the state offer technical assistance for urban water conservation programs? Nevada Division of Water Resources Comment: Under NRS § 540.151(1), a supplier of water may request assistance from the Section to develop its plan to provide incentives for certain water conservation measures. Under NRS § 540.051, the Water Planning Section shall assist federal, state and local governments and the general public in obtaining information regarding water planning, water rights and water availability; provide updates to local governments on water issues relevant to this State; promote water conservation by consulting with suppliers of water concerning community water conservation plans and the content and scope of water plans. With respect to on‐line resources, water conservation plans are provided to the public on the Division of Water Resources website, per NRS § 540.141(5). Additionally, other

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technical information, guidance, and publications are available (water.nv.gov /programs/planning/). The Water Conservation Planning Guidelines current edition is 1991, but undergoing update and revision by the Water Planning Section and should be available by 2012. AWE Response: The previous citation used for this question was from the Nevada State Water Plan which stated: “The state has not funded the water conservation plan program. There are no specific staff to help water systems develop water conservation plans, to review the plans once they are submitted to the Division or to follow up with the water systems to ensure the plans are being implemented (pg. 1A‐4).” http://water.nv.gov/programs/planning/stateplan/documents/pt3‐1a.pdf Based on the new citations 2 points were awarded. Extra Credit Nevada Division of Water Resources Comment: In 2011 the Legislature amended NRS § 534.110 to include the ability of the State Engineer to designate basins as a critical management area when groundwater withdrawals are consistently in excess of the perennial yield of the basin. This may result in the implementation of a water management plan pursuant to NRS § 534.037 or direct restrictions in withdrawals; if affecting urban areas, this will induce water conservation efforts to compensate for diminished supply. Since these are within Chapter 534 of the NRS, they are enforceable under NRS §§ 534.190 to 534.195. NRS § 116.330 provides that the executive board and governing documents of a homeowners association cannot prohibit a unit’s owner from installing or maintaining drought tolerant landscaping, with certain exceptions. AWE Response: 0.5 extra credit points were awarded for NRS 116.330. Thank you again for reviewing the draft report and submitting comments. In total, 3.5 points were added to the overall score for Nevada, raising its grade from 14 to 17.5, or from a “C+” to a “B‐.” Sincerely,

William Christiansen Program Planner

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September 3, 2012

John W. Longworth, P.E. Chief, Water Use and Conservation Bureau NM Office of the State Engineer PO Box 25102 Santa Fe, NM 87504 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear John: Thank you for taking the time to submit comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are very appreciative of the time you took to review and comment on our findings. Below are our responses to your comments regarding questions 8, 9, 10, 11, 12, 14, and 15. The original NM Office of the State Engineer comments are in blue text and the AWE response is in black text. 8. Does the state have any regulations or policies for water utilities regarding water loss in the utility distribution system? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered this question “no”. The NMOSE would like this changed to “yes”. The NMOSE recognizes that real water losses are not beneficial use. Therefore, the SE considers accounting for water loss part of the SE policy on best technology available and often includes it as an additional permit condition. Water loss accounting, using the American Water Works Association water audit software is also required in all water conservation plans and water development plans submitted to the NMOSE. AWE Response: Thank you for pointing out the New Mexico Office of the State Engineer’s position on water loss. The Water Efficiency and Conservation State Scorecard project relied on legal language to assess state level efforts (with exceptions for non-legal questions). Without a reference to legal language that includes water loss, we cannot award points to New Mexico for this question. 9. Does the state require conservation activities as part of its water permitting process or water right permit? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered this question “yes,” it was changed on the scorecard to “no,” but we were given 2 points due to “unique authority”. This is confusing. The AWE review that was provided to NMOSE on May 18, 2012 concluded that the SE has the power to require conservation activities but that they are not part of the permitting process as a general rule. This is incorrect. The SE enacted a policy in 1997 to condition all

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permits with “The permittee shall utilize the highest and best technology available to ensure conservation of water to the maximum extent practical.” The scoring criteria for this question awards 3 points if there are “robust application or approval requirements.” Given that applications have been denied based on contrary to conservation, the denial challenged in court and the SE’s denial upheld, the NMOSE believes this is a “robust” application requirement. In addition, water conservation activities are required in water infrastructure funding through 72-14-3.2 NMSA 1978, and for land subdivision development through 47-6-9(4) NMSA 1978. AWE Response: Question 9 asks if the state requires conservation activities as part of its water permitting process or water right permit. The statutory language cited does not specifically require conservation activities as part of the water permitting process. However, 2 points were originally awarded because of the authority given to the State Engineer to refuse applications if they are, “contrary to the conservation of water.” But the statute uses the word “may” rather than “shall” or “must,” and does not list any specific conservation requirements. "[The state engineer] may also refuse to consider or approve any application or notice of intention to make application or to order the publication of notice of any application if, in his opinion, approval would be contrary to the conservation of water within the state or detrimental to the public welfare of the state." § 72-5-7 NMSA 1978 Given the language in § 72-5-7 NMSA 1978, the score of 2 points is in line with the scoring rubric that states, “2 = Water rights expressly can be conditioned (or rejected) based on water conservation efforts.” New Mexico fell into a grey area for this question. While we understand that a “No” answer that was awarded 2 points may be confusing, we could not assign a “Yes” answer because conservation is not explicitly required in statute. The requirements for infrastructure funding included in the comment above will be addressed in the response to New Mexico’s comments for question 11. One point of extra credit has been added for § 47-6-9(4) NMSA 1978. 10. Does the state require preparation of drought emergency plans by water utilities or cities on any prescribed schedule? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered this question “no”. While there is not an explicit website that provides an easily copied policy, drought is a part of the reality of water management in New Mexico. The SE requires specific drought planning in water right permitting condition.

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AWE Response: Thank you for this information. Without statutory language indicating drought plans are required, points cannot be awarded for this question. Drought plans may be included with a comprehensive water conservation plan, but neither are required. § 72-14-3.2(B) NMSA 1978: "A covered entity may develop, adopt and submit to the state engineer by December 31, 2005 a comprehensive water conservation plan, including a drought management plan." 11. Does the state have a mandatory planning requirement for potable water conservation/efficiency separate from drought emergency plans? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered this question “yes,” it was changed to “no.” 72-14-3.2 NMSA 1978 states that the NM Finance Authority/Water Trust Board shall not accept an application for funding for any water project unless the covered entity includes a copy of their water conservation plan. A “covered” entity is a public water supplier that uses over 500 acre feet of water per year. The process by which entities are reviewed for funding requires having their water conservation plans evaluated and graded by the SE. These grades are included in the scoring which is used to determine which projects get funded. As described in the introduction of this letter, the SE must incorporate water conservation into every water right permit. As the NMSC has ruled, complying with this is not an optional process for the SE. A notable process where water conservation is incorporated into the water planning process, apart from the normal water right permitting activities is Section 19.26.2.19 of the Rules and Regulations Governing The Appropriation and Use of The Surface Waters of New Mexico. This section details the necessary minimum information related to water conservation activities that must be included in water development planning under 72-1-9 NMSA1978. This process is one of the key steps in evaluating future demands. Therefore, there are three areas where there are mandatory planning requirements for potable water conservation/efficiency separate from drought emergency plans. In the May 18, 2012 review, AWE asserts that these are not mandates for all covered entities. However, the permitting process is for every water user in the state. It has been added to every permit since 1996. Even existing permits that come in for changes to purpose of use, place of use, point of diversion, ownership or extensions of time for beneficial use. When they do come in for changes, the water conservation condition is added. In addition, the water conservation component of the state grant funding process was added because eventually every water supplier requests state funds. This process is getting more competitive every year. It requires the applicants to file complete applications, with strong water conservation plans. AWE Response: Additional credit can be added for the requirement under § 72-14-3.2 NMSA 1978 that states, “the NM Finance Authority/Water Trust Board shall not accept an application for funding for any water project unless the covered entity includes a copy of

