California Drought State of Emergency Calls On State & Local Agencies to Take Immediate Action

by Best Best & Krieger LLP
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Last month, Governor Jerry Brown declared a drought state of emergency in response to record-low water California Drought State of Emergency Calls On State & Local Agencies to Take Immediate Actionlevels in California’s rivers and reservoirs as well as an abnormally low snowpack. This put into motion policy and procedural directives to implement California’s management of drought conditions. The declaration calls on public agencies that manage or deliver water to implement a variety of measures including:

  • Calling upon local urban water suppliers and municipalities to immediately implement local water shortage contingency plans and update urban and agricultural water management plans.
  • Requiring the California Department of Water Resources (DWR) to undertake a statewide water conservation program to encourage Californians to reduce water use by 20 percent.
  • Directing the State Water Resources Control Board (Water Board) to expedite the processing of water transfers to enable the efficient use of water.
  • Instructing DWR and the Water Board to accelerate funding for water supply enhancement projects that are capable of breaking ground this year.
  • Directing the Water Board to place state water right holders on notice that they may be required to cease or reduce water diversions.
  • Requiring DWR to evaluate changing groundwater levels, land subsidence and agricultural land fallowing as the drought persists, and to provide a public update by April 30 to identify groundwater basins with water shortages.
  • Requiring the Governor’s Drought Task Force to develop a plan to provide emergency food, financial assistance and unemployment services in communities expected to suffer high levels of unemployment as a result of the drought.

Impact on the California Environmental Quality Act

The declaration suspended the California Environmental Quality Act (CEQA) from applying to the Water Board’s approval of petitions requesting water transfers and exchanges between users within the State Water Project and Federal Central Valley Project. The declaration also suspends CEQA from applying to Water Board decisions to modify reservoir release requirements or diversion limitations that were established to implement a water quality control plan.

In 2009, when Governor Schwarzenegger declared a statewide drought emergency, he also exempted water transfers from CEQA. The declaration was successfully challenged by environmental groups for its purported exemption from compliance with CEQA. Likewise, Brown’s declaration also attempts to suspend CEQA from applying to the State’s response to the drought. Therefore, we expect that the governor’s declaration may face similar legal challenges from environmental groups.

DWR and Water Board Actions  

On January 31, in response to Governor Brown’s drought declaration, DWR took several steps to protect the public from more severe water shortages should extreme drought conditions continue. Specifically, DWR announced that it would adjust the anticipated allocation of water to State Water Project customers from five percent to zero. DWR also announced that it would notify agricultural districts with long-standing water rights in the Sacramento Valley that they may be required to reduce water use by as much as 50 percent, dependent on snow surveys. Finally DWR announced that it submitted a formal petition to the Water Board to adjust water permit terms that control the State Water Project and the federal Central Valley Project in order to preserve dwindling supplies as the drought continues.

Subsequently, the Water Board announced that it approved DWR’s petition in an effort to preserve State Water Project and federal Central Valley Project water supplies in upstream reservoirs. Further, the Water Board announced that beginning in February, curtailment notices will be sent to “junior priority” water right holders requiring a reduced diversion of water from the Sacramento and San Joaquin Rivers.

Implications 

Although a formal challenge to the Governor’s drought declaration has yet to be filed, environmental groups have raised concerns over the suspension of CEQA. Nonetheless, the actions taken by DWR and the State Board in response to the drought declaration reflect the terms of the declaration itself and underscore the extreme circumstances brought on by California’s record drought.

Image courtesy of Flickr by junestag.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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