On April 1, 2015, California Governor Jerry Brown issued Executive Order B-29-15 [PDF] (“EO”), which mandates gargantuan water-use restrictions throughout the State and which will remain in effect through February 28, 2016. The EO is a response to the severe and unrelenting drought that threatens California’s livelihood. Though many hope the mandate will help reverse California’s dire water shortage, it may just place a drop in the bucket. However, the legal framework it establishes could produce lasting effects in the state by incentivizing water reductions and innovation.
California uses a vast amount of water; in fact, the US Geological Survey recognized that California uses more water than any other state. Californians use an average of 181 gallons each per day, though levels of personal use vary greatly throughout the state. Residential use is Pacific Institute, agricultural water use accounts for about 80 percent of the state’s use [PDF], though a Reuters fact sheet notes that the agricultural industry contends the number is lower, between 40 and 60 percent.
In either event, the amount of agricultural water use is far larger than personal use. There have been a flurry of articles since the EO was issued condemning California almond farming, all of which claim that California supplies over half the country’s fruit, nuts and vegetables and exports massive quantities overseas. Farming is an essential part of California’s economy, and the state must therefore consider any economic impact water-use restrictions could have on the industry.
The backdrop of California’s water usage informs a discussion of the drought. California’s drought has wreaked havoc on the state for nearly four years, depleting the state’s annually.
In a response to surface water allocation, the agricultural industry has been forced to find other methods of obtaining water and has turned to pumping groundwater, which only exacerbates the state’s problems. Famiglietti notes that in some areas of the Central Valley where groundwater pumping is commonplace, land has been sinking by “one foot or more per year.” By now, anyone familiar with the issue has seen myriad images of almost-empty lakes and rivers or cracked and parched land.
As a remedy, Famiglietti suggested immediate and mandatory water rationing, formation of regional water agencies and task forces and the passage of new water laws. At the time of the article’s publication, he noted that 94 percent of Californians surveyed believed the drought was serious, and one third surveyed believed water rationing was necessary. It is hard to imagine that those numbers have decreased.
Faced with these problems, Brown issued the EO, which began by addressing the state’s depleted water supply. The EO was invoked pursuant to Brown’s authority during a statewide emergency, and invoked the governor’s power to suspend other laws—including portions of the California Public Resources Code—in order to
015/04/06/governor-brown-announces-new-mandate-in-face-of-drought/”> those regulations. From the face of the EO, however, it is impossible to tell what kind of reductions will occur or how burdensome they will be on Californians.
But other provisions of EO are apparent with respect to their burden on Californians. Interestingly—and possibly in response to the high water usage for landscaping purposes—the EO vests authority in the Department of Water Resources and local agencies to replace 50 million square feet of lawns with ornamental turf. It also forces the Water Board to impose restrictions on commercial water use in places like golf courses and cemeteries, and prohibits the use of “potable water of ornamental turf on public street medians.” These provisions are guaranteed to elicit backlash, though they are by no means novel. During an earlier California drought, Santa Barbara citizens began painting their brown lawns green in response to water-use restrictions for lawns.
The EO’s enforcement mechanisms are equally controversial. The EO mandates the Water Board to require urban suppliers to engage in monthly reporting and bring enforcement actions against illegal diverters or people who engage in “wasteful or unreasonable uses of water.” It also mandates new regulations for water-efficiency standards and creating drought management plans for large agricultural water suppliers. Depending on how state agencies and local utilities choose to restrict water use, this could mean residents might face penalties for overuse.
Not all of the EO’s means operate harshly. For one, it mandates investment in new water technologies, requiring the Department of Water Resources and California Energy Commission to create a Water Energy Technology program (ironically called “WET”), to achieve not only greater water savings, but also energy savings and greenhouse-gas reductions. The EO suggests use of, among other things, water-use monitoring software, irrigation technology and even desalination efforts.
Interestingly, the city of Santa Barbara had already built a water-desalination plant during an earlier drought, but it was never used, partly because the drought ended in heavy rainfall shortly before the plant became operational, and partly because of other environmental concerns with the wastewater product of desalination. The city is currently working on reopening the plant in response to the drought. Efforts like this may prove successful, and pursuant to the EO’s investment mandate, could spur similar investment across the state.
In short, the EO contains many controversial mandates that have been and will be scrutinized from every angle. As some commentators have noted, the heaviest burden—and what will determine whether the EO will be successful—lies in the hands of local utilities. Local utilities can use 25-percent-reduction mandate to justify personal reduction of 25 percent. Alternatively they can implement a tiered system that will impose on larger urban users a water use reduction requirement greater than the reduction requirement with respect to citizens. Finally they can do anything in between these two options. With so much discretion and such little time in which to operate, there can be an undesirable outcome.
Another critique of the EO is that it does not impose direct water-use restrictions on agriculture. As one commentator noted,
“the order mostly applies to residential and urban water use that accounts for 15 percent of the state’s total water budget. By contrast, agriculture consumes a hefty 80 percent of water used by people; yet Brown’s mandates place little burden—and no new restrictions on agriculture.”
The Board has agreed that it will impose restrictions on agriculture, but as of now it is impossible to tell what those restrictions will be and whether they will be significant. And as mentioned above, restrictions on agricultural water could create many problems. Restrictions could cause farmers to seek out more groundwater. Or, they could threatened California’s agricultural economy.
Other criticisms have gone beyond the EO. There have been many arguments over boycotting various forms of California agriculture, especially almonds. Some have even suggested dropping almonds and meat in favor of farming crickets for food. Others have vocally opposed even seemingly beneficial environmental efforts like efficient appliances. Therefore, it provides tangible incentives for personal reductions of water use.
The EO will almost certainly face legal challenges, even though it is only effective for less than one year. Though in that time, Californians are likely to face reductions, if the mandate is even partially successful, future Californians will see a benefit.
Griffen Thorne earned a B.A. in Music from the University of California, Berkeley. He is currently the Editor-in-Chief of the Loyola University Chicago Law Review.
Suggested citation: Griffen Thorne, California’s water restriction and its beneficial incentives, JURIST – Student Commentary, April. 21, 2015, http://jurist.org/student ]/2010/09/Griffen-Thorne-water-use.php.
This article was prepared for publication by Marisa Rodrigues, a Staff Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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