Legal Alerts Apr 02, 2015

California Water Suppliers Facing Historic Mandatory Restrictions on Water Usage

Governor’s Goal: 25 Percent Statewide Water Savings

California Water Suppliers Facing Historic Mandatory Restrictions on Water Usage

For the first time in California’s history, urban water suppliers will soon be required to comply with new mandatory restrictions aimed at achieving a statewide 25 percent reduction in potable urban water use. Under an executive order issued by Gov. Jerry Brown Wednesday, the State Water Resources Control Board will develop, impose and enforce the mandatory water reduction measures, which will apply to local agencies that supply water to cities and towns across California. The Executive Order comes as water supplies continue to decline due to the severe drought gripping the state. The Order will have far-reaching implications for urban water suppliers, which will be required to develop rate structures and other pricing mechanisms, including new surcharges, fees and penalties, designed to maximize water conservation.

The Order, which can be viewed here, was issued amid news of a record-low snowpack in the Sierra Nevada. The Order includes a number of new provisions for conserving water, including:

  • A statewide initiative, led by the Department of Water Resources, to replace 50 million square feet of lawns and ornamental turf with drought tolerant landscapes.
  • Restrictions to be imposed by the Water Board requiring that all commercial, industrial and institutional properties, such as campuses, golf courses and cemeteries, immediately implement water efficiency measures to reduce potable water usage.
  • A requirement that the Water Board direct urban water suppliers to develop rate structures and other pricing mechanisms to maximize water conservation consistent with the new statewide water restrictions. Potential mechanisms include, but are not limited to, surcharges, fees and penalties. The Water Board must adopt emergency regulations to implement this directive. The California Public Utilities Commission is also requested to take similar action with respect to investor-owned utilities that provide water services.

The Order requires the Water Board to impose restrictions to achieve a collective 25 percent reduction statewide in potable urban water use through Feb. 28. The savings goal is designed to save 1.5 million acre-feet of water over the next nine months. The new restrictions will require water suppliers to cities and towns to reduce usage, as compared to the amount used in 2013. The Water Board will consider the relative per capita water usage of the service area of each water supplier, and require that areas with high per capita use achieve proportionately greater reductions than those with low use.

Felicia Marcus, chair of the State Water Resources Control Board, explained to the media that the Water Board would develop a “sliding scale” approach to future regulations. It will take into account current per capita use of water and the differing levels of effort that public agencies have already demonstrated to reduce consumption and conserve water to this point. Thus, public agencies that have a demonstrated record of successfully promoting and achieving water savings will have a head start under the new measures and regulations that lie ahead. Those that have conserved for shorter periods of time, or have not achieved demonstrable reductions to date, will need to step up their efforts considerably. Marcus said her agency would begin determining next month what tools the board will use to enforce the directive, and noted that fines are likely for agencies that fail to meet their targets.

Marcus also acknowledged that the water pricing provisions in the Order would require agencies to navigate the limitations and requirements of Proposition 218 as new surcharges and fees come into play. She said the Water Board will work with local agencies “to figure out the best way to be helpful to them in this effort.”

The Order has implications for municipalities and counties, as well as water providers. Additional prohibitions and requirements in the Order include, among others:

  • A ban on irrigation with potable water of ornamental grass on public street medians, to be imposed by the Water Board.
  •  A requirement that the Department of Water Resources update the State Model Water Efficient Landscape Ordinance through expedited regulation. The updated Ordinance must increase water efficiency standards for new and existing landscapes through more efficient irrigation systems, greywater usage, onsite storm water capture, and by limiting the portion of landscapes that can be covered in turf. It also will require reporting on the implementation and enforcement of local ordinances, with required reports due by Dec. 31.
  • A prohibition, to be imposed by the Water Board, on irrigation with potable water on new homes and developments unless water-efficient drip irrigation systems are used.
  • A requirement that the Office of Emergency Services and the Department of Housing and Community Development work jointly with counties to provide temporary assistance, under certain conditions, for people moving from housing units due to a lack of potable water.

The Executive Order contains several government streamlining provisions. Similar to the Executive Order issued by Brown in April 2014 to address the drought, this week’s Order exempts a number of its specific directives from compliance with the California Environmental Quality Act.

Under the Order, agricultural water users will be required to report more water use information to state regulators to increase the state’s ability to prevent illegal diversions, waste and unreasonable use of water. The Order also strengthens standards for Agriculture Water Management Plans submitted by large agricultural water districts and requires small agricultural water districts to develop similar plans.

If you have any questions about the Executive Order or how it may impact your agency, please contact the attorney authors of this legal alert listed to the right in the firm’s Environmental Law & Natural Resources and Special Districts practice groups, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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