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their water conservation plan.” Because funding is sought by most water suppliers question 11 can be awarded 2 points, which is in accordance with the scoring rubric, “Plan requirement is broadly applicable.” 12. Does the state have the authority to approve or reject the conservation plans? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered this question “yes,” it was changed to “no.” The May 18, 2012 AWE review states that none of the citations presented by the NMOSE relate the authority of the state to approve or reject plans. The SE has the authority to condition permits such that the permit holder must submit conservation plans approval by the SE. Additionally, water right permit applications can (have) be denied or canceled if such plans are not acceptable. This is a distinct and substantive element of the permit application review process. As described in the introduction of this letter, the SE must incorporate water conservation into every water right permit. As the NMSC has ruled, (Lomos Altos) this is not an optional process for the SE. AWE Response: Without statutory citations that express an authority of the state to approve or reject conservation plans, no points can be awarded for question 12. § 72-143.2 NMSA 1978 does not explicitly authorize the state to approve or reject plans; the plans need only be submitted to the state engineer. Furthermore, § 72-14-3.2(C) NMSA 1978 clearly states that: “The manner in which the covered entity develops, adopts and implements a comprehensive water conservation plan shall be determined by the covered entity.” 14. If the state has a mandatory planning requirement for potable water conservation separate from drought emergency plans, is there a framework or prescribed methodology? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered “yes” to this and we were given “yes” with 0.5 points. The AWE Scorecard states that a 0.5 means “no, but the law requires the agency to draft unenforceable guidelines; OR there is a framework for what plans may include.” Once again, this is confusing. The NMOSE requests 1.0 point, which means “yes, but the framework is not robust”. The NMOSE has published, A Water Conservation Guide to Public Utilities, 2001. A new guidebook is under development through a U.S. Bureau of Reclamation grant. Publication in anticipated for Fall 2012. Additionally, 72-14-3.2 provides the following: D. In developing a water conservation plan pursuant to this section: (1) municipalities and counties shall consider ordinances and codes to encourage conservation measures; covered entities without ordinance or code enforcement ability shall consider incentives to encourage voluntary compliance with a set of conservation guidelines. Covered entities shall identify and implement best

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practices in their operations to improve conservation of the resources; and (2) the covered entity shall consider, and incorporate into its plan if appropriate, at least the following: (a) water-efficient fixtures and appliances, including toilets, urinals, showerheads and faucets; (b) low-water-use landscaping and efficient irrigation; (c) water-efficient commercial and industrial water-use processes; (d) water reuse systems for both potable and nonpotable water; (e) distribution system leak repair; (f) dissemination of information regarding water-use efficiency measures, including public education programs and demonstrations of water-saving techniques; (g) water rate structures designed to encourage water-use efficiency and reuse in a fiscally responsible manner; and (h) incentives to implement water-use efficiency techniques, including rebates to customers or others, to encourage the installation of water-use efficiency and reuse measures. AWE Response: Due to the scoring change made for question 11, the score for question 14 has been changed from 0.5 to 1. 15. Does the state require water utilities to implement conservation measures, beyond just the preparation and submittal of plans? New Mexico Water Use and Conservation Bureau Comment: The NMOSE answered this question “yes,” it was changed to “no.” The May 18, 2012 AWE review states that this question is not asking about permit conditions but whether a plan must be implemented. The NMOSE permit conditions are the mechanism for enforcement and implementation. If conditions are not followed, the permittee is subject to penalty, including cancelation of permit. Mandated target gallons per capita per day (GPCD) amounts within a specific timeframe cannot be accomplished without implementation. Albuquerque Bernalillo County Water Utility Authority has a permit condition that includes two GPCD targets. They could not divert surface water until they reached a total system GPCD of 175 and they must reach 155 GPD within 20 years of that first diversion. The City of Las Cruces that has a target date in 20 years and a condition that their conservation must be acceptable prior to diversion of any water under their permit. The implication is that the plan has to be written and implemented in order to achieve results. AWE Response: § 72-14-3.2 NMSA 1978 states, “the NM Finance Authority/Water Trust Board shall not accept an application for funding for any water project unless the covered entity includes a copy of their water conservation plan.” § 72-14-3.2 NMSA 1978 also includes conservation measures that “shall be considered” in a conservation plan. However, there is no mention of implementation being required. We are unable to award any points for this question.

Alliance for Water Efficiency

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Thank you again for reviewing the draft report and submitting comments. It is important to share the perspective of a state when it disagrees with an outside assessment. The project team made every effort to accurately represent the legal requirements that can be found in statute, but we understand this may not capture all of the water conservation and efficiency efforts that exist in the state. In total, 3.5 points were added to the overall score for New Mexico, raising its grade from 10.5 to 14, or from a “C” to a “C+.”

Sincerely,

William Christiansen Program Planner

cc: Dr. Richard Rose, Director, WRAP, NMOSE Cheri Vogel, NMOSE Mary Ann Dickinson, President and CEO, Alliance for Water Efficiency

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From: Dexel, Michael E (DOH) Sent: Friday, May 11, 2012 5:13 PM To: Bill Christiansen Cc: Dexel, Michael E (DOH) Subject: State Scorecard Comment‐ Washington State

Hello AWE, My name is Mike Dexel, I am the Program Manager for Washington state’s Water Use Efficiency regulatory program. Thank you for the opportunity to provide comments on AWE’s draft State Scorecard Report. This is an important document to establish national leaders in water efficiency and I applaud your efforts to identify those states. Washington believes that we are one of those national leaders! I have looked over the state scorecard questionnaire and have some additional information to provide on five of the posed questions. Please consider the following information to support our overall score. Question #9: Conservation activities as part of water permitting process? Answer: The state of Washington has specific statutes that prevent waste when issuing new water rights. Please see RCW 90.03.005 ; RCW 90.44.110 ; RCW 90.44.120 ; and perhaps most importantly (and directly related to uses for municipal supply) RCW 90.03.386. All of these statues are designed to ensure that water users of the state are not wasting water and, in some cases, include water conservation as part of the approval process to alter water rights and expand service areas. In fact, in RCW 90.03.386 , the statue clearly indicates that municipalities may only expand their place of use on their water right permit (i.e. service area), if and only if “…the supplier is in compliance with the terms of the water system plan or small water system management program, including those regarding water conservation…”. The water conservation statutory and rule requirements are listed in RCW 70.119A.180 and Part 2, 5 & 8 of WAC 246‐290, respectively. Question # 10: Drought emergency plans required? Answer: The state of Washington has specific statutes that require drought planning in WAC 246‐290‐ 100(4)(f)(iii) ; WAC 246‐290‐420 and 43.20.050(2)(a)(iv). It should be noted, Washington state records indicate that water systems planning under WAC 246‐290‐100 serve approximately 5,350,000 people, which is 85% of the state’s total population! Reference: Office of Financial Management population figures for 2011. This indicates that the vast majority of the population in Washington is regulated by the Department of Health’s planning program under WAC 246‐290‐100 which require six year updates to include a water shortage response (drought) plan. Question # 16: State funding for Urban water conservation programs?

