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Local Agencies Granted Increased Authority for Drought-Related Civil Fines, May Not Issue Fines for Brown Lawns & Must Update Efficient Landscape Ordinances

Client Alert

The California Legislature and State agencies have been active this year developing various new rules regarding water use in California and local regulation thereof.  This Alert provides an update on several recent developments and proposed legislation that impact local agencies and how they regulate water use within their respective jurisdictions.

SB 88 – Allowing Fines Up to $10,000 for Violations of Drought Regulations

On June 24, 2015, Governor Brown approved a budget bill that includes several water-related provisions, including granting the State authority to consolidate water systems where insufficient supply exists to serve disadvantaged communities, new measuring and reporting requirements for water diversions, and suspending CEQA review for certain drought-related projects.  SB 88 also amended Section 377 of the Water Code, which already contained provisions for criminal convictions, to allow civil liability of up to $10,000 for violations of water conservation programs or a State emergency regulation.

More specifically, the civil liability for residential water users may not exceed $1,000 for the first violation, unless the court or public entity finds the following extraordinary situations: the residential water user had actual notice of the requirement that was violated; the conduct was intentional; and, the amount of water at issue was substantial.  If the water user commits another violation more than 30 days after the initial notification of a violation, they can face fines up to $10,000, plus $500 for each additional day the violation continues.  The civil fines collected by the public entity must be expended for purposes of water conservation.

SB 88 also authorizes a public entity to enforce water use limitations by a volumetric penalty (i.e., amount of water used), and allows the top executive officer of a public entity to identify “designees” to issue citations and complaints for violations of local water conservation programs or State emergency regulations.   

AB 1 – No More Fines for Brown Lawns During Times of Drought

On July 13, 2015, Governor Brown approved AB 1 (Brown), which prohibits a city, county, or city and county from imposing a fine under any ordinance for a failure to water a lawn or for having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions.

Revised Model Water Efficient Landscape Ordinance

In 2009, the Department of Water Resources (“DWR”) adopted the Model Water Efficient Landscape Ordinance (“Model Ordinance”) in order to ensure efficiency in urban landscapes.  Local agencies must either adopt the Model Ordinance or may develop an ordinance to fit local conditions, which must be at least as effective in conserving water as the Model Ordinance.  Governor Brown’s April 1, 2015, Executive Order B-29-15 required DWR to update the Model Ordinance through expedited regulation.  On July 15, 2015, the California Water Commission adopted DWR’s new Model Ordinance. 

The new Model Ordinance requires yards and commercial landscapes installed in California to use up to a third less water on average.  It also limits lawns in commercial settings to uses such as recreation and public assembly, requires efficient sprinkler nozzles in landscape irrigation systems, and, with some exceptions, bans turf in street medians and parkways.

The threshold size for landscape projects subject to the ordinance was reduced from 2,500 square feet to 500 square feet for new residential, commercial, industrial and institutional projects.  The revised Model Ordinance also includes a prescriptive checklist as an option for compliance for landscapes less than 2,500 square feet, such as prohibiting turf in non-residential areas and in the areas between street curbs and sidewalks that are less than 10 feet wide, subject to certain conditions.  The list also requires compliance with guidelines for the use of automatic sprinklers.

To encourage the reuse of water from sinks, tubs and washing machines called "graywater,” the Model Ordinance allows landscapes under 2,500 square feet that are irrigated only with graywater or captured rainwater to meet a simple irrigation checklist and not be subject to the entire ordinance.  It also includes improvements in more efficient irrigation systems and onsite stormwater capture.  Finally, it requires local agencies to report to DWR on the implementation and enforcement of the Model Ordinance by December 31, 2015, and then by January 31st in subsequent years.

The Model Ordinance requirements take effect December 1, 2015, and apply to landscaping built or significantly modified to the point of requiring a local permit, plan check, or design review.  The adopted version of the new Model Ordinance will be available at the following DWR website: www.water.ca.gov/wateruseefficiency/landscapeordinance/.

Proposed Legislation Would Prevent Local Agencies from Prohibiting Installation of Artificial Turf on Residential Property

Proposed legislation AB 1164 (Gatto) would prohibit a city, including a charter city, county, and city and county, from enacting or enforcing any ordinance or regulation that prohibits the installation of synthetic grass or artificial turf on residential property.  It would also appropriate money from the General Fund to the DWR, to provide matching funds to specified local agencies to provide incentives to residents to replace water inefficient landscaping with drought tolerant landscaping.

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For further information, please contact any of the attorneys from Aleshire & Wynder, LLP’s Water Practice Group at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.