The California Drought and Regulatory Efforts to Conserve Water

California is currently in the midst of the most severe drought in its recorded history, and 2014 has been the worst year thus far.[i] Currently, 41.2% of California is in a state of “exceptional drought”according to the National Drought Mitigation Center.[ii] Climatologists estimate that precipitation would have to be 150% of the average for a full year to potentially alleviate the drought within a year.[iii]  Approximately 37 million people are affected by the drought, and it has resulted in many ecological and environmental impacts. The drought has also affected California’s large agricultural industry, costing the state an estimated $2.2 billion in losses and expenses.[iv]

The severe drought has given rise to numerous legislative efforts to regulate water consumption. Among those efforts are the emergency conservation regulations enacted through California Governor Edmund G. Brown’s executive order, and AB-1739, California’s first groundwater regulatory bill.[v] In January 2014, Governor Brown declared a state of emergency in response to the severe drought conditions. This was followed by the enactment of emergency regulations, which went into effect on July 29, 2014.[vi]

The emergency regulations primarily target outdoor water usage. Individuals are strictly prohibited from using water on sidewalks or driveways, watering landscapes in a wasteful manner, washing cars without an appropriate hose, and using non-recirculated water in water fountains.[vii] Violations of these regulations can result in fines of up to $500.[viii] Additionally, water suppliers are required to formulate contingency plans and report monthly water production and usage.[ix]  The executive order gives local agencies authority to enforce the regulations.[x]

While the emergency measures could be successful in curbing some of the most wasteful water practices, their success will be highly dependent on how these regulations are enforced. Under the current system, the regulations can be enforced by any law enforcement agency or peacekeeping officer if the agency has been given a mandate to do so.[xi] One issue is that the consequences for violating the order have not been defined in a universal manner. While violators can be fined up to $500, there is no universally established fine for a particular type of violation in the proposed text of the regulations.[xii] The legislation might be more successful if it were to delineate specific punitive measures and apply them universally across all communities in California. This would also ensure that an individual is not punished by two separate agencies for the same violation.

The emergency regulations have resulted in some discord amongst politicians. Some called the “regulations ‘heavy handed’government overreach, while others argu[ed] that the emergency measures [do not] go far enough.”[xiii] Either way, given that the emergency regulations are temporary, the California legislature will have to enact more permanent means of water conservation.

In August 2014, the California Assembly passed AB-1739 and the California Senate passed SB-1168 and SB-1319 to create a framework for long-term groundwater management in California as an additional avenue for drought management.[xiv] Groundwater is susceptible to “overdraft,” which occurs when water removals surpass deposits, particularly during periods of draught.[xv] Overdrafting has a myriad of negative consequences including increased costs of retrieving water, land subsidence, and reduced water quality.[xvi] These three bills set out a timeline for groundwater conservation. Groundwater agencies must be identified by 2017, overdrafted basins must create sustainability plans by 2020, and groundwater basins with high and medium priority must achieve sustainability by 2040.[xvii] In addition to these overall milestones, the bills create various intermediate steps for agencies and governments at the local and state level.[xviii] The bill also establishes roles for California Department of Water Resources and the State Water Resources Control Board.

While the groundwater bills are an important step towards engendering sustainable water use, there are some concerns with the laws. First, the effects of the legislation will not be felt for many decades because the timeline of implementation stretches far into the future.[xix] Second, many farmers stand in opposition to the bills, arguing that they may hinder food production primarily because they may face water shortages.[xx] Prior to the regulations, groundwater could be withdrawn for free.[xxi] However, due to the regulations, farmers will have to meter the pumped water or stop pumping it, thereby resulting in a “downsizing of California agriculture.”[xxii]

For the groundwater management efforts to be successful, it is necessary to have “integrated water management.”[xxiii] Such an approach would require improvements in water recycling, efficiency of water use, and water storage.[xxiv] However, the agency structure that the bills set out will force all levels of governance to be held accountable. Local and state agencies will have to work together to set guidelines and meet the requisite goals.[xxv]