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Answer: Outside of the DWSRF program, the state of Washington’s Department of Ecology has funded water conservation activities. A recent project in Spokane County was funded from the state Capital Budget under a still existing Watershed Plan Implementation and Flow Achievement proviso, over the last 4 or 5 biennia. That budget is funded by the state selling bonds. These funds have previously been made under the authorization of RCW 90.82.040 Watershed Planning Act. The Spokane County project itself was designed to help seven small towns conduct a leak detection survey and help pay for the costs to fix those leaks. In addition, the project dollars were used to fund the replacement of old and broken meters. See the Spokane County Conservation District’s web site for a summary of the project. Or see the article in our quarterly newsletter Water Tap. Question #18: Does the state require volumetric billing? Answer: We require sufficient rate structures to demonstrate financial viability. Under WAC 246‐290‐ 100(4)(j) the state of Washington requires a “Financial program, including demonstration of financial viability…”. More specifically we require that a rate evaluation consider “The feasibility of adopting and implementing a rate structure that encourages water demand efficiency”. Reference: WAC 246‐290‐ 100(4)(j)(iv)(B) As noted above in the answer to Question #10, the vast majority (85%) of the population in Washington is regulated by the Department of Health’s planning program under WAC 246‐290‐100, which indicates that these water systems are required to consider adopting and implementing a rate structure that encourages water demand efficiency. Question #19: What percentage publicly supplied water connections are metered? Answer: Under WAC 246‐290‐496: Metering requirements. We require that all municipal water suppliers in the state (over 2,200 water systems) are 100% metered by January 22, 2017. As of last December, 2011, our annual data records indicate that 56% of these systems are 100% metered. We acquired this information from our state mandated annual water use efficiency performance reports WAC 246‐290‐840: Water use efficiency performance reports. This is not an estimate but a true value that must be reported annually. This can be proven with our raw data set upon request, but for now, you can see that we collect the information by viewing this WUE Reporting Worksheet. In the Worksheet you will see that we ask for the “percentage of metered connections”. This is a required field, and must be completed in order to successfully submit the entire WUE Annual Performance Report. Your draft report says: “States could create valuable information by requiring uniform metering and consistent reporting of the number of metered connections. Currently there are no examples to share.” As you can see from the examples above, Washington indeed has information to share and can prove that we require uniform metering and consistent reporting of metered water systems. Our data will also show that we have achieved a submittal rate of over 94% for those that are required to submit an annual WUE performance report. It appears to me that Washington may be the only state that requires such annual reporting of metered connections and at a minimum should be highlighted within the report. As stated in the draft

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report, “Because of this lack of adequate documentation, the project team decided to discard this question and not report any of the responses. No states were scored on this item.” I would strongly encourage AWE to reconsider and award points to this category, even if Washington is the only state with reliable data. Finally, our state mandate to require customer metering is a cornerstone to achieving water efficiency in this state. Without it, municipalities would have little information to establish demand‐side water use efficiency goals as we require in WAC 246‐290‐830: Water use efficiency goal setting. In addition, collection of monthly metered data will help our regulated water systems understand what is efficient versus inefficient water use. It will also start to identify water use patterns for the community and give municipalities a starting point for establishing meaningful WUE goals based on collected metered data from their customers. Again, thank you for the opportunity to provide feedback on this important report. I look forward to the final version and available for may clarification questions you may have regarding the answers to these questions. Best Regards, Mike Dexel Water Resources Policy Lead Washington State Department of Health Office of Drinking Water, Policy and Constituent Services Section 243 Israel Road SE Olympia, WA 98504‐7822 Phone 360‐236‐3154 / FAX 360‐236‐2252 michael.dexel@doh.wa.gov http://www.doh.wa.gov/ehp/dw/programs/wue.htm Public Health ‐ Always Working for a Safer and Healthier Washington

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September 2012

August 31, 2012

Mike Dexel Water Resources Policy Lead Washington State Department of Health Office of Drinking Water, Policy and Constituent Services Section 243 Israel Road SE Olympia, WA 98504-7822 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Mike: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below are our responses to your comments regarding questions 9, 10, 16, 18, and 19. The original Washington State Department of Health comments are in blue text and the AWE response is in black text. 9. Does the state require conservation activities as part of its water permitting process or water right permit? Washington State Department of Health Comment: The state of Washington has specific statutes that prevent waste when issuing new water rights. Please see RCW 90.03.005; RCW 90.44.110 ; RCW 90.44.120 ; and perhaps most importantly (and directly related to uses for municipal supply) RCW 90.03.386. All of these statues are designed to ensure that water users of the state are not wasting water and, in some cases, include water conservation as part of the approval process to alter water rights and expand service areas. In fact, in RCW 90.03.386 , the statue clearly indicates that municipalities may only expand their place of use on their water right permit (i.e. service area), if and only if “…the supplier is in compliance with the terms of the water system plan or small water system management program, including those regarding water conservation…”. The water conservation statutory and rule requirements are listed in RCW 70.119A.180 and Part 2, 5 & 8 of WAC 246-290, respectively. AWE Response: Thank you for sharing these additional resources. The citations listed are very informative, but do not describe any specific water conservation and efficiency requirements as part of a water permit application. No change was made to the answer or score for question 9. The robust requirements of WAC 246-290 were credited in questions 11 - 15. 10. Does the state require preparation of drought emergency plans by water utilities or cities on any prescribed schedule?

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September 2012

Washington State Department of Health Comment: The state of Washington has specific statutes that require drought planning in WAC 246-290-100(4)(f)(iii) ; WAC 246-290-420 and 43.20.050(2)(a)(iv). It should be noted, Washington state records indicate that water systems planning under WAC 246-290-100 serve approximately 5,350,000 people, which is 85% of the state’s total population! Reference: Office of Financial Management population figures for 2011. This indicates that the vast majority of the population in Washington is regulated by the Department of Health’s planning program under WAC 246-290-100 which require six year updates to include a water shortage response (drought) plan. AWE Response: WAC 246-290-100 indicates that Water System Plans that are required every six years must include, “A water shortage response plan as a component of the reliability and emergency response requirements under WAC 246-290-420.” The answer was changed from “no” to “yes” and 1.5 points were awarded. 16. Does the state offer financial assistance to utilities, cities, or counties for urban water conservation programs such as a revolving loan fund? Grants? Bonds? Appropriations? Washington State Department of Health Comment: Outside of the DWSRF program, the state of Washington’s Department of Ecology has funded water conservation activities. A recent project in Spokane County was funded from the state Capital Budget under a still existing Watershed Plan Implementation and Flow Achievement proviso, over the last 4 or 5 biennia. That budget is funded by the state selling bonds. These funds have previously been made under the authorization of RCW 90.82.040 Watershed Planning Act. The Spokane County project itself was designed to help seven small towns conduct a leak detection survey and help pay for the costs to fix those leaks. In addition, the project dollars were used to fund the replacement of old and broken meters. See the Spokane County Conservation District’s web site for a summary of the project. Or see the article in our quarterly newsletter Water Tap. AWE Response: Thank you for supplying this additional information. The Department of Ecology website lists grants and funding available for water quality, non-point pollution projects, flood control, and the shoreline master program. Water conservation and efficiency are not specifically listed. The Spokane Conservation District is not at the state level and therefore cannot be credited. No change was made to the answer or score for this question. 18. Does the state require volumetric billing? Washington State Department of Health Comment: We require sufficient rate structures to demonstrate financial viability. Under WAC 246-290-100(4)(j) the state of Washington requires a “Financial program, including demonstration of financial viability…”. More specifically we require that a rate evaluation consider “The feasibility of adopting and implementing a rate structure that encourages water demand efficiency”. Reference: WAC 246-290-100(4)(j)(iv)(B)

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As noted above in the answer to Question #10, the vast majority (85%) of the population in Washington is regulated by the Department of Health’s planning program under WAC 246290-100, which indicates that these water systems are required to consider adopting and implementing a rate structure that encourages water demand efficiency. AWE Response: Thank you for these additional legal citations. WAC 246-290-100(4)(iv)(B) indicates that Water System Plans must contain an evaluation that must consider the affordability of water rates and the feasibility of adopting rates that would promote water conservation. WAC 246-290-100(4)(iv)(B) “(4) In order to demonstrate system capacity, the water system plan shall address the following elements, as a minimum, for a period of at least twenty years into the future: (iv) An evaluation that has considered: (A) The affordability of water rates; and (B) The feasibility of adopting and implementing a rate structure that encourages water demand efficiency.” The citations indicate that these things must only be considered as part of a plan. Because it does not specifically require volumetric billing, no change was made to the answer or score for this question. 19. What percentage or number of publicly supplied water connections (residential and nonresidential) are metered in your state? Washington State Department of Health Comment: Under WAC 246-290-496: Metering requirements. We require that all municipal water suppliers in the state (over 2,200 water systems) are 100% metered by January 22, 2017. As of last December, 2011, our annual data records indicate that 56% of these systems are 100% metered. We acquired this information from our state mandated annual water use efficiency performance reports WAC 246-290-840: Water use efficiency performance reports. This is not an estimate but a true value that must be reported annually. This can be proven with our raw data set upon request, but for now, you can see that we collect the information by viewing this WUE Reporting Worksheet. In the Worksheet you will see that we ask for the “percentage of metered connections”. This is a required field, and must be completed in order to successfully submit the entire WUE Annual Performance Report. Your draft report says: “States could create valuable information by requiring uniform metering and consistent reporting of the number of metered connections. Currently there are no examples to share.” As you can see from the examples above, Washington indeed has information to share and can prove that we require uniform metering and consistent reporting of metered water systems. Our data will also show that we have achieved a submittal rate of over 94% for those that are required to submit an annual WUE performance report.

