The Historic Drought Has Killed Your Lawn, Will It Do The Same To The Construction Industry?

by Haight Brown & Bonesteel LLP

After three years of a historic drought, Californians are now subject to mandatory water rationing, bans on washing cars, and water “only on request” at restaurants. In 2015, California saw a number of new laws, regulations and executive orders to further cut back on the State’s water use.

The first, and most important, was Governor Brown’s Executive Order B-29-15, signed on April 1, 2015. The Executive Order called for a 25% reduction in urban water consumption. The Order also required the replacement of 50 million square feet of lawns throughout the state with drought tolerant landscaping in partnership with local governments, directed the creation of a temporary, statewide consumer rebate program to replace old appliances with more water and energy efficient models, required campuses, golf courses, cemeteries and other large landscapes to make significant cuts in water use, prohibited new homes and developments from irrigating with potable water unless water-efficient drip irrigation systems are used, and banned the watering of ornamental grass on public street medians. According to the Governor’s office, the new restrictions will result in “[savings of] approximately 1.5 million acre-feet of water over the next nine months, or nearly as much as is currently in Lake Oroville.”

Governor Brown’s Executive Order was followed up by Assembly Bill 1, which amended California Government Code section 8627.7. Assembly Bill 1 was signed into law by the Governor on July 13, 2015, and prohibits cities and counties from imposing a fine under any local maintenance ordinance or other relevant ordinance on homeowners who choose to stop watering their lawns. The bill was intended to address, and outlaw, local government regulations, such as those in the City of Glendora which threatened homeowners with fines of up to $500 if they failed to “keep landscaping looking healthy and green.” Section 8627.7 voids and supersedes such regulations.

While Assembly Bill 1 was intended to void government regulations on watering lawns, Assembly Bill 349 was aimed at homeowner’s associations and neighborhood groups which enact landscaping regulations. AB 349 amended California Civil Code section 4735 and expanded existing regulations prohibiting homeowner’s associations from requiring homeowners to maintain high water use landscaping, such as lawns. The amendment now expressly allows a homeowner to replace lawns with drought-resistant plants and, for the first time, even synthetic turf.

Both Assembly bills have significant impacts on housing developers. Master planned communities can no longer mandate “green lawns” nor can they prohibit a homeowner from swapping out high water use landscaping with drought tolerant plants or synthetic turf. In addition, fines or assessments against homeowners for failure to employ a ‘high water use’ landscape design, as found in many current master development plans, are no longer enforceable, unless the landscape plan uses recycled water.

While the Governor and the Legislature have been extremely proactive in proposing new water restriction measures, neither have proposed limiting construction of new homes. In part this can be attributed to findings, including a recent research report commissioned by the California Building Industry Association, that new homes in California can save 46,500 gallons of water a year – nearly 50% – compared with those built before 1980. The report also noted that building 100,000 new homes in California creates 209,000 jobs, and pumps $38 billion into the state’s economy.

Even with the likely El Nino winter, it is likely the drought’s affects will continue for some time. Additional measures will need to be implemented to address both the short term and long term water needs of the State. California’s two senators have submitted an omnibus piece of legislation in the U.S. Senate to help small communities hit the hardest by the drought. It is aimed at ensuring water continues to flow to these communities while still protecting agro business. The bill is advancing through the U.S. Senate, though its passage is not assured. If the bill does become law, it would likely be effective in mid to late 2016.

A more localized effort is being suggested by the building industry. The CBIA on behalf of its members, is suggesting that new homes be built with low flow faucets, dual-flush toilets, shower heads with a maximum flow rate of 2 gallons per minute, drought-resistant landscaping, and the increased use of artificial turf. These proposals along with new building regulations will substantially reduce the amount of water used by homeowners. The CBIA has also published a number of measures for retrofitting existing homes.

The concerted effort by the Governor, the Legislature and the homebuilding industry in responding to the most severe drought in recorded history have resulted in a substantial reduction in the State’s water usage, while, at least at this point, not significantly affecting the State’s economy. While El Nino holds promise of easing the immediate concerns, it will be the long term impact of recently passed legislation and voluntary measures that will assure the State’s future as one of the largest economies in the world.

This article is part of the Haight Brown & Bonesteel "Top Ten Stories in California Construction Law" Series.

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Haight Brown & Bonesteel LLP

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