April 2, 2015 -- Client Alert
In July 2014, the State Water Resources Control Board (“State Water Board”) adopted emergency regulations that prohibited all individuals from engaging in certain water use practices and required mandatory conservation-related actions of public water suppliers during the current drought emergency. The regulations became effective July 28, 2014, and were set to expire on April 25, 2015, absent further action by the State Water Board. On March 17, 2015, the State Water Board amended and re-adopted the regulations. The amended regulations require public water suppliers to take additional conservation-related actions, and extend the effective date of the regulations to December 22, 2015. The amended regulations were approved by the Office of Administrative Law and became effective on March 27, 2015.
On April 1, 2015, Governor Jerry Brown issued an Executive Order to address the continuing conditions of severe drought statewide. The Executive Order requires the State Water Board to take several conservation-related actions that may affect local public entities, including:
- Imposing restrictions requiring water suppliers to California’s cities and towns to reduce potable water usage by 25% as compared to usage in 2013;
- Prohibiting irrigation of ornamental turf on public street medians with potable water;
- Directing urban water suppliers to develop rate structures, including surcharges, fees, and penalties, to maximize water conservation ; and
- Permanently requiring urban water suppliers to provide monthly information on water usage, conservation, and enforcement.
In light of Governor Brown’s Executive Order, it appears likely the State Water Board will adopt additional emergency regulations and again amend its existing emergency regulations.
The Executive Order contains additional directives to the State Water Board and several other State agencies that, while not necessarily affecting the State Water Board’s emergency regulations, may nonetheless have an impact on local public entities. These additional directives include:
- Requiring the State Water Board to prohibit irrigation with potable water outside of newly constructed homes and buildings that is not delivered by drip or microspray systems;
- Requiring the California Department of Water Resources (“the Department”) to partner with local agencies to replace 50 million square feet of lawns and ornamental turf with drought tolerant landscapes;
- Requiring the Department to update the State Model Water Efficient Landscape Ordinance with increased water efficiency standards through more efficient irrigation systems, greywater usage, onsite stormwater capture, and by limiting turf;
- Requiring local water agencies in high and medium priority groundwater basins to immediately implement all requirements of the California Statewide Groundwater Elevation Monitoring Program, and empowering the Department to refer noncompliant local water agencies to the Water Board;
- Mandating state permitting agencies to prioritize review and approval of water infrastructure projects and programs that increase local water supplies such as water recycling facilities, surface water treatment plants, desalination plants, and stormwater capture systems; and
- Requiring the Department to immediately consider crop idling or water exchange proposals of one year or less in duration that are initiated by local public agencies and approved in 2015 by the Department.
The full text of Governor Brown’s Executive Order is available here: http://gov.ca.gov/docs/4.1.15_Executive_Order.pdf
 Tiered rate structures are subject to independent Proposition 218 and Proposition 26 restrictions, which are currently at issue in Capistrano Taxpayers Association v. City of San Juan Capistrano, an appellate case pending in the California Court of Appeal for the Fourth District (Case No. G048969).
For further information, please contact June Ailin, Lindsay M. Tabaian, Miles P. Hogan, or Christina M. Burrows from Aleshire & Wynder's Water Practice Group at (949) 223-1170.
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Please seek legal advice before acting or relying upon any information in this communication.