Proposed Statewide Water Restrictions
The following is a summary by the law firm of Downey Brand of Executive Order B-29-15 regarding the imposing of statewide water restrictions.
As California enters is fifth year of historic drought, Governor Edmund G. Brown Jr. has issued Executive Order B-29-15 (Order), designed to prevent waste and preserve water supply throughout the state. Most significantly – and for the first time in California’s history – the state has ordered mandatory reductions in urban water usage, of 25%. In addition, the Order contains a suite of requirements that will affect both urban and agricultural water suppliers and users throughout the state.
Impacts on Urban Water Suppliers and Users
The Order requires the State Water Resources Control Board (SWRCB) to impose a statewide 25% reduction in potable urban water usage through February 28, 2016. The baseline for calculating the required reductions will be the amount of water used in 2013. The reductions will be based on relative per capita water usage of each water suppliers’ service area, and require areas with high per capita use to achieve proportionally greater reductions than those with low use. In other words, the overall statewide target is a reduction of 25% as compared to 2013, but individual water users – especially those with low residential per-capita water use – are likely to be required to achieve smaller reductions. Conversely, urban water suppliers with higher per person water use are likely to be required to achieve reductions greater than 25%. The Order further requires urban water suppliers to continue to provide monthly information to the SWRCB on water usage, conservation, and enforcement.
The mandatory reductions are not limited to residential water use. Instead, commercial, industrial and institutional water users such as campuses, golf courses, and cemeteries will also be required to implement a 25% reduction in potable urban water usage. The Order is not clear whether users who have already achieved significant conservation (e.g., through the use of recycled water) will still need to reduce their use by 25%.
In order to maximize water conservation consistent with the 25% mandatory reduction, the Order requires urban water suppliers to develop rate structures and pricing changes – including surcharges, fees, and penalties. The SWRCB has been directed to adopt emergency regulations as necessary to implement this directive, as has the California Public Utilities Commission.
The Order directs the Department of Water Resources (DWR) to plan for and implement temporary salinity barriers within the Sacramento-San Joaquin River Delta in order to prevent salinity intrusion during the summer and thereby to preserve fresh water for potential use during the latter part of 2015 and 2016. To facilitate the construction and operation of these barriers, both the SWRCB and the Department of Fish and Wildlife are directed immediately to consider all regulatory approvals that may be required for the installation of the barriers. Any constraints associated with the water quality control plan for the Delta or the Delta Plan are waived to facilitate these barriers. Other regulatory requirements are also waived or substantially lessened, including CEQA compliance. Finally, if DWR is unable to reach an agreement with landowners, DWR is granted the power to take private property.
The Order also contains numerous broad directives that impact all water urban users throughout the state. These directives include the following:
- Replace 50 million square feet of lawns and ornamental turf with drought tolerant landscape; DWR will provide funding for underserved communities.
- Prohibit irrigation – except by drip or microspray – at any newly constructed homes or building.
- Prohibit irrigation with potable water of ornamental turf on public street medians
- Implement a statewide appliance rebate program and provide monetary incentives for replacing inefficient household devices.
- Update the State Model Water Efficient Landscape Ordinance by expedited regulation to increase water efficiency standards for new and existing landscapes. The Ordinance will require more efficient irrigation systems, greywater usage, onsite storm water capture, and limit portion of landscapes that can be covered in turf. DWR will require reports by December 31, 2015, regarding implementation and enforcement.
- Adopt emergency regulations improving efficiency standards of water appliances available for sale and installation in new and existing buildings.
- Implement a Water Energy Technology program to deploy innovative water management technologies for businesses, residents, industries, and agriculture.
Impacts on Agricultural Suppliers and Users
Regarding agricultural water users, the Order now requires all water rights holders to “frequently” report water diversions and use to the SWRCB and allow inspections by the SWRCB to determine whether illegal diversions or wasteful and unreasonable use of water is occurring. Moreover, the SWRCB is directed to bring enforcement actions against illegal diverters or those engaging in the wasteful and unreasonable use of water.
