Proposed Water Restrictions Prompting a Future of Protracted Water Litigation in California

Water wars, long predicted to occur in California may finally be materializing. The decade’s long drought, which culminated in mandatory water restrictions on users is being taken as an indication that resources will continue to be strained in the near future. The wars are first being fought within the legislature, as restrictions on water are debated and implemented in opposition of those who believe it is a legal infringement on water rights.

On February 20, 2018 the State Water Resources Control Board decided to postpone new regulations, which would have implemented drought control measures similar to the 2016 executive order issued by Governor Jerry Brown at the height of the drought. Restrictions are aimed at cutting unnecessary water use, such as operation of fountains and spraying down sidewalks. While not targeting large scale water use (which is primarily attributed to agriculture), the restrictions attempt to signal a culture change and spur general public awareness of the importance of water conservation.

The primary challenges the restrictions will face, if implemented come from water districts who view the regulations on their ability to regulate at the local level. The restrictions in essence make uniform policy decisions across the state at the local level. The restrictions at issue are not the crux of the fight that water districts are concerned about since they are relatively minor in the scheme of water regulations.

The underlying issue is that enforcing these regulations could be setting a dangerous precedent in which the State Water Control board is empowered to enforce large-scale regulatory restrictions in the future, which would curb autonomy at the local level.

While the state aims to protect their economic future by preparing for a future with less water, individuals rights holders, and water districts will take legal action to protect such interests. This trend has begun with the litigation prompted by the Sustainable Groundwater Management Act and the threatened litigation triggered by the executive order curtailing water in 2015.

Given the typical length of water rights adjudications it is clear this will be a long fight for the future of water law in California if the State Water Resources Control Board decides to enforce the restrictions.