Limited water supply, restrictions on use, and higher costs may be in store for next year if the state’s drought conditions persist.
By Michael G. Romey, Cody M. Kermanian, and Lucas I. Quass
This year has been critically dry and hot for California, resulting in déjà vu as the federal and state governments reinstituted drought conservation measures not seen since former California Governor Jerry Brown declared an end to the last drought in 2017. This blog post summarizes the key federal and state actions that have been taken to address California’s drought over the past year, along with potential implications for 2022.
Federal Response to California Drought
Pursuant to Section 759.5(a) of Title 7 of the Code of Federal Regulations, the US Secretary of Agriculture is authorized to designate certain drought-stricken counties as disaster areas. On March 5, 2021, US Secretary of Agriculture Thomas Vilsack issued a letter to California Governor Gavin Newsom, designating 50 of California’s 58 counties as “primary natural disaster areas due to a recent drought.” In his letter, Secretary Vilsack explained that a “Secretarial disaster designation makes farm operations in primary counties and those counties contiguous to such primary counties eligible to be considered for certain assistance from the Farm Service Agency (FSA), provided eligibility requirements are met.” FSA assistance includes emergency loans.
While the disaster designation underscores the Biden Administration’s keen attention to the climate crisis, Jeanine Jones, interstate resources manager with the California Department of Water Resources (DWR), noted that “the bar is set very low to qualify, because the purpose of the disaster designation is to quickly make financial assistance available to [agricultural] producers.” This is in contrast to a declaration of a drought emergency under California’s Emergency Services Act, which carries more significant practical effects.
Just two months later, on May 5, 2021, the US Bureau of Reclamation took a further step to respond to California’s worsening drought conditions, and announced an update to its 2021 Central Valley Project water supply allocation, suspending water service contractors’ north-of-Delta allocation of 5% of their contract supply until further notice.
On August 16, 2021, the US Bureau of Reclamation announced the first-ever water shortage for the lower Colorado River basin due to historic drought and low runoff conditions in the Colorado River Basin. Due to dramatic declining water levels in Lake Mead (reaching 1,075 feet), a tier 1 shortage was declared. As such, Arizona, Nevada, and the country of 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 source of water for California and southwestern US. If Lake Mead water levels decline to below 1,045 feet, further use reductions will be imposed on Arizona and Nevada, and California will be forced to reduce its use as well.
California State of Emergency Proclamations and Additional Drought Response Measures
On April 21, 2021, due to drought conditions in the Russian River Watershed, Governor Newsom issued the first of four state of emergency proclamations (the April Proclamation) in Mendocino and Sonoma counties. Since then, Governor Newsom 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 drought state of emergency statewide. On July 8, 2021, the same day that he issued the July Proclamation, Governor Newsom issued Executive Order N-10-21, which called for “all Californians to voluntarily reduce their water use by 15 percent from their 2020 levels.”
Newsom’s state of emergency proclamations unveil a host of orders to combat drought conditions across the state. The proclamations encourage water conservation and hint at the potential need for curtailment. For instance, the April Proclamation ordered state agencies to partner with local water districts and utilities to make Californians aware of the drought and “encourage actions to reduce water usage” by promoting “water conservation programs.” Within the Russian River Watershed in Mendocino and Sonoma counties, the State Water Resources Control Board (Water Board) was ordered to consider “adopting emergency regulations to curtail water diversions” under certain limited water supply scenarios. The April Proclamation also mobilized state agencies to “develop groundwater management principles” to assess and minimize impacts to drinking water wells.
In a similar vein, the May Proclamation directed the Water Board to consider modifying requirements for reservoir releases or diversion limitations to conserve water upstream later in the year. Likewise, under the July Proclamation, to ensure protection of water in the proclaimed drought counties, the Water Board was ordered to consider “emergency regulations to curtail water diversions when water is not available at water right holders’ priority of right or to protect releases of stored water.” Furthermore, the October Proclamation enabled the Water Board to ban wasteful water practices, including the use of potable water for washing sidewalks and driveways. The October Proclamation also directed local water suppliers to implement water shortage contingency plans that are responsive to local conditions and prepare for the possibility of a third dry year.
Apart from 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 address potential Delta salinity issues” and to “manage temperature conditions for the preservation of fish” in areas of the Sacramento River. The April Proclamation also ordered the Department of Fish and Wildlife (DFW) to “take actions to protect terrestrial and aquatic species.” The May Proclamation further ordered the Water Board and DFW to evaluate actions needed to protect native fishes in critical stream systems in the state, and the July Proclamation ordered state agencies to act to protect salmon, steelhead, and other native fishes. These measures demonstrate that California is committed to 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 will not provide water to California farmers unless drought conditions improve in 2022, marking the first time since 2014 that California farmers have gotten a zero allotment for water from the state.
Although the immediate impacts of the federal disaster designation and the state of emergency proclamations on everyday water users may be limited at this time, the actions signal that more severe water restrictions may follow, particularly if drought conditions deteriorate in California and on the Colorado River Basin.
If past drought contingency measures are an indication of what lies ahead, mandatory water conservation and increased enforcement measures may be in store if the present 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 foregoing, developers and commercial water users should stay informed of any drought contingency measures that regulators or water suppliers may implement in the coming months. Such measures may limit the supply of water, restrict when water can be used, or increase the cost of water.
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