The City of Riverside, California filed a lawsuit on June 4, 2015 calling for the State Water Resources Control Board (“State Board” or “Board”) to rescind its adoption of the well-storied mandatory conservation regulation alleging that it is arbitrary and capricious.
The Southern California city’s case turns on one provision in the State Board’s regulation. Section 865(c) provides an exemption to the conservation regulation for certain Northern California agencies for whom 1) local surface water is their sole source of supply, 2) reductions in diversions would have no impact on the drought because undiverted water would simply run to the ocean, and 3) at least four years of water supply is in reserve. Under the exemption, the agencies meeting these criteria can appeal to the State Board Executive Director to be allowed a monthly reduction of 4% instead of the much higher reduction that would otherwise be imposed.
Riverside argues that though the city uses groundwater, its water supply situation is otherwise substantively the same as the Northern California cities:
- The city is “water independent”—it imports no water from Northern California and has no plans to do so. Rather, it is solely dependent on groundwater from local adjudicated basins that are recharged naturally by local precipitation and have maintained stable water levels. Ensuring water independence has required significant investment—including the purchase of agricultural water companies to secure a sufficient water supply to meet demands as agricultural lands were converted to urban use and the construction of a new treatment plant that treats water from former irrigation wells to potable water standards—which the city maintains would become stranded investments under the conservation regulation.
- Under the adjudication, if Riverside does not extract all of its water, the water will just “sit in the basin.” It cannot be extracted or used by another party. Yet, failure to comply with the State Board’s conservation regulation would incur a $10,000 per day fine.
- The city has four years of water supply in reserve.
Furthermore, when the draft regulation was released, the State Board specifically sought comment on whether the lower 4% standard should also apply to agencies who use groundwater, and Riverside provided written comments on the matter. However, in a public meeting, State Board staff mentioned having information only about the surface-water dependent Northern California agencies, but failed to mention comments from agencies located elsewhere. Staff also declared that it would be too difficult to include groundwater users in the 4% tier, but, according to the city, they failed to provide any evidence as to why. The city charges that ultimately they failed to provide an explanation for why they were “listening to one class of water suppliers, but ignoring the other class of water suppliers.”
As relief, the city is asking the court to issue a writ of mandate ordering the Board to rescind the resolution adopting the regulation; to issue a stay, temporary restraining order, preliminary injunction and permanent injunction preventing the Board from taking action against the city to enforce the regulation; and to declare that the Board’s resolution is in violation of the Code of Civil Procedure.
While this is the first official challenge to the Board’s regulation, other agencies have expressed concern that the massive regulatory response to the drought fails to consider their situation. In early May, responding to the adoption of final regulation, San Diego County Water Authority (“SDCWA”) Board of Directors Chairman Mike Weston issued a statement expressing disappointment that the regulation neither considered investments that had been made to increase water supplies (like the Carlsbad Desalination Project) nor gave credit for previous conservation efforts.
“… [W]e are disappointed that the board’s regulations do not encourage the development of new water supplies. Despite requests by the Water Authority and others, the regulations don’t give credit to regions that have prudently planned for dry periods by investing in drought-proof water supplies such as the Carlsbad Desalination Project, which will produce 50 million gallons per day for San Diego County starting this fall,” said Weston.
Later he added, “With yesterday’s actions, the state board has focused on achieving immediate water-use reductions statewide. In our region, the state’s mandate translates to water-savings targets between 12 and 36 percent for our member agencies starting June 1.”
With agencies desiring a more tailored approach to conservation and Riverside calling for a full retraction of the regulation, expect all eyes on this lawsuit as it proceeds.
Written by Marta L. Weismann