It is no secret that the Colorado River Basin, and the western United States generally, have been facing historically dry conditions this century. Federal, state, and local agencies across the region continue to grapple with adopting policies and taking actions to ensure the prudent and equitable management of water resources and the avoidance of disastrous effects of water shortages.

Questions remain as to how the Bureau of Reclamation and the seven Colorado River Basin States will cooperate to ensure Lakes Mead and Powell avoid hitting “dead pool” in the future. Water leaders will discuss such issues this week at the annual Colorado River Water Users Association Conference in Las Vegas, Nevada.

In the meantime, however, urban water entities in the Basin have already endeavored to effectuate positive change through water conservation policies. For instance, in November, thirty municipal and public water providers in the Colorado River Basin, including Denver Water, signed a Memorandum of Understanding (MOU) to demonstrate their commitment to conserving water. A key topic in the MOU, and one that is growing in popularity, is the removal of “nonfunctional” grass.

Removing nonfunctional grass, or banning the irrigation thereof, is an urban water conversation policy that many state and local agencies across the West have adopted or are considering.

Last week, the California State Water Resources Control Board readopted an emergency regulation that prohibits “wasteful water uses,” such as the irrigation of public street medians, and earlier this year adopted a separate emergency regulation banning irrigation of “non-functional turf” at commercial, industrial, and institutional (CII) sites. In 2021, Nevada enacted AB 356, thus prohibiting the irrigation of certain nonfunctional grass. In October, Metropolitan Water District adopted a resolution that recommends Southern California cities enact similar ordinances. The Denver suburb of Castle Rock also passed an ordinance in October that purports to reduce outdoor irrigation (which accounts for 40% of municipal and industrial water use in Colorado), and the City of Tucson has been considering similar measures.

The policy is not without opposition or viewed as flawless. Some fear it may cause increased urban heat, result in adverse effects on community aesthetics, and lead cities, CII property owners, and homeowners to face costs associated with changing existing landscaping. In response to the latter concern, states have created programs to provide funding:  in 2022, Utah enacted HB 121 to create a grass removal rebate program; Colorado also enacted HB 1151 in 2022, and has additional programs through the Colorado Water Conservation Board, to incentivize and provide funding to cities and special districts to remove urban grass.

In sum, dry conditions in the West have forced water leaders to rethink conventional practices. While the irrigation of nonfunctional grass is but a slice of the pie, local and state agencies have made a concerted effort to reduce or prohibit such water use. This shift has forced many municipal and public water providers, as well as CII property owners and homeowners, to adapt and/or comply with new laws and regulations. Fortunately for some, there are funding opportunities to ease regulatory burdens or incentivize voluntary conservation.

Somach Simmons & Dunn specializes in water law and provides legal services to a variety of water users, including public water providers. If you have any questions on urban water conservation policies, please contact Max Bricker at mbricker@somachlaw.com or Aaron Ferguson at aferguson@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.