MWELO Just Got Real: Lawsuits Over California Residential Water Use
Author: Chad Kennedy, Landscape Architect
Years ago I sat at a conference table across from a municipal client educating them on the complexities of what, at the time, was a new, unfunded mandate by the State of California to limit landscape water use. The new regulations were developed primarily in response to the drought conditions that have historically plagued the State and in cyclical fashion return to the forefront of conversation and politics. This client asked a straight forward question that if used in a novel would be perfect foretelling dialogue. The question was, "Since there is no reporting required, does it really matter if we follow or adopt the Model Water Efficient Ordinance (MWELO)?" My response to them was simple; no one is watching right now, but at some point, the public and/or the State will be paying attention and it would be wise to have an ordinance in place and be enforcing it at that time. As fate would have it, that was accurate counsel. In December 2017, lawsuits were filed with the State against two California municipalities who allegedly did not follow the mandates related to AB1881, the State of California's Model Water Efficient Landscape Ordinance.
Lawsuit Details - According to the Natural Resources Defense Council (NRDC) who filed the two lawsuits with Superior Courts in Los Angeles and Riverside Counties in December, the Cities of Pasadena and Murrieta allegedly:
- "Failed to adopt new landscaping standards by December 1, 2015, as required by law."
- "Issued permits for hundreds of housing units and associated landscaping since December 1, 2015, without applying the state-required standards intended to prevent the waste of water in new landscapes."
- "Failed to submit required reports to the state on the content and enforcement of their local landscape requirements."
The NRDC is demanding that if the allegations are found to be accurate, that the courts:
- "Require the cities of Pasadena and Murrieta enforce the 2015 MWELO in the absence of the adoption of a local ordinance that is at least as effective at conserving water."
- "Require the cities to submit to the Department of Water Resources, the agency that oversees MWELO, all outstanding annual reports, including those for the calendar years 2015 and 2016."
- "Issue a permanent injunction prohibiting the cities from issuing any new building permits, to which the Act's requirements would apply, until the City has adopted the 2015 MWELO or a local ordinance that is at least as effective in conserving water."
- "Order the cities to account for and offset excessive water use resulting from their failure to comply with the Act."
WELO Requirements - State water regulations are not new to the California landscape. As early as 1992, the Water Efficient Landscape Ordinance existed providing guidance regarding effective methods for reducing water consumption. This ordinance however was widely unknown and even more widely ignored. Then In 2009, a more stringent version of the document was released with a mandate for municipalities and governing water agencies to adopt the minimum base standard ordinance or develop and adopt a more stringent version. At the time, many municipalities were dealing with effects from a ravaged economy, and due to limited resources and staffing, struggled to adequately address the issue. The ordinance did not go away, and in 2015 as a response to sever drought conditions, an even more stringent version of MWELO was activated and municipalities were required to adopt it. Included in the new version were requirements such as:
- New construction projects equal to or greater than an aggregate 500 s.f. of landscape area are subject to the ordinance. (In the 2010 version this was 2,500 s.f. commercial / 5,000 residential.)
- Rehabilitation projects equal to or greater than an aggregate 2,500 s.f. of landscape area are subject to the ordinance. (In the 2010 version this was not an aggregate s.f.)
- A prescriptive approach can be used for landscapes smaller than 2,500 s.f. (In the 2010 version there was no prescriptive method.)
- A water meter is required on all non-residential landscapes over 1,000 s.f. and residential landscapes over 5,000 s.f. (This did not exist in the 2010 version.)
- Flow sensors are required on all non-residential landscapes and residential landscapes over 5,000 s.f. (This was just a recommendation in the 2010 version.)
- Master shut-off valves are required on all projects except landscapes that make use of technologies that allow for the individual control of sprinklers. (This did not exist in the 2010 version.)
- All sprinkler heads must meet a 65% or higher efficiency. (This did not exist in the 2010 version.)
A more in depth summary of the 2015 changes to the ordinance can be found in the January 2016 issue of LAND Connections titled, "Landscape Irrigation Ordinance Restrictions Are in Effect - Are you Ready?". Additionally, since 2015, much discussion has been taking place between the Department of Water Resources (DWR), special interest groups, and stakeholders about the State's current model ordinance. Multiple revisions are planned in the next version, which is tentatively scheduled for release by the end of this year. With this release will surely be an additional requirement for reporting of its adoption by all California jurisdictions.
WELO Compliance - According to State data, there are 58 counties and 482 municipalities in California that are required to submit compliance reports to the DWR. Unfortunately, according to the DWR website, only 192 jurisdictions have submitted documentation showing adoption or plans to adopt the ordinance. However, this does not address which jurisdictions are actually enforcing the ordinances. The NRDC reports that in their research, only a third of jurisdictions have participated in the mandatory reporting requirements.
These numbers should be alarming, particularly now that allegedly non-compliant municipalities are facing litigation. Litigation of this nature results in the distraction of resources away from important issues and efforts to conform to State regulations. If recent difficulties faced during the drought event aren't enough to cause a shift in philosophies on water use, then this next phase into litigation is sure to capture the attention of those jurisdictions who have not been paying attention.