Governor Brown Orders California’s First Mandatory Water Restrictions

by Latham & Watkins LLP
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On Wednesday April 1, 2015, in the wake of the state’s four-year drought and a winter that brought record-low snowfalls, Governor Brown issued an executive order mandating statewide water use restrictions for the first time in California’s history (the “Executive Order”).  The Executive Order follows on the heels of state legislation signed by the Governor on March 27, which appropriated approximately $1 billion for water projects including emergency drought relief.

Governor Brown announced the Executive Order from a snow-bare Phillips Station in the Sierra Nevada mountains, in his words, “standing on dry grass where there should be five feet of snow.”  The same day, state regulators announced that the state’s snowpack was only at five percent of normal, presaging a very small amount of spring snowmelt that Californians rely upon to replenish their reservoirs.  This January reportedly was the driest January in California since recordkeeping began in 1895.

To address the ongoing drought, the Executive Order primarily aims to: (1) conserve water and (2) increase enforcement against waste throughout the state.

Mandatory Water Use Restrictions

Governor Brown’s announcement builds upon recent emergency water conservation regulations, which the State Water Resources Control Board (“SWRCB”) renewed and updated several weeks ago on March 17, 2015.  The emergency water conservation regulations prohibit excessive outdoor water use and, among other things, require urban water suppliers to implement water shortage contingency plans.  The Executive Order directs SWRCB to implement mandatory statewide water restrictions to reduce potable urban water use by 25% through February 28, 2016.  These restrictions will obligate California municipal water suppliers to reduce usage as compared to 2013 levels.  Additionally, the restrictions will require areas with high per capita use to achieve proportionally greater reductions than those areas with lower uses.  The Executive Order also directs the California Public Utilities Commission to require investor-owned utilities providing water services to implement similar restrictions.  To help achieve these objectives, the Executive Order will instate the following conservation measures:

  • The California Department of Water Resources (“DWR”), in conjunction with local agencies, shall implement a program to replace 50 million square feet of lawns and ornamental turf with drought-tolerant landscaping;
  • The California Energy Commission, DWR and SWRCB shall implement a temporary statewide consumer rebate program to replace inefficient household appliances;
  • SWRCB shall implement water use restrictions on commercial, industrial, and institutional properties, requiring campuses, golf courses, cemeteries and other large landscapes to make significant cuts in water use;
  • SWRCB will prohibit the use of potable water for irrigating at new homes and developments, unless efficient irrigation systems are used, and will prohibit watering ornamental grass on public street medians; and
  • Urban water suppliers must develop and implement rate structures and other conservation pricing to maximize water reductions and discourage water waste. The Executive Order includes measures intended to monitor certain water users and prevent wasteful practices. The Executive Order adds additional scrutiny to agricultural water users, who already have faced significantly reduced water allocations. Under the Executive Order, agricultural users must provide more frequent water use information to SWRCB, which will increase the state’s ability to prevent illegal diversions, waste and unreasonable use. Additionally, the Executive Order requires local water agencies located in high- and medium-priority groundwater basins to implement the California Statewide Groundwater Elevation Monitoring Program, which mandates statewide groundwater elevation monitoring to track seasonal and long-term trends in groundwater elevations. DWR and SWRCB are tasked with monitoring these local agencies to promote appropriate enforcement and compliance. SWRCB is expected to develop emergency regulations to implement the Executive Order in the coming weeks. Following a public hearing, SWRCB may approve the regulations by early May. These conservation measures, coupled with last week’s $1 billion water package, should reduce water use, provide some emergency relief, and avoid an outright moratorium for the most wasteful uses. If the drought persists, Californians, and likely residents of other western states, may see further mandatory water conservation actions.

Waste Prevention and Monitoring

The Executive Order includes measures intended to monitor certain water users and prevent wasteful practices.  The Executive Order adds additional scrutiny to agricultural water users, who already have faced significantly reduced water allocations.  Under the Executive Order, agricultural users must provide more frequent water use information to SWRCB, which will increase the state’s ability to prevent illegal diversions, waste and unreasonable use.  Additionally, the Executive Order requires local water agencies located in high- and medium-priority groundwater basins to implement the California Statewide Groundwater Elevation Monitoring Program, which mandates statewide groundwater elevation monitoring to track seasonal and long-term trends in groundwater elevations.  DWR and SWRCB are tasked with monitoring these local agencies to promote appropriate enforcement and compliance.

Next Steps

SWRCB is expected to develop emergency regulations to implement the Executive Order in the coming weeks.  Following a public hearing, SWRCB may approve the regulations by early May.  These conservation measures, coupled with last week’s $1 billion water package, should reduce water use, provide some emergency relief, and avoid an outright moratorium for the most wasteful uses.  If the drought persists, Californians, and likely residents of other western states, may see further mandatory water conservation actions.

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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