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It appears to me that Washington may be the only state that requires such annual reporting of metered connections and at a minimum should be highlighted within the report. As stated in the draft report, “Because of this lack of adequate documentation, the project team decided to discard this question and not report any of the responses. No states were scored on this item.” I would strongly encourage AWE to reconsider and award points to this category, even if Washington is the only state with reliable data. Finally, our state mandate to require customer metering is a cornerstone to achieving water efficiency in this state. Without it, municipalities would have little information to establish demand-side water use efficiency goals as we require in WAC 246-290-830: Water use efficiency goal setting. In addition, collection of monthly metered data will help our regulated water systems understand what is efficient versus inefficient water use. It will also start to identify water use patterns for the community and give municipalities a starting point for establishing meaningful WUE goals based on collected metered data from their customers. AWE Response: We applaud Washington for asking its water providers to report the percent of metered connections. Washington is not the only state to require metering, and this question sought to specifically identify the percentage of metered connections among states. Other states may require such reporting as well, however, no states provided a percentage of metered connections value with a citable resource. Because of this, no scoring methodology was created for this question. It is possible that a 56 percent metered connection rate would not have been awarded points. Additionally, the link provided to access the WUE Reporting Worksheet currently generates a “page not found” error. Without a citation that can be referenced, and the other considerations mentioned, we cannot award points. Requiring metering and reporting is certainly a critical step in promoting the efficient use of water. This question will likely be redesigned in any future research efforts. No change was made to the answer or score for this question. Thank you again for reviewing the draft report and submitting comments. Your comments provide valuable information and help share an additional perspective. Overall, 1.5 points were added to the score for Washington State. The grade remains a “B.”

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

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Alliance for Water Efficiency

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September 4, 2012

Eric Ebersberger Chief Water Use Section Department of Natural Resources PO Box 7921 Madison, WI 53707-7921 Jeffrey Ripp Assistant Administrator for Water Public Service Commission of Wisconsin P.O. Box 7854 Madison, Wisconsin 53707-7854 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Eric and Jeffrey: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below are our responses to your comments regarding questions 11, 12, 16, and 20. The original DNR and PSC comments are in blue text and the AWE response is in black text. 11. Does the state have a mandatory planning requirement for potable water conservation/efficiency separate from drought emergency plans? Wisconsin DNR and PSC Comment: The report includes excerpts of Wisconsin state statutes. The excerpts selected should have included specific requirements related to the water supply service area planning (ss. 281.348, Wisconsin Statutes) and Great Lakes Basin specific mandatory requirements (Wis. Admin. Code, ch. NR 852). Wisconsin Administrative Code chapter NR 852 should have been referenced in this section. AWE Response: Wisconsin was highlighted in the report because it has two distinct planning processes for water providers, depending on whether or not withdrawals are from the Great Lakes Basin. This provided a unique example. The extra credit point that was previously awarded pertaining to this question has been removed. 13. How often does the state require the water utilities to submit a potable water conservation plan (not part of a drought emergency plan)? Wisconsin DNR and PSC Comment: The report indicated that Wisconsin utilities need to update a water conservation plan every 20 years. This is true for utilities that are required to have an approved water supply service area plan, but this does not come into effect for existing utilities until 2025. New or increased withdrawals in the Great Lakes Basin are

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required to have water conservation plans as of Dec. 8, 2011 and report on the implementation of the plan annually. AWE Response: Credit was given to Wisconsin for the water supply plans under Wis. Stat. § 281.348 because water conservation is a required component. These plans are to be updated every 20 years. The plans required by Wis. Admin. Code NR § 852 are to be updated every 25 years according to the term of a general permit specified in Wis. Stat. § 281.346. The score for this question will remain unchanged. 16. Does the state offer financial assistance to utilities, cities, or counties for urban water conservation programs such as a revolving loan fund? Grants? Bonds? Appropriations? Wisconsin DNR and PSC Comment: The report indicates that Wisconsin answered “Yes” to this question. Wisconsin has left the door open to funding urban water conservation programs at the utility level with the Safe Drinking Water Revolving Loan Fund, but due to the number of projects submitted for funding on an annual basis and the current level of funding to the program, no conservation programs have been funded in this manner. The Public Service Commission of Wisconsin allows regulated water utilities, which include municipally owned utilities in our state, to recover the costs of water conservation and efficiency efforts through rates. As a general benchmark, utilities are authorized to spend up to 1.5 percent of operating revenues on conservation and efficiency programs. AWE Response: Every state was assigned a “yes” answer for this question and given one point for the ability to fund water conservation and efficiency programs through the DWSRF and CWSRF programs. The answer will remain “yes” and the point total for this question will remain 1. Additionally, 1 point of extra credit will be awarded for the PSC allowing municipally owned utilities to recover the costs of water conservation and efficiency efforts through rates. http://psc.wi.gov/conservation/water/wc-utilities.htm 20. Does the state provide statewide ET microclimate information for urban landscapes? Wisconsin DNR and PSC Comment: We believe the proper response to this question is “Yes.” The question focuses on urban ET values, and these are published by UW Extension and can be downloaded from their website. Please provide additional detail in the question if you are looking for a more specific portrayal of location-specific ET values. AWE Response: The ET data posted by UW Extension appear to be for agricultural water users. According to the site, “We offer these data so that growers and other stakeholders in our agricultural landscape can make informed decisions about management practices.”1 The average municipal water customer will not be able to use the data to make informed decisions about urban landscape irrigation. The answer and score remain unchanged.

UW Extension AG Weather: http://www.soils.wisc.edu/uwex_agwx/

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Thank you again for reviewing the draft report and submitting comments. Overall, the score and grade for the state of Wisconsin remain unchanged. However, 1 point of extra credit was added for the PSC allowing utilities to recover the costs of conservation programs thought rates, and 1 point of extra credit was subtracted for question 11.

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

Clean Wisconsin Comments on: Alliance for Water Efficiency’s Draft “Water Efficiency and Conservation State Scorecard” Wisconsin’s Water Conservation and Efficiency Policies Thank you for the effort in conducting this study, and in compiling this report. We see it as a useful tool both to help us gauge where we stand relative to other states and to help us identify where there may be further potential to improve our water conservation policies. We are optimistic that this report and other complimentary efforts underway in Wisconsin bode well for further improvements on water conservation in the state. For example, the state of Wisconsin recently commissioned a report (Water Efficiency Potential Study for Wisconsin, 2011 – available at http://psc.wi.gov/conservation/documents/waterEfficiencyDec2011.pdf), which quantifies water savings potential from a range of utility-scale water conservation and efficiency measures and suggests some areas where state policies can guide utility efforts to promote greater water efficiency. Thank you also for the opportunity to comment on this draft before it is made final. In order for this report to be most useful, it is important that the information that it contains is an accurate representation of the current water conservation policies in each state, and we are pleased to be able to provide input on those policies in the state of Wisconsin. We are happy to have our comments included in the final report.

General Comments We wanted to encourage you to consider the following general comments: I.

We find appropriate and support your evaluation of the following: - All of the questions for which Wisconsin’s answer was “no” (Questions 2-7; 10; 19; 20). - Question 8, “Water loss regulation or policy?” - Question 9, “Conservation activities as part of water permitting process?” - Question 18, “Does the state require volumetric billing?”

