El Niño or Not, Water Use Restrictions Likely to Continue
The state has seemingly broad powers to dictate water policy and, despite predictions of a wet winter, appears likely to use those powers when current cuts expire.
If the drought continues, state officials have broad powers to order even steeper water restrictions, perhaps including rationing.
This spring, Gov. Jerry Brown ordered urban water users to reduce their demand by an average of 25 percent. Those restrictions expire in February, but limits on water use seem certain to continue past then – even if it rains a lot this winter because of El Niño.
Right now, San Diego has more water available than its water agencies are allowed to sell, so local officials are arguing for the state to loosen the current restrictions. They are keen to know if Californians can quit saving so much water if “more normal” rainfall and snowfall return.
But the State Water Resources Control Board is beginning work on new regulations because it does not expect El Niño to end the drought. These new rules could be anything, including almost exactly what we have now to something stronger. How much stronger that might be, the state board has not said. That’s in part because nobody knows how much rain and snow will fall this winter and in part because the state is trying to limit negotiations to a small group of people.
State officials are empowered to prevent “the waste or unreasonable use” of water, according to a 1928 amendment to the state Constitution.
“If you’re in the worst drought in recorded history, as we are now, it’s pretty hard to argue that conservation is unreasonable,” said John Leshy, a professor emeritus at UC Hastings College of Law who specializes in water law.
Leshy said the government has two major limits on its powers over water use. First, the state’s mandates can’t be arbitrary.
Second is the practical limit of acceptable politics. The governor can’t, politically speaking, tell people to stop giving water to their pets or keeping fish.
What is “unreasonable” is also subject to change, the state Supreme Court said in a 1935 ruling that prohibited the use of water by farmers simply to drown gophers and squirrels. (That case lasted 18 years, believe it or not, and generated a paper trail of nearly 30,000 pages.)
If the state decides to go further, how much further will depend on the drought.
“Let’s not take our eye off the ball, there’s a drought on and we don’t know when it’s going to end,” said Ed Osann, a senior policy analyst at the Natural Resources Defense Council.
The state Water Board has repeatedly said it’s better to be safe than sorry.
Rationing is a word that seems touchy. A spokesman for the Water Board said the state could move from its current restrictions “to something closer to specific conservation targets” but declined to elaborate on what those might be.
In the near future, though, Osann expects the Water Board to follow its current path, which depends more on soft power than hard limits on individual water use. Right now, the board is mandating an average water savings of 25 percent among urban water users. But the board has left it up to the local water agencies across California to figure out how to achieve those targets using various types of carrots and sticks.
During previous droughts – the 1976-1977 drought and the 1987-1992 drought – local agencies with the most unstable water supplies imposed rationing in their service areas, but the state did not order anything like that statewide. Never before has the state’s government imposed such limits as those Brown ordered this year – still, those state regulations fell sort of telling each Californian exactly how much water he or she is allowed to use.
The city of San Diego, for instance, has to cut per capita use by 16 percent. So far, it has done so mostly by telling people they need to save water, although the city says it’s doing more to police water waste.
Elsewhere in the state, local water departments have gotten tougher. San Jose, for instance, is rationing water right now, allowing each customer only 12 units of water per month – that’s 2,200 gallons less than the average customer used in 2013. The rules have turned out not to be as controversial as originally thought.
Osann said the state could consider a few additional regulations. For instance, some cities still do not have water meters. The state could order them to install meters by a specific date.
In Sacramento, there are at least two battles going on right now over water rules. One is over the extension of the emergency regulations that expire in February.
Even if El Niño does bring a lot of rain, the amount of Sierra snowpack won’t be known until after the current drought regulations expire, which is one of the reasons it seems inevitable that drought regulations will be renewed at least through next spring.
The second battle is over long-term regulations that extend beyond the current drought. Local water agency officials want to move that fight to the Legislature, where their lobbying might be more effective than it is in front of the governor or agency bureaucrats.
At a recent meeting, Water Board Chairwoman Felicia Marcus said she wants the current negotiations over future regulations to take place behind closed doors, in talks limited to “water professionals” so everyone can have a “much more sophisticated view of what we might propose.”