Why New California Drought Regulations Have Caused an Uproar
Dozens of local water agencies are opposing state regulations to ban wasteful water practices, partly due to issues relating to the water board’s authority.
The regulations would make permanent some rules California enacted temporarily during the recent drought, which ended last year.
“The regulation is defective because it has the effect – if not the purpose – of diminishing water rights by legislative means, without any process whatsoever.” But the issue also appears to go beyond the fight over this set of regulations and centers on the water board’s authority and a disagreement over state versus local control of water policy.
The Regulations The proposed regulations prohibit such actions as hosing off driveways and sidewalks, watering that causes more than incidental runoff, operating decorative fountains that don’t recirculate water and watering ornamental public medians.
Gomberg said that he doesn’t expect major statewide impacts to water savings relative to other conservation measures, but “what it does is really help raise awareness of the need for conservation and efficiency at all times because of the way the state’s hydrology is changing,” he said.
“This is not a wholesale new statewide set of prohibitions, it’s taking a patchwork that was in place locally and making it uniform,” said Gomberg.
He said his clients are “concerned with this narrow issue of water rights and due process with the waste and unreasonable use approach to the regulation.” However, Donlan said that the groups that he has been working with support the concept of the regulation and the conservation measures that are in the regulation, but the concern is really around that narrow issue of the appropriate process to ground the regulation.
Jennifer Harder, an assistant professor at the McGeorge School of Law at the University of the Pacific and an expert in water law, thinks that in this particular situation the water board is operating within its rights and that “the water rights argument isn’t very strong in this case.” She said, “Although there are circumstances where questions can be legitimately asked about actions that the water board is taking with respect to conservation, and there are some circumstances in which local action might be wisest, my opinion is that this particular resolution prohibiting wasteful uses is an easy case.” One of the main reasons, she explained, is that the regulation focuses on egregious waste and “a prohibition on waste is one of the fundamental principles of all water rights since the beginning of water rights,” she said.
“The real problem here is that they have a fear that if the water board is going to take this action, that it may be an opening salvo to more actions,” said Harder.
Also at issue, believes Gomberg, is a state versus local power struggle.