II.

Wisconsin has made some great strides toward implementing proactive water conservation and efficiency policies, especially as they pertain to water use within the Great Lakes Basin (GLB) and where the Great Lakes Compact makes provisions for certain kinds of diversions outside of the GLB. Unfortunately, however, these policies generally apply only in the GLB portion of Wisconsin and do not extend to the roughly two-thirds of the state that lies 634 W. Main Street • #300 Madison, WI 53703 www.cleanwisconsin.org

Phone: 608-251-7020 info@cleanwisconsin.org

Formerly Wisconsin's Environmental Decade

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outside of the GLB. The portion of Wisconsin that lies outside of the GLB has sustainable water use concerns that demand effective water conservation and efficiency as part of the solution, but current Wisconsin policies do not necessarily promote the effective use of water in those areas. III.

To the extent that Wisconsin statutes (e.g., Wis. Stat. §281.348) require water supply planning statewide, they do not require that public water supply systems undertake water conservation planning, nor do they require implementation of water conservation and efficiency measures. The requirement is only that those systems consider water conservation in evaluating water supply alternatives.

Comments on Specific Policy Questions IV.

Pertaining to Question 11, “Conservation planning required separate from drought plans?” For Wisconsin communities within or straddling the GLB, Wis. Stat. §281.346 and Wis. Admin Code NR 852 do require water conservation planning for withdrawals that average 100,000 gallons per day or more in any 30-day period, or for persons applying for a new or increased diversion (NR 852.02). Similarly covered by NR 852 are communities outside of the GLB where withdrawals will result in a water loss (through inter-basin transfer or consumptive use) averaging more than 2,000,000 gallons per day in any 30-day period. Statewide, there are permitting requirements under NR 811 for new proposed withdrawals to include a wellhead protection plan which incorporates water conservation. It is our understanding, however, that these permitting requirements are addressed in Question 9 of the Scorecard report. Unfortunately, there is no conservation planning required for other persons or types of withdrawals in Wisconsin. There are requirements under Wis. Stat. §281.346 for public water supply systems statewide serving populations of 10,000 or more to develop a water supply plan by December 31, 2025. In developing this plan they are required to identify supply options, including water conservation, and to conduct a cost-effectiveness analysis of those options. However, there is no requirement that identified cost-effective water conservation measures be incorporated into the water supply plan.

Pertaining to Question 12, “Authority to approve or reject conservation plans?” As described above in Comment IV, there is no statewide requirement for water conservation plans to be generated. As such, there is no corresponding statewide authority for such plans to be approved or rejected. It should be noted that the Department of Natural Resources may approve or deny water supply plans generated under Wis. Stat. §281.346, which are required to include identification of water conservation options, based on criteria including cost-effectiveness. However, as the requirement for those water use plans is simply to identify, as opposed to include, water

634 W. Main Street • #300 Madison, WI 53703 www.cleanwisconsin.org

Phone: 608-251-7020 info@cleanwisconsin.org

Formerly Wisconsin's Environmental Decade

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September 2012

conservation options, it is unclear as to how this would qualify under Question 12 of the Scorecard Report. VI.

Pertaining to Question 13, “How often are plans required?” If we understand this question to concern water conservation plans, as opposed to more general water supply plans, there are no statewide requirements (see Comment IV). Regarding the general water supply plans described under Wis. Stat. §281.346 (for public water supply systems serving populations of 10,000 or more), requirements will not be in effect until December 31, 2025. Thereafter, those water use plans will then cover a maximum of 20 years.

VII.

Pertaining to Question 14, “Planning framework or methodology?” As in Comment VI, if this question is understood to correspond to water conservation plans, there is no statewide enforceable policy guideline or framework for water conservation planning.

VIII.

Pertaining to Question 15, “Implementation of conservation measures required?” For the limited subset of Wisconsin water users covered by Wis. Stat. §281.346 and Wis. Admin Code NR 852, we agree and support the assessment that Wisconsin has some limited language facilitating implementation of water conservation, but lacking an enforceable hook. As previously noted, however, there is currently no statewide water conservation planning requirement in Wisconsin. As there is currently no statewide requirement for water conservation planning, there are no measures or language requiring the implementation of such plans statewide.

Again, thank you for the opportunity to comment on this report, and for your careful consideration of our comments. The thoughtful and transparent process undertaken here will ensure the credibility of the final report. Sincerely,

Ezra Meyer Water Resources Specialist emeyer@cleanwisconsin.org (608) 251-7020, ext. 20

634 W. Main Street • #300 Madison, WI 53703 www.cleanwisconsin.org

Phone: 608-251-7020 info@cleanwisconsin.org

Formerly Wisconsin's Environmental Decade

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September 2012

September 4, 2012 Ezra Meyer Water Resources Specialist Clean Wisconsin 634 W. Main Street, #300 Madison, WI 53703 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Ezra: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Below is our response to your comments regarding questions 11‐15 of the draft report. The original Clean Wisconsin comments are in blue text and the AWE response is in black text. 11. Does the state have a mandatory planning requirement for potable water conservation/efficiency separate from drought emergency plans? Clean Wisconsin Comment: For Wisconsin communities within or straddling the GLB, Wis. Stat. §281.346 and Wis. Admin Code NR 852 do require water conservation planning for withdrawals that average 100,000 gallons per day or more in any 30‐day period, or for persons applying for a new or increased diversion (NR 852.02). Similarly covered by NR 852 are communities outside of the GLB where withdrawals will result in a water loss (through inter‐basin transfer or consumptive use) averaging more than 2,000,000 gallons per day in any 30‐day period. Statewide, there are permitting requirements under NR 811 for new proposed withdrawals to include a wellhead protection plan which incorporates water conservation. It is our understanding, however, that these permitting requirements are addressed in Question 9 of the Scorecard report. Unfortunately, there is no conservation planning required for other persons or types of withdrawals in Wisconsin. There are requirements under Wis. Stat. §281.346 for public water supply systems statewide serving populations of 10,000 or more to develop a water supply plan by December 31, 2025. In developing this plan they are required to identify supply options, including water conservation, and to conduct a cost‐effectiveness analysis of those options. However, there is no requirement that identified cost‐effective water conservation measures be incorporated into the water supply plan. AWE Response: Wisconsin was given credit for two separate planning processes which are found in Wis. Stat. § 281.348 and Wis. Admin. Code NR § 852.04. The process under Wis. Stat. § 281.348 only requires water supply service area plans. However, credit was given because conservation is a required component of these mandatory plans. Water supply service area plans are to include, “Identification of the options for supplying water in the area for the period covered by the plan that are approvable under other applicable statutes

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and rules and that are cost‐effective based upon a cost‐effectiveness analysis of regional and individual water supply and water conservation alternatives.” Wis. Admin. Code NR § 852.04 only requires conservation plans for water suppliers withdrawing water from a source within the Great Lakes Basin. The score will remain 2 for question 11. However, the extra credit point associated with it has been removed. Additionally the scoring rubric has been amended for question 11 for clarity. It now reads: 0 = No, or already given credit under question 9 11. Conservation planning required separate from drought plans?

