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California drought: Why is there no mandatory water rationing?

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The Santa Clara Valley Water District estimates it will lose up to $20 million because of its request last month for a 10 percent voluntary reduction. L.A.’s Metropolitan district expects to lose $150 million by asking for 20 percent voluntary cutbacks.

In the past, agencies have sometimes raised rates to make up the difference.

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"People say, ‘What! You made us conserve and now you are raising the rates?!’" said Jerry Meral, former deputy director of the state Department of Water Resources. "But they still have to pay the staff and run the agency."

Third, enforcing mandatory rationing is a political nightmare. Almost any plan a district undertakes will spur objections; people complain that if they’ve already been efficient all along they’ll have a harder time meeting lower targets than their water-wasting neighbors.

And finally, many water agencies are still hoping that new storms in February, March and April might bail them out, along with voluntary measures.

"It may well be that more stringent and serious measures are taken later," said Andrea Pook, a spokeswoman for the East Bay Municipal Utility District. "This is very early."


When the governor declared a water emergency on Jan. 17, he called for statewide 20 percent voluntary cutbacks.

"As we go down the road — you know, January, February, March — we will keep our eye on the ball and intensify, even to the point of mandatory conservation," Brown said. "But we’re not going to do that quite yet."

However, the governor’s office declined to provide details on how Brown would order cities, counties, private companies and farmers to use less water.

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Legal experts say the issue is amazingly complex. Farmers use 80 percent of the water that people consume in California, for example. Yet there are no state laws regulating groundwater pumping, so it’s not clear what would happen if the governor tried to order farms to cut back. Private companies would almost certainly demand taxpayers bail them out if they were ordered to sell less water, just as a car dealer would if the government ordered him to sell fewer cars.

"The lawsuits would last longer than the drought," said Barton "Buzz" Thompson, a law professor at Stanford University.

In 1977, during his first term as governor — and in a severe drought — Brown asked his attorney general whether he even had the legal power to impose mandatory rationing. Yes, wrote then-Attorney General Evelle Younger in an opinion, under the same laws that governors can invoke in earthquakes and fires. But with a caveat: The law requires taxpayers "to pay the reasonable value" of any private property the state takes.

Back then, the governor’s office was considering imposing a "pump tax" on all private farm wells to save water, but the stakes were high, said J. Anthony Kline, who served as Brown’s legal affairs secretary in 1977.

"You are talking about a major political interest and what was one of the biggest industries in the state — agriculture," said Kline, now a state appeals court justice. "Any governor, Democrat or Republican, is loathe to impose strict measures on ag. It was a grave decision, and you didn’t want to pull that trigger."

Ultimately, Kline said, Brown’s biggest influence on how California consumes water may hinge more on what he says than what he does.

"It’s politically complicated and legally complicated," he said. "The one thing the governor has that’s most useful is the bully pulpit."

Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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