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April 5, 2022  |  Written by Aaron A. Ferguson, Kyler C. Rayden

Governor Newsom’s Latest Executive Order Takes Local Approach to Drought Response

Last week, Governor Newsom issued an executive order calling on state and local agencies to increase water conservation measures following the driest January, February, and March on record. Executive Order N-7-22 expands upon a series of existing executive orders aimed at reducing water use, improving drought resiliency, and responding to future climate challenges such as more frequent, prolonged, and intense drought. The newest executive order provides that the Governor’s previous drought emergency proclamations remain in full force and effect, and directs state agencies to continue implementing all directives from previous proclamations and accelerate implementation where feasible.

Emergency Regulations

The executive order directs the State Water Resources Control Board (State Board) to “consider” adopting emergency regulations by May 25, 2022, that:

  • Require urban water suppliers (UWS) to submit preliminary annual water supply and demand assessments to the Department of Water Resources (DWR) by June 1, 2022. Under these proposed emergency regulations, UWS must submit final annual water supply and demand assessments by July 1, 2022, unless the UWS relies on imported water from the State Water Project or Central Valley Project, in which case the UWS must submit its final assessment by July 1, 2022, or 14 days after receiving its final allocation, whichever is later.
  • Require UWS to implement Level 2 response actions identified in their water shortage contingency plans by a date to be determined by the State Board. Triggering Level 2 occurs when approaching a water shortage level of up to 20 percent.
  • Prohibit irrigating “non-functional turf” in commercial, industrial, and institutional settings, except as required to ensure the health of trees and other perennial non-turf plantings. The emergency regulations also require that the State Board define “non-functional” turf, which the order generally defines as “ornamental and not otherwise used for human recreation purposes such as school fields, sports fields, and parks.”

While projects or actions undertaken to advance these directives are automatically exempt from the California Environmental Quality Act (CEQA), other water conservation projects or actions may also be eligible for exemption by the Secretary of the Natural Resources Agency on a case-by-case basis.

Well Permits

The order restricts counties, cities, and other public agencies in medium- or high-priority groundwater basins from:

  • Approving permits for new groundwater wells or the alteration of existing wells without first obtaining written verification from the managing Groundwater Sustainability Agency (GSA) that the proposed well would not be inconsistent with any sustainable groundwater management program, and would not decrease the likelihood of achieving any sustainability goals for the basin established in the GSA’s Groundwater Sustainability Plan, or
  • Issuing permits for new wells or for altering existing wells without first deciding that extracting groundwater from the proposed well would not likely interfere with nearby wells, or cause subsidence adversely impacting or damaging nearby infrastructure.

These restrictions do not apply to wells providing less than two acre-feet per year of groundwater for individual domestic users, or wells that exclusively provide groundwater for public water supply systems as defined in Health and Safety Code section 116275.

Other Provisions

The executive order also:

  • Directs the State Board to expedite and waive the filing fee for change petitions that add a fish and wildlife beneficial use, or point of diversion and place of storage to improve conditions for anadromous fish.
  • Suspends all public agency ordinances, regulations, prohibitions, policies, or requirements prohibiting hauling water for human consumption, cooking, or sanitation out of its basin of origin or the public agency’s jurisdiction.
  • Suspends CEQA and certain Delta Plan requirements typically associated with groundwater recharge projects enhancing local or state agencies’ abilities to capture high‑precipitation events.
  • Directs the State Board to increase inspections for illegal diversions, waste, or unreasonable water use.
  • Encourages collaboration between state, federal, regional, and local agencies to promote groundwater recharge and increase storage capabilities.
  • Directs DWR to work with other state agencies to investigate expedited regulatory pathways to modify, repair, or reconstruct failed household or small community, or public supply wells.
  • Directs DWR to prepare for the potential creation and implementation of a “multi-year transfer program pilot project” acquiring water from willing partners and storing and conveying it to areas of need.

Stakeholder reactions to the order have generally been positive. Many special districts throughout the state lauded the order’s approach of encouraging local water managers to identify and implement water conservation projects or actions in response to worsening drought conditions rather than imposing mandatory water cutbacks. The Secretary of the California Environmental Protection Agency, Jared Blumenfield, emphasized the importance of listening to local water users because a “one size fits all” approach will not work in California.

If you have any questions about how the executive order may impact you, your agency, or your business, please contact Kyler Rayden at krayden@somachlaw.com or Aaron Ferguson at aferguson@somachlaw.com.

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