1 = Plan is required only for a very limited set of users, or broadly applicable but conservation is only a component of a larger plan 2 = Plan requirement is broadly applicable, and it is a standalone conservation plan

12. Does the state have the authority to approve or reject the conservation plans? Clean Wisconsin Comment: As described above in the comment pertaining to question 11, there is no statewide requirement for water conservation plans to be generated. As such, there is no corresponding statewide authority for such plans to be approved or rejected. It should be noted that the Department of Natural Resources may approve or deny water supply plans generated under Wis. Stat. §281.346, which are required to include identification of water conservation options, based on criteria including cost‐effectiveness. However, as the requirement for those water use plans is simply to identify, as opposed to include, water conservation options, it is unclear as to how this would qualify under Question 12 of the Scorecard Report. AWE Response: Wisconsin has authority to approve water supply plans under Wis. Stat. § 281.348 and conservation plans Wis. Admin. Code NR § 852.11. The score for this question will remain unchanged. Wis. Stat. § 281.348(3)(b): "The department shall [establish by rule] procedures and requirements for all of the following: . . . 2. Approval of a plan by the governing body of each city, village, and town whose public water supply is addressed by the plan before the plan is submitted to the department. . . 2m. Approval of a plan by the department." Wis. Admin. Code NR § 852.11: "(1) The department's review of an application for a new or increased withdrawal, diversion, or water loss approval shall include a review of the water conservation plan required . . . (2) The department may not issue an approval for an application for a new or increased withdrawal, diversion, or water loss approval unless the water conservation plan meets the applicable requirements under this chapter." 13. How often does the state require the water utilities to submit a potable water conservation plan (not part of a drought emergency plan)? Clean Wisconsin Comment: If we understand this question to concern water conservation plans, as opposed to more general water supply plans, there are no statewide requirements (see comment

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Regarding the general water supply plans described under Wis. Stat. §281.348 (for public water supply systems serving populations of 10,000 or more), requirements will not be in effect until December 31, 2025. Thereafter, those water use plans will then cover a maximum of 20 years. AWE Response: Credit was given to Wisconsin for the water supply plans under Wis. Stat. § 281.348 because water conservation is a required component. These plans are to be updated every 20 years. The plans required by Wis. Admin. Code NR § 852 are to be updated every 25 years according to the term of a general permit specified in Wis. Stat. § 281.346. The score for this question will remain unchanged. 15. If the state has a mandatory planning requirement for potable water conservation separate from drought emergency plans, is there a framework or prescribed methodology? Clean Wisconsin Comment: As in the comment pertaining to question 13, if this question is understood to correspond to water conservation plans, there is no statewide enforceable policy guideline or framework for water conservation planning. AWE Response: Wisconsin was awarded 0.5 points for question 14 based on the limited framework provided for the requirements under Wis. Admin. Code NR § 852. 16. Does the state require water utilities to implement conservation measures, beyond just the preparation and submittal of plans? Clean Wisconsin Comment: For the limited subset of Wisconsin water users covered by Wis. Stat. §281.346 and Wis. Admin Code NR 852, we agree and support the assessment that Wisconsin has some limited language facilitating implementation of water conservation, but lacking an enforceable hook. As previously noted, however, there is currently no statewide water conservation planning requirement in Wisconsin. As there is currently no statewide requirement for water conservation planning, there are no measures or language requiring the implementation of such plans statewide. AWE Response: The score for this question will remain 1 based on the requirements for implementation in Wis. Admin. Code NR § 852. There are implementation requirements for the water supply plans in Wis. Stat. § 281.348 but it is not conservation specific. Thank you again for your thorough review and comment on the draft report. It shares an important perspective and will help improve future efforts. Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

COMMENTS ON WATER EFFICIENCY AND CONSERVATION STATE SCORECARD George Kunkel, P.E. Philadelphia Water Department

The comments submitted herein deal strictly with question #8 regarding Water Loss Policy. 1. It is very appropriate that the advisory team determined to include a question regarding water loss policy as this is one of the most important – yet often overlooked – aspects of water efficiency assessments. 2. Water loss policy is currently undergoing a state of maturation in North America. Traditionally, water utilities and regulatory agencies conducted water loss assessment in a cursory manner employing “unaccounted-for” water terminology with the imprecise performance indicator “unaccounted-for” water percentage as the measure of loss standing. The use of “unaccounted-for” approaches is now recognized as poor practice by the American Water Works Association in its guidance manual (M36) Water Audits and Loss Control Programs (3rd Edition, 2009) 3. The above publication puts forth in great detail the water auditing process developed jointly by AWWA and International Water Association that employs the specifically defined term “Nonrevenue” Water, and includes an array of robust performance indicators to allow reliable tracking of both apparent and real losses. This approach is superior to the dated approach using “unaccounted-for” water and the “unaccounted-for” water percentage, and a number of state and regional water regulatory agencies have adopted it, and now require water utilities to submit detailed water audit data in this format. 4. In the opinion of this writer, no states yet have the full degree of sophistication in their requirements that can result in meaningful reductions in non-revenue water. However, several agencies have taken notable strides to establish requirements that begin to move in this direction. These include the state of Texas, state of Georgia, and the California Urban Water Conservation Council. While the last of these is not a state regulatory agency, it holds influence over almost 300 of the largest water utilities in the State of California and its program will create considerable impact in non-revenue water reduction. All of these programs have moved away from “unaccounted-for” approaches to the “Non-revenue” Water terminology of the IWA/AWWA water audit methodology. These three examples would serve well in the report as highlighted best practice examples. 5. The three states highlighted in the report (New Hampshire, New Jersey, and Washington) as good examples, do not reflect current best practice (or a transition to best practice) since they cling to both “unaccounted-for” terminology and “unaccounted-for” percentages as targets. 6. The provisions of the New Hampshire requirements note that utilities “shall implement a water audit and leak detection program in accordance with Manual of “Water Supply Practices: Water Audits and Leak Detection”. Additionally, the requirements note that “the water system shall estimate the volume and percentage of unaccounted-for once every year using protocols and procedure described in “Water Supply Practices: Water Audits and Leak Detection”. It must be noted that this publication referenced by New Hampshire is that of the First (1991) and Second (1999) editions of the AWWA M36 publication, which are now out-of-print. The “procedures and protocols” prescribed in the First and Second editions of the M36 publication were greatly modified and superseded by the 3rd edition of the M36 which was published in

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2009. The 3rd edition recommends against use of the term “unaccounted-for” water and the “unaccounted-for” water percentage. Hence, New Hampshire’s current requirements are referencing outdated materials and advocate outmoded practice. While the approach put forth by the State of New Hampshire is noble – particularly their emphasis on leakage control – their methodology is greatly dated and recognized as non-preferred practice. 7. Similarly, both the State of New Jersey and the State of Washington are highlighted as best practice examples in the report, but they both feature emphasis on the poor practice of percentage indicators. 8. It is recommended that the authors remove the examples of New Hampshire, New Jersey and Washington as best practice examples discussed in the report for Question #8. 9. It is recommended that the authors instead include as best practice examples the programs implemented by the State of Texas (Texas Water Development Board) and State of Georgia (Department of Natural Resources), as well as the water loss best practice of the California Urban Water Conservation Council. It is recognized that the California Urban Water Conservation Council may not have been included directly in the survey, however the California Department of Water Resources has been interacting with the Council and it may be possible to reference both agencies jointly. 10. The programs offered by the above three agencies are much more progressive in addressing water loss and should be offered as best practice examples, over any agencies still using “unaccounted-for” approaches.

Thank you for your consideration

Note: the author is the former chair of the AWWA Water Loss Control Committee and is the technical editor for the AWWA M36 publication – 3rd edition and forthcoming 4th edition.

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September 10, 2012

George Kunkel, P.E. Water Efficiency Program Manager Philadelphia Water Department 1101 Market Street, 4th Floor Philadelphia, PA 19107 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear George: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Your comments pertained to the water loss highlights section. We understand your concern and agree with your assessment that the states highlighted are not utilizing the most recent water loss accounting methodology. The project team relied on statutory language to analyze requirements among the 50 states. While Texas and Georgia utilize the latest accounting methodology, this methodology is not officially adopted in law, nor do these states require any corrective action. Tennessee adopted new methodology on June 6, 2012, after you submitted your comments. We modified the water loss highlights section and added a discussion that describes the need for both a strong law that requires corrective action, and an adoption of the latest water loss accounting methods. We used Texas, Tennessee, and Georgia as examples of states that use cutting edge accounting practices, and New Hampshire, New Jersey, and Washington as examples of states with strong laws. We hope that your comments and the updated text in the document will encourage states to adopt both strong statutory requirements and industry best practices for calculating water loss. Thank you again for reviewing the draft report and submitting comments.

