Governor’s Drought Executive Order Will Impact Local Agency Water Suppliers and Water Users (and Lawns)

On April 2, Governor Brown issued the third and most significant in a series of Executive Orders addressing the ongoing drought. They followed his 2014 proclamation of a State of Emergency resulting from drought conditions. The Executive Orders direct various state agencies to implement various actions. They also suspend laws and regulations, using the Governor’s statutory authority to do so where the law or regulation will hinder the State’s ability to cope with the emergency. The Executive Order mandates water conservation measures that many agencies are already pursuing and provides opportunities for streamlined approvals and funding. It specifically aims at eliminating the irrigation of laws and ornamental turf. Outdoor irrigation of turf with potable water is particularly targeted in the Order, and many areas of green grass may be a thing of the past.

Many of the directives will have the greatest initial impact on local agencies that are water purveyors. For example, the Order directs the State Water Resources Control Board (Water Board) to implement mandatory statewide 25% reduction in urban potable water use versus 2013 usage. [Directive 2.] It also requires the Water Board to direct urban water suppliers to develop rate structures to maximize water conservation. [Directive 8.] There are a number of directives related to agricultural water use as well. [Directives 12–14.]

The Order’s Directives will also impact public agencies that are not water purveyors. For example:

• Local agencies will likely face usage restrictions once the Water Board adopts regulations to reduce urban potable water usage by 25% statewide versus 2013 usage. Those restrictions will be more pronounced in areas where the per-capita water usage is relatively higher, since the directive requires the Water Board to require “proportionally greater reductions” in those areas. [Directive 2.]
• Local agencies will be asked to partner in a Department of Water Resources initiative to replace 50,000,000 square feet of lawns with drought tolerant landscapes. [Directive 3.]
• Local agencies that operate institutional facilities, such as campuses, golf courses, and cemeteries, are likely to face requirements to adopt efficiency measures designed to reduce usages by 25% versus 2013 usage. [Directive 5.]
• Local agencies will be prohibited from using potable water to irrigate “ornamental turf on public street medians.” [Directive 6.]
• Land use agencies will potentially be involved in implementing the Water Board’s regulations prohibiting “irrigation with potable water outside of newly constructed homes and buildings that is not delivered by drip or microspray systems.” [Directive 7.] This directive appears intended to make lawns a thing of the past, though it may be technically possible to irrigate turf using the identified technologies. The Water Board will likely clarify some ambiguity in the directive since it is not clear what will qualify as “newly constructed.” It is also not clear whether the regulations will apply directly to merchant builders or will be implemented by local land use agencies. To the extent local agencies themselves are undertaking new construction, they will be affected by this prohibition like other builders.
• Local agencies are likely to be required to consider updating their Water Efficient Landscaping Ordinance. The Order directs the Department of Water Resources (DWR) to update its model ordinance. [Directive 11.] The exact mechanics of how this directive will play out is unclear. Local agencies were required by January 1, 2010 to either adopt the model ordinance or adopt their own ordinance that was “at least as effective” as the model ordinance. (Gov. Code, § 65595, subd. (d).) That time has passed. So, if the state revises the model ordinance, local agencies will have no obligation to adopt the model ordinance. DWR should address these issues in its regulations.

Notably, all of the local agency actions referenced above (and many others) will be exempted from CEQA, so long as the applicable state agency finds that the actions are required to implement the directives. [Directive 26.]