On February 20, California’s State Water Resources Control Board postponed a decision on the adoption of new statewide regulations meant to curb wasteful water practices. The regulations would make permanent some rules California enacted temporarily during the recent drought, which ended last year.

After several public comment periods this winter, water board staff tweaked the regulations to address concerns and recommendations from water users and other groups, but the postponement came after a large number of water agencies claimed the regulations are a violation of water rights.

“We believe using waste and unreasonable use as the tool to reach these conservation objectives is problematic and inconsistent with the law,” read a comment letter to the board signed by dozens of water agencies. “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. The regulations are part of a broader plan outlined in a May 9, 2016, Executive Order from Governor Jerry Brown titled Make Conservation a California Way of Life.

It is one small but important piece of the state’s overall work at increasing resilience to climate change and its impact on California’s water, according to Max Gomberg, climate and conservation manager at the State Water Resources Control Board.

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. “I think it’s about ensuring that there’s basic uniform standards of water waste and the ability when needed to enforce those standards statewide.”

Water Rights

At first glance, it would seem strange that so many water agencies are opposing the board’s action because most agree that the prohibitions are common sense and good water policy. And in fact, many of the same regulations have been in place for years at the local level.

“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.

Robert Donlan is an attorney with law firm Ellison Schneider Harris & Donlan who has spoken on behalf of a coalition of water agencies opposing the regulation. 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. “There is no question that water rights do not include the right to waste water, which is what we are talking about in this resolution. We’re not talking about broader conservation measures.”

Bigger Issues

What’s at stake appears to be a much bigger fight, though. “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. “It’s setting a precedent.”

Donlan also acknowledged that larger issues are at play and concern with precedent is one of them.

“The higher-level concern is establishing a precedent that the board could, through quasi-legislative means, enact regulations declaring certain uses to be wasteful and unreasonable without affording due process on a case-by-case basis,” said Donlan.

During a recent water board hearing, several commenters alluded to this issue of a “slippery slope” of regulations, which may be about urban water practices this year, but could take on agricultural or other water uses later.

Also at issue, believes Gomberg, is a state versus local power struggle. “There is a long-standing belief in some quarters that really the state shouldn’t have anything to say about water use and this is just evidence of a balance of power and responsibility between locals and the state that is tilting toward the state and they don’t like that,” he said.

Harder concurs, but said there is an additional problem. “Good water policy is going to require statewide action that can only come from the state water board, but the legal rules that govern state water board authority are at best vague and at worst directly conflicting with each other.”

This has created a patchwork structure for state water board authority that results in unnecessary litigation and does not support good water policy, she said.

“If our goal is legal clarity, what we really need is a clear legislative delineation that gives the state water board clear authority where that is sensible and retains local authority where that is sensible,” said Harder.

It’s unclear if water agencies will pursue legal action if the board doesn’t amend its approach to the regulations, which Gomberg said may be taken up again as early as April.

While he said there is still time for discussion on the issue of water rights, he added, “It’s not as if we have changes under development at the moment.”