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

From: Jenny Hoffner [mailto:JHoffner@americanrivers.org] Sent: Monday, June 04, 2012 11:00 PM To: Mary Ann Dickinson; Bill Christiansen Cc: Ben Emanuel Subject: Water Efficiency and Conservation Scorecard Comments Bill/Mary Ann Please note that I am unable to access the report at this time. It will not download, so I am unable to include the exact email and subject headings requested. Please confirm you received this email and will be able to take these comments info consideration. Thank you! Jenny ____________________________________________________________________ June 4, 2012 Dear Friends at the Alliance for Water Efficiency: Thank you for the opportunity to comment on your recent draft Water Efficiency and Conservation Scorecard report. We appreciate the important work the Alliance for Water Efficiency is doing to advance efficient water use practices and policies and appreciate the role this report can play in encouraging advancement in state policy. Below we offer brief comments on the list of policies examined in all states (rather than one specific state) for your consideration to further strengthen the report as a tool for promoting effective state‐level efficiency policy, programs, and oversight. While the report examines a range of incentives and best management policies and programs, requirements for implementation of efficiency measures should be taken into consideration as well. For instance, while it is true that Georgia requires water conservation plans as a part of a water withdrawal permit request or renewal, Georgia does not truly require the implementation of the plans. The plans are checklists without benchmarks or metrics and communities generally satisfy the requirements by stating that they are ‘making progress toward’ developing a given program or policy. We do not believe that this issue is unique to Georgia and would encourage AWE and ELI to score the states on whether or not there is robust implementation of and metrics associated with policies on the books. State policy that focuses on a water use reduction goal is one way to evaluate whether a state is approaching conservation and efficiency for results and not just as a good thing to do politically. California set a goal of 20% reduction in urban water use by 2020 which creates a metric by which to measure results. We noticed that this type of policy was not included in the report. We encourage you to add this type of performance measure, goal‐oriented policy to the list of measures evaluated. Thank you again for putting together what promises to be a very helpful resource for water efficiency advocates across the country. Best Jenny Hoffner American Rivers 404.373.3602

Alliance for Water Efficiency

September 2012

September 10, 2012

Jenny Hoffner Director, Water Supply American Rivers 108 East Ponce de Leon Ave. Suite 212 Decatur, GA 30030 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Jenny: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Your comments primarily referred to a lack of analysis regarding the implementation of water efficiency measures. Due to budgetary limitations we were unable to identify and track actual implementation of state mandated water efficiency measures. The scoring assessment relied on legal requirements, and question 15 was used to identify requirements for implementation. 15. Does the state require water utilities to implement conservation measures, beyond just the preparation and submittal of plans? Many states do legally require implementation beyond the preparation and submittal of plans. Georgia, used as an example in your comments, did not receive any points for question 15. Your comments also identify the importance of state policies that set consumption targets such as California’s 20x2020 policy. While we did not ask about water use reduction targets specifically, this was not overlooked in our scoring. Additional language was added to the policy highlights section of the report for questions 11 and 15 regarding California’s 20x2020 policy, and details are included in the state’s AWE Online Resource Library listing. Thank you again for reviewing the draft report and providing comments.

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

From: J B Hoyt Sent: Monday, April 30, 2012 12:53 PM To: Mary Ann Dickinson Cc: Carole Baker; Jeffrey Hughes; Bill Christiansen Subject: Release of AWE's draft State Scorecard

Mary Ann: Thank you for making us aware of this report. This is the first I was aware of it. It is a chilling explanation of state readiness to address water availability. Noting that the document still says "draft", I offer some perspective regarding clothes washers, specifically the following paragraph: 5. Does the state have a water consumption regulation for clothes washers that is more stringent than the federal standard? Clothes washers were included when question 6 from the 2009 survey was divided into specific components. Currently the federal standard for residential and commercial family‐sized clothes washers requires a water factor (WF) of 9.5 or less based on the Energy Independence and Security Act of 2007. The water factor is a value used to determine the water efficiency of a clothes washer, and represents the number of gallons used to wash 1 cubic foot of laundry. The lower the water factor, the higher the efficiency. Energy Star labeled clothes washers must have a water factor of 6.0 or less to qualify, which is 37 percent lower than the WF required by the national standard. As of this writing, Energy Star has labeled 367 residential clothes washers and 71 family sized commercial clothes washers. Consumers would have a large variety of clothes washers to choose from if a state created a standard more efficient than what is found in the Energy Independence and Security Act of 2007. The document fails to note that in order to create a state standard more efficient than the federal standard, a state must seek a waiver from the federal law, based on circumstances unique to that state. Should a state do so, that would reduce, not increase the number of models which meet the (more efficient) state standard. Hope this helps!

■ J.B. HOYT // DIRECTOR, SUSTAINABILITY & REGULATORY AFFAIRS Office 269.923.4647 // Cell 269.277.1032 // Whirlpool Corporation // www.WhirlpoolCorp.com 2000 M‐63 North // MD 3005 // Benton Harbor, MI 49022

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Alliance for Water Efficiency

September 2012

September 10, 2012

J.B. HOYT Director, Sustainability & Regulatory Affairs Whirlpool Corporation 2000 M-63 North MD 3005 Benton Harbor, MI 49022 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear J.B.: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. Your comment pointed out that the report failed to mention the requirement for a waiver of preemption, should a state develop a standard for clothes washers more stringent than what is federally required. A discussion of the requirement for a waiver of preemption was subsequently added to the report under the section that describes question 5 (clothes washers). Text was also added to the section that describes question 6, to specify that a similar standard for pre-rinse spray valves would require a waiver for preemption as well. Thank you again for reviewing the draft report and submitting comments.

Sincerely,

William Christiansen Program Planner

Alliance for Water Efficiency

September 2012

Water Efficiency and Conservation State Scorecard – Comments Michael Jensen (505) 362-1063 mjensen@amigosbravos.org The Turner Foundation and the two organizations – Alliance for Water Efficiency (AWE) and Environmental Law Institute (ELI) – are to be commended for the work that went into this report. It’s an extremely important exercise that should be updated and improved upon (as the organizations themselves acknowledge is the intent). The organizations are to be commended – again – for providing an opportunity for public comment. While such comment seems limited to those items in the survey that deal with the legal/statutory basis for “Yes” answers to the survey instrument and not to the methodology that went into the survey or its assessment/scoring, it is the methodology that really needs addressing. My comments deal with both general survey methodology and with specific New Mexico scores. General Comments  The Great Lakes states are dealt with in a different manner because of the St. Lawrence-Great Lakes agreement that committed all the surrounding states and provinces to conservation measures. However, some states, like Illinois, limit their measures to the parts of the state contiguous with its lake and not to the state as a whole, making assessment for the Great Lakes states difficult in comparison with other states  As the authors acknowledge, some of the questions overlap, so states could get “Yes” points multiple times for essentially the same policy or resource. The report provides some examples of this and how it was (sometimes) dealt with, but without knowing all the details, it is impossible for a reader to figure out when a state might be gaming the survey in this way. The only solution is more carefully crafted questions and much more due diligence. How this might have biased certain scores is impossible to assess  The report and its media release give great attention to the “scorecard” and the “grade”. However, in the report, the authors distance themselves from this focus, stating that the scorecard “is notably different from a school report card”, is “more forgiving”, and is meant to indicate “the level of effort states are making” in conservation policies and laws. That disclaimer will have little or no impact on how the media, the state agencies, or the public interpret the stories they see about the report, which clearly lead one to anticipate an “A” thru “F” system (that has no “F”s)  The scoring appears to have been done by taking the average score (9.6) and using this as the midpoint in the “C” range. Steps up and down from this grade were then established using a variable 3- or 4-point spread for each step (no explanation for why the steps weren’t equal). There are a number of problems: a) the “A+” step has a 7-point spread, double the others; b) there is no step below “D”; the whole system – as mentioned above – defies the logic of a report card, despite the explanation from the authors Specific Scoring States could get a total of 40 points from the 19 questions scored on the survey (the survey had 20 questions, but #19 didn’t have enough verification possible and was eliminated). States could get up to an additional 3 bonus points as “extra credit” for particular policies or resources. However, there are problems with the validity of some of these questions and the way they were scored and the problems raised below are used to create a more accurate scoring system within the criteria laid out in the report itself. In addition, there is no explanation of the criteria used to establish scores for the extra credit.  ELI carried out the verification of legal/statutory basis for “Yes” answers. In doing so, it relied for information on this from the state agency(ies) it contacted. However, ELI also uncovered “relevant but un-cited authorities” in the course of doing its due diligence and included these in its evaluation.

