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.

We Stand Up for You. Will You Stand Up for Us?

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.

“Yes, they will have to be renewed, let’s be honest with ourselves, a wet December doesn’t get us out of the drought,” Water Board member Steven Moore said at a meeting earlier this month.

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.”

    This article relates to: California Drought, Government, Must Reads, State Government

    Written by Ry Rivard

    Ry Rivard is a reporter for Voice of San Diego. He writes about water and power. You can reach him at ry.rivard@voiceofsandiego.org or 619.550.5665.

    Bill Stoops
    Bill Stoops

    Others commenting here have made the case for improved supplies, representative government, and the application of technology over deprivation.  The article serves us all well to display the willingness of the people we the elect and  employ to command us, as opposed to represent us.  if you care about your freedom, and your right to your own life, become active in seeking out government representatives in accordance with those values.  if you don't, then welcome to "star chamber" processes as Felicia Marcus desires to apply in setting restrictions on your life.

    Don Billings
    Don Billings subscriber

    This is an important article, and a warning to us all that our continuing failure to act in the face of Sacramento's bureaucratic overreach could harm us for many years to come.

    Over the past 25 years, our region has invested responsibly to meet our water needs, by increasing local storage, developing local and drought-proof supplies (including desal and recycled water), encouraging economically rational conservation, and largely eliminating our need to import water from northern California.  These investments have long term benefits, and the costs are similarly and properly spread over the long term.  

    Put another way, we are well positioned for this drought, and for the future under any reasonable scenarios of supply and demand.  

    Jerry Brown's action, taken without legislative or judicial review, effectively seizes the value of our investments, without compensation, and without benefit to us or to any other part of our state.  His action has burdened us with a pointless half billion dollars of taxes, producing nothing - except perhaps political cover for Brown's agenda.

    Now his hand-picked political appointees are scheming to cast this idiotic order in concrete, behind closed doors, with the effect of destroying our investments, burdening us for decades to come with the cost of water that we have but he says we should not use, and sending a clear message to other regions in our state to NOT plan and invest responsibly.

    Keep it up Governor.  Bring on the closed door meetings, Sacramento bureaucrats.

    Anybody want to get a RECALL moving?

    CE Dickerson
    CE Dickerson

    Technology is the answer to accessing the abundance of water covering 71% of the earth's surface, but our government won't allow us to use it.

    We don't have to be helpless victims of the weather. See www.watersandieogo.org for facts about San Diego's water.

    The most important information in Mr. Rivard's article is revealing Ms. Marcus as the tyrant she wishes to be, hiding behind closed doors with "sophisticated" "water professionals," dictating restrictions with blatant contempt for our rights--and our intelligence.

    We don't have to be helpless victims of her wishes, or Governor Brown's, for that matter. Those of us who value freedom can stand up and speak out for individual rights, in this case, the freedom to develop and use technology for weather-proof water.

    SDResident subscriber

    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. "

    I've been saying for months that the first drop of rain that hits the ground this fall people will be clamoring to end the restrictions.

    California is in a semi-permanent drought and it makes no sense to lift restrictions.  If the water department has excess water then why do they need o raise rates to purchase water?  If we are going to add a million residents in the next 15 years we will need that excess and much more.

    Bill Stoops
    Bill Stoops

    @SDResident While I do not enjoy rate increase any more than you do, how water districts are regulated governs the financial position they are in.  They are not private companies with some of the options available to that enterprise situation.  They have excess water they cannot sell, currently, due to the state's creation of a "shortage", which is not real at all.  There is water to sell, that cannot be sold without financial penalty levied by the state on the district.  And past that club, the state has the legal authority to "consolidate" if not take over districts seen as "underperforming".  You might know how the state would define that term to an agency that has no real shortage at all, and would sell as customers are willing to buy.  The state is setting is sense of morality and justice above the residents of San Diego county, who have paid to increase reliable supplies against this situation since the 1990's.  Water we do not use, some 8-10% of it, will evaporate from the newly enlarged San Vincente reservoir.  That unused water cannot be relocated to areas of the state less responsible for their own well being, less proactive, than San Diego county residents.  I, for one, don't support the state's declaration of an emergency that does not exist here.