California dry 2021 calls for water conservation response | Latham & Watkins LLP

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Limited water supply, usage restrictions and higher costs could be forecast for next year if drought conditions in the state persist.

This has been an extremely dry and hot year for California, resulting in deja vu as the federal and state governments reinstated drought conservation measures unprecedented since former California Governor Jerry Brown, declared the end of the last drought in 2017. This blog post summarizes the main ones and indicate the measures that have been taken to combat the drought in California over the past year, as well as the potential implications for 2022.

Federal response to drought in California

Pursuant to Section 759.5 (a) of Title 7 of the Code of Federal Regulations, the United States Secretary of Agriculture is authorized to designate certain drought-stricken counties as disaster areas. On March 5, 2021, US Secretary of Agriculture Thomas Vilsack wrote to California Governor Gavin Newsom designating 50 of California’s 58 counties as “major natural disaster areas due to recent drought.” In his letter, Secretary Vilsack explained that a “disaster designation by the secretariat makes farms in primary counties and counties contiguous to those primary counties eligible for some assistance from the Farm Service Agency (FSA), to provided that the eligibility conditions are met. FSA assistance includes emergency loans.

While the disaster designation underscores the Biden administration’s special attention to the climate crisis, Jeanine Jones, head of interstate resources at the California Department of Water Resources (DWR), noted that “the bar is set very low for itself. qualify, because the purpose of the disaster designation is to quickly make financial assistance available to [agricultural] producers. This contrasts with a declaration of a drought-related emergency under the California Emergency Services Act, which has greater practical effects.

Just two months later, on May 5, 2021, the United States Bureau of Reclamation took additional action to respond to worsening drought conditions in California and announced an update to its supply allocation. in the Central Valley 2021 project, suspending water service contractors north of the delta -Allocation of 5% of their contractual supply until further notice.

On August 16, 2021, the United States Bureau of Reclamation announced the first-ever water shortage in the Lower Colorado River Basin due to historic drought and poor runoff conditions in the Colorado River Basin. Due to the dramatic drop in water levels in Lake Mead (reaching 1,075 feet), a Level 1 shortage has been declared. As such, Arizona, Nevada, and Mexico are required to reduce their use of Colorado River water by 18%, 7%, and 5%, respectively. Lake Mead is the largest reservoir in the United States in terms of water capacity and a key water source for California and the Southwestern United States. If Lake Mead’s water levels drop below 1,045 feet, further reductions in use will be imposed on Arizona and Nevada, and California will also be forced to reduce its use.

California State of Emergency Proclamations and Additional Drought Relief Measures

On April 21, 2021, due to drought in the Russian River watershed, Governor Newsom issued the first of four state of emergency proclamations (the April Proclamation) in Mendocino and Sonoma. Since then, Governor Newsom has issued three additional proclamations, on May 10, 2021 (the May proclamation), July 8, 2021 (the July proclamation) and October 19, 2021 (the October proclamation), extending the state statewide drought emergency. On July 8, 2021, the same day he issued the July Proclamation, Governor Newsom issued Executive Order N-10-21, which called on “all Californians to voluntarily reduce their water consumption by 15% from at their 2020 levels ”.

Newsom’s state of emergency proclamations unveil a plethora of orders to tackle drought conditions statewide. The proclamations encourage water conservation and allude to the potential need for reduction. For example, the April Proclamation ordered state agencies to partner with districts and local water utilities to educate Californians about drought and “encourage action to reduce water consumption. ‘water’ by promoting ‘water conservation programs’. In the Russian River watershed in Mendocino and Sonoma counties, the National Water Resources Control Board (Water Council) has been ordered to consider “adopting emergency regulations. to reduce water diversion ”in certain limited water supply scenarios. The April Proclamation also mobilized government agencies to “develop principles of groundwater management” in order to assess and minimize impacts on drinking water wells.

Similarly, the May proclamation directed the Water Board to consider changing tank release requirements or bypass limitations to conserve water upstream later in the year. . Likewise, under the July Proclamation, in order to ensure the protection of water in counties declared to be affected by drought, the Water Board was ordered to consider “emergency regulations for restrict water diversions when water is not available to the priority of water rights holders or to protect discharges of stored water. Additionally, the October Proclamation enabled the Water Board to ban water-wasting practices, including the use of potable water to wash sidewalks and driveways. The October proclamation also called on local water providers to implement water shortage contingency plans that meet local conditions and prepare for the possibility of a third dry year.

In addition to safeguarding water resources, the proclamations aim to protect wildlife and natural habitats. For example, the April Proclamation ordered state and local regulatory agencies to “prepare for and resolve potential delta salinity issues” and “manage temperature conditions for fish preservation” in areas of the Delta. the Sacramento River. The April proclamation also ordered the Department of Fisheries and Wildlife (DFW) to “take action to protect land and water species.” The May Proclamation further directed the Water Board and DFW to assess the measures necessary to protect native fish in critical state waterway systems, and the July Proclamation ordered the state agencies to act to protect salmon, rainbow trout and other native fish. These steps demonstrate that California is committed to taking a holistic approach to drought mitigation, encompassing both human and environmental water needs.

More recently, on December 1, 2021, DWR announced that the State Water Project would not provide water to California farmers unless drought conditions improve in 2022, marking the first time since 2014 that California farmers have obtained a zero allowance for state water.

Implications

While the immediate impacts of the federal disaster designation and state of emergency proclamations on daily water users may be limited at this time, actions indicate that tougher water restrictions could emerge. to follow, particularly if drought conditions deteriorate in California and the Colorado River Basin. .

While contingency measures for past droughts are any indication of what lies ahead, mandatory water conservation and increased enforcement measures may be in store if the current drought continues. For a detailed analysis of California’s actions during the 2011-2017 drought, see Governor Brown Orders California’s First Mandatory Water Restrictions.

In light of the above, developers and commercial water users should stay informed of any emergency drought measures that regulators or water providers may take in the coming months. Such measures can limit the water supply, restrict when water can be used, or increase the cost of water.


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