California Steps Up Water Conservation Measures, Stops Short of Statewide Mandate
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California Steps Up Water Conservation Measures, Stops Short of Statewide Mandate

Brownstein Client Alert, April 4, 2022

On March 28, 2022, Gov. Gavin Newsom signed Executive Order N-7-22, escalating prior water conservation efforts as the majority of California remains under “extreme drought” conditions. The executive order has significant implications for all businesses, individual water users, urban water suppliers and others.

How We Got Here

In 2021, California took several actions to encourage voluntary conservation against the backdrop of a looming water supply crisis.

The governor’s 2021-22 budget provided $5.2 billion over three years for immediate drought response and long-term water resilience needs.

In April and May 2021, Gov. Newsom issued proclamations that a state of emergency existed due to severe drought conditions in 41 of the state’s 58 counties. As drought conditions worsened through the summer and California withered under record-breaking temperatures, Gov. Newsom signed Executive Order N-10-21, which called on Californians to voluntarily reduce water use by 15% compared to 2020 levels and expanded the state of drought emergency to include nine additional counties. While Executive Order N-10-21 fell short of a statewide water conservation mandate, it set the stage for future administrative action.

In October, 2021, Gov. Newsom expanded the emergency proclamation to apply statewide. The proclamation also authorized the State Water Resources Control Board (“State Water Board”) to adopt regulations to prohibit certain wasteful water use practices. These regulations were adopted on Jan. 18, 2022.

According to the Department of Water Resources (DWR), the water year that ended Sept. 30, 2021, was the second driest on record. After two dry years, reservoir storage is below 2019 levels. Although December 2021 brought substantial rain and snowfall, insufficient precipitation in early 2022, including the driest January and February in recorded history, has left California in “extreme and expanding” drought conditions for the remainder of the water year.

Executive Order N-7-22

On March 28, 2022, Gov. Newsom signed Executive Order N-7-22, which takes effect immediately, to prepare for and mitigate the effects of the ongoing drought. Although the order once again stops short of a statewide water conservation mandate, the order goes beyond the emergency measures adopted during the last drought in 2013‒20171 and has significant implications as outlined below.

For Businesses and Water Users:

  • Directs the State Water Board by May 25, 2022, to consider adopting emergency regulations defining “non-functional turf” and banning irrigation of non-functional turf in the commercial, industrial and institutional sectors
  • In communities threatened by loss of affordable safe drinking water, suspends any ordinance, regulation, prohibition, policy or requirement of any kind that prohibits the hauling of water by truck or bottle out of the basin of origin, if the water is for human consumption, cooking or sanitization

For Urban Water Suppliers:

  • Directs the State Water Board by May 25, 2022, to consider adopting emergency regulations related to water supply and demand needs assessments, as well as water shortage contingency plans
  • Encourages urban water suppliers to conserve more than required by emergency regulations and to voluntarily activate more stringent local requirements based on a shortage level up to 30%

For Surface Water Right Holders:

  • Directs the State Water Board to expeditiously consider change petitions that add a fish and wildlife beneficial use or point of diversion
  • Directs the State Water Board to expand inspections to determine whether illegal diversions or wasteful or unreasonable uses of water are occurring and bring enforcement actions against illegal diverters and those practicing wasteful and/or unreasonable uses of water

For Groundwater Users:

  • Prohibits a city, county or other public agency from approving a new permit for a groundwater well or alteration of an existing well in a basin designated as medium- or high-priority under the Sustainable Groundwater Management Act (SGMA), without obtaining written verification from the groundwater sustainability agency in the area/basin that extraction from the proposed well would not be inconsistent with an adopted groundwater sustainability plan and would not decrease the likelihood of achieving a sustainability goal
  • Prohibits a city, county or other public agency from issuing a permit for a new groundwater well or alteration of an existing well without a determination that it will not interfere with production and function of nearby wells and that it is not likely to cause subsidence that would impact nearby infrastructure
  • These well permitting rules do not apply to de minimis domestic well users or to groundwater wells for public water supply systems

Resiliency Measures

  • Directs DWR to investigate expedited regulatory pathways for the repair or reconstruction of small community and public supply wells
  • Directs the State Water Board and Regional Water Quality Control Boards to accelerate approval for groundwater recharge and storage projects
  • Directs DWR to prepare for the potential creation and implementation of a multiyear transfer program pilot project to store and convey water to areas of need
  • Directs state agencies to submit proposals to mitigate worsening effects of drought including wastewater recycling, groundwater recharge and water use efficiency

Key Takeaways

Despite the lack of mandatory statewide cutbacks to urban water use, Executive Order N-7-22 nonetheless has significant impacts for water users across the agricultural, commercial, industrial and residential sectors.

The order is particularly notable in its implications for groundwater users statewide and the expanded role of well permitting agencies (e.g., cities and counties) and groundwater sustainability agencies. The expanded powers granted by Executive Order N-7-22 are self-executing and are not subject to further rulemaking, requiring public agencies and water users alike to adapt immediately to the changed regulatory landscape, but without funding. In 2014, the legislature adopted a framework (SGMA) to ensure that groundwater use would be sustainably managed, but locally. These new rules mandate a statewide approach, without regard to whether the basin in question is being managed sustainably, and necessarily will make the process of obtaining a well permit, even a replacement well permit, more complicated and more expensive. Further, the enhanced discretion afforded well permitting agencies will subject their decisions to litigation.

While Executive Order N-7-22 is an emergency measure and therefore remains in effect only for the duration of the declared emergency, it portends significant new statewide regulation of water users in the future, seemingly in conflict with the stated purpose of SGMA. For example, there is also a pending legislative proposal, Assembly Bill 2201 (Bennett), that includes similar measures—it proposes a state mandate to permanently restrict the issuance of well permits to groundwater users in critically over-drafted basins. It remains to be seen whether any of the well permitting and groundwater extraction policies in Executive Order N-7-22 morph into permanent rules that outlast the end of the current drought crisis, as may be deemed necessary to respond to a changing climate, shifting precipitation patterns and water scarcity.

1 Researchers consider the period since 2000 a megadrought—the driest two decades in at least 1,200 years.

This document is intended to provide you with general information regarding California Executive Order N-7-22. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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