Water & Drought

Sacramento-area water agencies call state drought program illegal

California Gov. Jerry Brown talks to reporters after a three-hour meeting on the drought with agricultural, environmental and urban water agency leaders from across California, Wednesday, April 8, 2015, at his Capitol office in Sacramento.
California Gov. Jerry Brown talks to reporters after a three-hour meeting on the drought with agricultural, environmental and urban water agency leaders from across California, Wednesday, April 8, 2015, at his Capitol office in Sacramento. AP

Several suburban Sacramento water agencies on Wednesday challenged the state’s latest emergency water conservation plan, calling the proposed drought reductions an illegal water grab.

In letters delivered to the State Water Resources Control Board, local water officials argued that the board is misusing its authority to impose mandatory conservation, and took issue with the notion implicit in the state’s proposal that watering lawns is an unreasonable use of water.

Representatives of the Placer County Water Agency, San Juan Water District, city of Roseville and Sacramento County Water Agency, in a joint letter, took exception to being lumped in with communities that don’t have strong water rights under California law and largely import their water from other regions.

“The ‘tiers’ do not recognize water-right priorities, population density, climatic variation or any other facts particular to water use,” the agencies wrote.

A separate letter, from the Fair Oaks Water District, was equally blunt, calling the proposed state mandates illegal and unfair. In it, district General Manager Tom Gray said water users in his area should not be required to take on the burden of conservation for people who import their water, a reference to Southern California, which relies on Northern California and Colorado River water for basic needs.

Fair Oaks, a small district, serves 13,800 accounts, mainly south of Madison Avenue, east of San Juan Avenue and north of the American River.

The letters came in response to the state’s latest proposal, issued Saturday, for mandatory water cuts at urban agencies throughout California as the state enters a fourth year of deep drought. The comments appear to be the strongest pushback so far against the board’s effort to carry out an emergency order by Gov. Jerry Brown that called for a 25 percent reduction in urban water use statewide.

The water board proposal divides the state’s 411 urban water agencies into nine tiers, depending on their per capita water use last summer. Each tier is assigned a mandatory conservation target, ranging from a 4 percent cut in water use to a 36 percent cut, with the biggest water users targeted for the biggest cuts. Thirteen of the Sacramento area’s 23 water districts fall into the highest tier and would have to cut usage 36 percent, compared with 2013.

Under the proposal, Placer and San Juan are among the agencies facing 36 percent cuts. Sacramento County faces a 32 percent cut, and Roseville faces 28 percent.

Both letters stopped short of saying the districts plan to sue the state. Instead, the agencies say they plan to “voluntarily” work to achieve the governor’s conservation goals.

Water board officials declined comment on the letters, but issued a brief statement saying they believe their approach is legal.

“California is facing a devastating drought,” board spokesman Andrew DiLuccia said in an email. “During such drought emergencies, the Legislature has authorized the board to adopt emergency conservation regulations. The preliminary regulations that water board staff have developed are lawful and consistent within that legislative authorization.

“Nonetheless,” the statement continued, “water board staff are reviewing comments, and if they identify legal deficiencies, the staff will make appropriate revisions before making a final recommendation to the board members.”

Brown spokesman Evan Westrup defended the governor’s order, as well, saying in a statement, “The administration is confident that this order is legally sound.”

The conservation plan has fueled longstanding tensions between north and south in California’s water tug-of-war. Several Sacramento-area districts have argued they should not be measured against coastal cities whose residents use less water because of higher housing densities and cooler climates. Many also note that under California’s arcane water laws, they have superior rights to Northern California water that is shared throughout the state.

Southern California water agencies, meanwhile, say they should get credit for costly conservation efforts that have allowed them to grow for decades without increasing their water usage.

In issuing its proposed framework, the water board took a broad view of the state, essentially asking each region to cut in proportion to its per capita use in summer of 2014. The board argued that many communities, including the Sacramento region, have the ability to cut more deeply because of how much water is used to maintain large lawns and ornamental landscape.

Gray, the Fair Oaks Water District head, called the plan “punishment” for his agency. Fair Oaks relies mainly on Folsom Lake for its water, but also taps groundwater supplies. In recent years, the agency has spent $6 million on pumps that give it more access to groundwater in dry years.

“Why is the (state) forcing the district’s ratepayers to forgo our own locally available resources to meet the needs of those that have failed to plan?” Gray asked in his letter. He cited state Water Code section 1011, arguing that any water saved by the district belongs to the district “and cannot be reallocated to others without the consent of the district.”

He also took issue with the state’s baseline for determining how much water agencies are using per capita and, therefore, how much they have to cut. The state based its calculations on average per capita water use in July through September 2014 – months when Sacramento area residents tend to water heavily.

Gray noted that residents in his district use far less water in winter, when outdoor irrigation is less of a factor. Fair Oaks customers on average used 274 gallons of water per person per day last summer, putting them in the top 10 percent of urban water users in the state. The district’s winter water use was 91 gallons a day, far closer to the statewide average of 76 gallons.

Chart showing summer and winter water use for local districts 

He asked for the state to include the winter months in its calculations for setting conservation targets.

Gray said his district does not plan to sue to stop the state’s program. “We want fair consideration, that’s all. We understand there is a crisis and we all need to help out. ... We will share, it is a given, but we don’t want anybody stealing it, taking it, mandating it.”

The Regional Water Authority, which helps coordinate Sacramento area water agencies, sent a letter to the board offering similar criticisms. The authority called for a minimum 10 percent reduction for all agencies. A handful of cities, including San Francisco, are targeted for an 8 percent cut.

Water board spokesman DiLuccia said the state had received 80 letters from water agencies and others as of Wednesday afternoon.

Water board officials have said in recent weeks that they are trying to devise the most equitable approach possible on short notice in response to the governor’s order. They pleaded in recent weeks for Californians to put aside regional differences and agree to cooperate for the benefit of the state during the 270 days covered in the governor’s order.

“We are in an emergency,” water board Chief Deputy Director Caren Trgovcich said Saturday. “The proposed regulations reflect the urgency of the situation.”

The board plans to vote on the proposed conservation mandates in early May. They would take effect June 1 and last until Feb. 28.

Felicia Marcus, chairwoman of the water board, said her agency is listening to water districts and may make more changes before the May vote.

“We are trying to find that sweet spot between making it as fair as we can and getting that water conservation,” she said.

Call The Bee’s Tony Bizjak, (916) 321-1059.

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