California’s two-prong approach to remedy the effects caused by the drought is relatively new and its success remains uncertain. The emergency regulations have resulted in some benefits. The State Water Resource Control Board reported that, “the statewide urban water conservation rate climbed 22 percent in December. . . [and] total water use by individual Californians continued to decline in December [2014].”[xxvi] This was the first reduction in water usage since the enactment of the emergency regulations. Similarly, even though the groundwater management bills focus on long-term water conservation efforts, they will create short-term benefits in the form of accountability, increased rule making at the local level, and improvements in other areas of water management.

 

-Trisha Parikh is a General Member on MJEAL. She can be reached at tsparikh@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] California Department of Water Resources, Water Conditions: Storms, Drought, and California’s Water Situation: Key Points, http://www.water.ca.gov/waterconditions/waterconditions.cfm (last visited Mar. 8, 2015).

[ii] United States Drought Monitor, U.S. Drought Monitor: California, http://droughtmonitor.unl.edu/Home/StateDroughtMonitor.aspx?CA (last updated Mar. 3, 2015).

[iii] Supra note i.

[iv] Jim Carlton, California Drought Will Cost $2.2 Billion in Agriculture Losses This Year, Wall Street Journal, July 15, 2014, http://www.wsj.com/articles/drought-will-cost-california-2-2-billion-in-losses-costs-this-year-1405452120.

[v] Office of Governor Edmund G. Brown Jr., Governor Brown Signs Historic Groundwater Legislation, (Sept. 6, 2014), http://www.gov.ca.gov/news.php?id=1870.1

[vi] California Water Boards, Fact Sheet: Mandatory Water Conservation Regulation Go Into Effect, http://www.swrcb.ca.gov/publications_forms/publications/factsheets/docs/fs072914manwaterreg.pdf (last updated July 29, 2014).

[vii] Supra note vi.

[viii] Supra note iv.

[ix] Supra note vi.

[x] California State Water Resources Control Board Res. 2014-0038 (2014).

[xi] Supra note vi.

[xii] Supra note x.

[xiii] Katy Steinmetz, California Imposes Unprecedented Water Conservation Rules, TIME, July 15, 2014, http://time.com/2990069/california-drought-regulations/.

[xiv] Office of Governor Edmund G. Brown Jr., Governor Brown Signs Historic Groundwater Legislation, (Sept. 6, 2014), http://www.gov.ca.gov/news.php?id=1870.1

[xv] California Water Foundation, Recommendations for Sustainable Groundwater Management: Developed Through a Stakeholder Dialogue, 1 (2014), http://www.californiawaterfoundation.org/uploads/1399077265-GroundwaterReport-5-2014%2800249329xA1C15%29.pdf.

[xvi] Id.

[xvii] Supra note xiv.

[xviii] Nell Green Nylen, California’s New Groundwater Law: An Interactive Timeline, LegalPlanet (Oct. 8, 2014), http://legal-planet.org/2014/10/08/californias-new-groundwater-law-an-interactive-timeline/.

[xix] Id.

[xx] Melanie Mason, Gov. Jerry Brown Signs Historic Groundwater Management Regulation, Los Angeles Times, Sept. 16, 2014, http://www.latimes.com/local/political/la-me-pc-groundwater-regulation-bills-20140916-story.html.

[xxi] JessicaCalefati, Sweeping New California Groundwater Pumping Rules Signed Into Law by Gov. Jerry Brown, San Jose Mercury News, Sept. 16, 2014, http://www.mercurynews.com/california/ci_26547666/sweeping-new-california-groundwater-pumping-rules-signed-into.

[xxii] Id.

[xxiii] Supra note xv at 11.

[xxiv] Id.

[xxv] Supra note xviii.

[xxvi] California Drought, Urban Water Conservation Drops From 22 Percent to Near 9 Percent in January, Feb. 3, 2015, http://ca.gov/drought/.

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