In exercising its authority, the SWRCB is authorized under emergency powers to inspect property or diversion facilities to evaluate compliance with water rights laws and regulations where the SWRCB believes such laws and regulations have been violated. If a property owner does not grant access to the SWRCB, the SWRCB may obtain an inspection warrant in order to conduct the inspection.
Agricultural water suppliers that supply water to more than 25,000 acres must include a detailed drought management plan in their 2015 Agricultural Water Management Plans. The drought management plan must describe actions and measures the supplier will take to manage water demand during the drought, and must include a quantification of water supplies and demands for 2013, 2014, and 2015 to the extent data are available.
The Agricultural Water Management Plan requirement is also extended to agricultural water suppliers that supply water to 10,000 to 25,000 acres of irrigated lands. Such suppliers must develop and submit their plan to DWR by July 1, 2016. As for larger suppliers, plans must include a detailed drought management plan and quantification of supplies and demands in 2013, 2014, and 2015, to the extent the data are available. DWR will give funding priority to these relatively smaller suppliers for the development and implementation of these plans.
Water agencies located in high and medium priority groundwater basins must immediately implement all requirements of the California Statewide Groundwater Elevation Monitoring Program pursuant to Water Code section 10933. Water agencies that do not comply will be referred to the SWRCB by December 31, 2015; the SWRCB will then consider adopting regulations or taking appropriate enforcement as necessary to promote compliance.
In an effort to increase the ability to move water to where it is needed most, DWR will immediately consider voluntary short term – one year or less – crop idling water transfers and water exchange proposals that are initiated by local public agencies and approved in 2015 by DWR pursuant to Water Code section 1810.
The Order suspends the provisions of the California Environmental Quality Act (“CEQA”) for a number of different types of projects, specifically:
- Reducing urban water use by 25%;
- Replacing 50 million square feet of turf;
- Adopting rebate programs for water-efficient household devices;
- Implementing non-residential water efficiency measures;
- Prohibiting the irrigation of ornamental turf;
- Prohibiting certain types of irrigation with potable water at for new homes;
- Adopting new urban rate structures that will conserve water;
- Monthly reporting by urban water suppliers on water usage, conservation and enforcement;
- Updating the State Model Water Efficient Landscape Ordinance through expedited regulation;
- Developing emergency regulations that establish standards to improve water appliance efficiency;
- Developing a Water Energy Technology program;
- Implementation of Emergency Drought Salinity Barriers and regulatory approvals for their installation;
- Implementing short term voluntary crop idling water transfers; and
- Prioritizing new safe drinking permits that enhance supply.
In other words, with the exception of the salinity barriers in the Delta, the CEQA exemptions apply to efforts that limit water use rather than efforts to increase the supply of water during this drought year. There is an exception for short-term water transfers due to crop idling, but that exemption from CEQA only applies to pre-1914 appropriative rights, as short term transfers of post-1914 rights are already exempt. Moreover, while the CEQA exemption applies to action by state agencies, it is unclear to what extent local agency action is exempt. Indeed, in order for local agency action to be exempt from CEQA, the state agency with primary responsibility for implementing the related directive must first concur that local action is required.
Of potential importance is a provision in the Order that requires state agencies to prioritize review and approval of water infrastructure projects and programs that increase local water supplies, including water recycling facilities, reservoir improvement projects, surface water treatment plants, desalination plants, stormwater capture, and greywater systems. Particularly in this drought year, many water agencies have such projects well in the planning process. If the state were able to process those permit applications in parallel with the CEQA process (which would require an additional Executive Order), such projects could be brought on line more quickly and augment the state’s very short water supplies.
Last, any regulations promulgated pursuant to this Order are not required to comply with administrative procedures for rulemaking, and only a public meeting is required prior to adoption.
As California battles its fifth straight year of drought, the Order represents the state’s strongest attempt yet to mandate water efficiency and preserve existing supplies. Indeed, Governor Brown’s comment that “it’s a different world” and so “we have to act differently” will likely characterize much of the discussion for the remainder of this year and into 2016. It is to be hoped that the Governor will quickly add to the provisions of the Order additional steps to enable California to increase its limited water supplies during the 2016 water year.
Note: This communication is provided as a general information service of Downey Brand, LLP and is not intended to be, and should not be relied upon as legal advice.