Alliance for Water Efficiency

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This may be nit-picking, but it seems to me that an agency that is not aware of the basis for its statutory authority has problems and ELI should have limited itself to those sources cited explicitly by the agency Question #1 – “All states received 1 point for answering”. That is, every state got a free point just for showing up or signing their name to the test. This is irrelevant and shouldn’t count towards a score. In effect, then, the score should be based on 39 basis points + 3 bonus points Questions #2-#6 – These ask specific questions about various low-flow or low-consumption appliances and equipment for residential, commercial, and institutional settings, such as toliets, showerheads, and pre-rinse spray valves (such as restaurants use). For questions #3 (showerheads), #5 (clothes washers), and #6 (spray valves), no state reported policies or rules dealing with these items. Therefore, while these three items may be important for water conservation, they aren’t on anybody’s agenda and shouldn’t be scored, since doing so artificially deflates the scores. Withdrawing these questions from the score now gives 36 basis points + 3 bonus points Question #14 – This question deals with whether there is a planning framework or methodology. However, while the report says that ELI viewed as “immaterial” any policy or rule that was unenforceable, the scorecard gives a state 0.5 points for having “unenforceable guidelines” or a “framework for what plans may include”. This latter provision might be justifiable, but there is already the option to get 1 point for having a “framework that is not robust”, so why allow 0.5 points for either an unenforceable plan or a framework that is not robust (because it just provides general ideas for what a plan “may” include? Removing that possible score leads now to 35.5 basis points + 3 bonus points Question #16 – This question asks whether states provide funding for urban water conservation programs. However, the report states clearly that the question is meant to find out if states provide funding in addition to federally funded State Revolving Fund accounts. Nevertheless, the question can get a score of 1 point for using Drinking Water State Revolving Funds. Eliminating this point now gives 34.5 basis points + 3 bonus points. Using the report’s own scoring system, 7 states currently do absolutely nothing to conserve water aside from having an apparently superfluous state office that deals with water conservation (like Alabama’s Office of Water Resources) and using federal funds (which isn’t supposed to count as point-worthy). These 7 states (including Alabama) scored 2 points for these two items and still managed to get a “D” – not an “F”. 8 other states did literally next-to-nothing and scored 3 points because they got one additional point (such as Alaska, which got a bonus point for a statute setting a water conservation fee and reserving water for fish – which isn’t an urban water conservation issue per se; or Idaho, which actually does provide state funds for urban water conservation and got 1 point for that; or Maine, which answered “no” to having a water loss regulation or policy, but was still given 1 point by the authors – apparently – because water systems have to report water loss in their annual reports). An additional 4 states also got “D”s with scores of 3.5-4 points. In total then, 19 states – 38% – don’t do anything more than have an agency supposedly tasked with state-wide water conservation and taking federal funds (and maybe something else). If states like this cannot receive failing grades, then there is something fundamentally wrong with the scoring methodology.

New Mexico I haven’t gone back through the scoring for every state to see how it’s score would change with the lower basis points, but I did go back through New Mexico’s score and recalculated it. In the report, New Mexico scores 10.5, which is rounded up to 11 and is at the top of the 4-point “C” spread. Below is the revised score for New Mexico:  Possible score – 34.5 basis points + 3 bonus points (37.5 total)  Question #1 – Subtract the point for showing up (having a state agency)  Question #9 – Subtract at least 1 point for conservation activities as part of the water permitting process (the state said “No”, but the authors – apparently – still gave the state 2 points for the OSE’s ability to refuse a permit if it is “contrary to the conservation of water”. This was the case with the

Alliance for Water Efficiency

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Albuquerque Bernalillo County Water Utility Authority diversion permit, but was the result of extensive pressure from outside groups protesting the permit; it is not clear to me that the OSE does this as standard policy absent pressure; I’ll compromise and let the state keep one point) Question #14 – Subtract the 0.5 point for having an “unenforceable” or indeterminate planning framework or methodology Question #16 – Subtract 1 of the 2 points given for state funding (since one of those is due to using federal funds, which is explicitly not what the question meant to score) Question #17 – Keep the two points for technical assistance for urban water conservation Question #20 – Keep the 2 points for providing ET microclimate information for urban landscapes (although the tool on the OSE site is a beta version and did not work despite several attempts; it also requires a fair amount of additional research on soil type, sprinkler or drip system efficiency, and other items to actually produce a useful site-specific result) Extra Credit – Keep the 1 point for the OSE’s GPCD calculator and methodology (although the OSE seems unconcerned about questions regarding possible inaccuracies in its use) Therefore, New Mexico’s total score would be 7 points (not 10.5 points) out of 37.5. This equals 18.67%. Applying this percentage to the report’s 43 total points, the result is 8 points (not 10.5/11). While still a “C”, it is on the cusp to a “C-“, not the cusp to a “C+”. Sure, it’s not a huge deal, but at least it is a little more realistic and relevant to the goal of increasing robust and enforceable water conservation laws and policies

Despite the problems I see with the methodology, the report is still useful as a way to compare how New Mexico is doing in relative terms with other states in the southwest. Here’s where the six states stack up:  California – 29 points, almost all from strong conservation and drought planning policies and regulations, including the maximum 3 points extra credit for “robust” answers to several questions)  Texas – 29 points, spread across all categories, including the maximum 3 bonus points for strong answers to roughly the same questions California received extra credit for)  Arizona – 22 points, all from planning policies and regulations (no appliance rules)  Colorado – 16.5/17 points, for some planning policies and regulations, including the maximum 3 points for having a transparent conservation program and builder incentives)  Utah – 14 points, for a little bit of planning activity  New Mexico – 10.5/11 points, for some very limited planning activities This sort of comparison is quite useful and will be increased when all the data used for the report are available on the AWE site. However, I have two final points:  In the urban context, water consumption – water delivered to customers and not returned through the sewer system and (usually) to a river or reuse of some sort – is almost entirely the result of outside water use (landscape watering). For example, outdoor water use is roughly 50% of total water production in New Mexico, but the source of nearly 100% of consumption. Therefore, while indoor appliance rules are important, it is outdoor water conservation measures (mandatory limits on time of day and number of days, mandatory use of drought tolerant plants and limits on turf, incentives for roof collection of rainwater, etc) that will make the biggest difference in conserving water  Water conservation is often used as a source of new water to promote continued urban expansion, so that in the end water is not actually conserved and the urban area has even less margin for dealing with times of water shortage. Therefore, it should be part of the survey to investigate what policies and rules might be in place to place some limits on growth, especially in states already facing protracted drought or water shortage

Alliance for Water Efficiency

September 2012

September 10, 2012

Michael Jensen Communications Director Amigos Bravos 105-A Quesnel Street Taos, NM 87571 RE: Comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. Dear Michael: Thank you for submitting comments on the draft report, The Water Efficiency and Conservation State Scorecard: An Assessment of Laws and Policies. We are extremely grateful that you took the time to review and comment on our findings. While the primary intention of the public commenting process was to identify any missing state policies, we certainly welcome general comments as well. Your comments were predominantly a critique of the scoring methodology. We appreciate your input on this and all of your concerns will be considered for any future efforts. The scoring system certainly is not perfect, but we feel it is a solid first step into the comparison of state level policies regarding water efficiency and conservation. Thank you again for reviewing the draft report and submitting comments, they provide a valuable perspective.

Sincerely,

William Christiansen Program Planner