California Issues New Drought Executive Order
Potential Ramifications for Urban Water Suppliers and Well-Permitting Entities
Gov. Newsom has signed Executive Order N-7-22 (Order) in response to intensifying drought conditions. The Order, signed earlier this week, builds on his four 2021 orders relating to California’s drought, which is now in its third year. The governor has instructed that the information be widely publicized, and water providers should consider informing their customers about these drought developments.
Among other requirements, the Order limits a county, city or other public agency’s ability to permit modified or new groundwater wells, and instructs the State Water Resource Control Board (Water Board) to consider (1) requiring certain water conservation measures from urban water suppliers and (2) banning non-functional or decorative grass at businesses and institutions.
The Order recognizes that California is facing dire hydrologic conditions. The promising rains at the end of 2021 were followed by the driest January and February in California’s recorded history. Numerous water supply reservoirs are below historical averages; surface water supplies may be limited, and groundwater pumping will likely increase; and the Department of Water Resources (DWR) has reduced anticipated deliveries from the State Water Project to 5% of requested supplies. The Order imposes immediate requirements and suggests impending regulations from the Water Board.
Immediate Requirements
Before local entities can permit new or modified groundwater wells in high and medium priority groundwater basins, the Order requires the Groundwater Sustainability Agency monitoring the basin to verify in writing that the permitted action is not inconsistent with the Groundwater Sustainability Plan or other groundwater management program for the basin. Additionally, the permitting entity must determine that the well will not interfere with nearby wells and will not cause subsidence that could negatively affect nearby infrastructure. Certain de minimis exceptions apply.
To allow communities that need emergency hauled or bottled water to receive that water more easily, the Order also encourages the hauling water for domestic use where local domestic water users are threatened with the loss of water supply or degraded water from drought. Accordingly, any local regulation prohibiting the hauling of water by truck or bottle for human consumption, cooking or sanitation out of the basin of origin or agency’s jurisdiction is suspended.
Potential New Water Board Regulations
By May 25, 2022, the Water Board must consider adopting regulations requiring the following:
- Urban water suppliers shall submit a draft annual water supply and demand assessment, as required in Water Code section 10632.1, by June 1, 2022. The final draft remains due on July 1, 2022.
- Urban water suppliers shall activate their Water Shortage Contingency Plan (WSCP) Level 2 requirements (anticipating up to a 20% reduction in supplies), or an equivalent standard if there is no adopted WSCP, by a date to be determined by the Water Board. CEQA requirements for projects relating to implementing WSCP Level 2 requirements are suspended.
- The Water Board shall consider defining non-functional turf and banning the irrigation of non-functional turf for commercial, industrial and institutional properties.
Additional Key Takeaways from the Order
The Water Board must expeditiously facilitate voluntary actions to improve fish habitat; expand inspections to prevent illegal, wasteful or unreasonable uses of water; and streamline projects designed to capture precipitation for local storage or recharging water projects.
DWR must prepare for the possibility of a continuing drought, including consulting with leaders in various sectors to strategize for improved conservation and preparing for the potential creation of a multi-year water transfer project. Additionally, DWR shall assist with repairing drought-related failed household or small community groundwater wells on an expedited basis.
State agencies must work with tribes, federal, regional and local agencies to promote groundwater recharge and storage, and prioritize projects that capture high precipitation events for groundwater storage and recharge.
Finally, the Order encourages more stringent conservation on a voluntary basis, e.g., activation of WSCP Level 3, anticipating shortage levels of up to 30%. It also encourages all Californians to limit their summertime water use and generally use water more efficiently both indoors and out.
Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.
