California drought: Why is there no mandatory water rationing?

San Jose, Calif. • Fourteen months into a historic drought, with reservoirs running low and the Sierra snowpack 27 percent of normal, a growing number of Californians are wondering: Why isn't everyone being forced to ration?

So far, Gov. Jerry Brown and most major water providers, from the Bay Area to Los Angeles, are calling for voluntary cuts — not mandatory rationing with fines for excessive use.

"I've been astounded," said Jay Geis, a Cupertino sales executive who said his friends and neighbors also are surprised by the lack of urgency. "Just drive by any reservoir and it's horrifying. It doesn't take a rocket scientist to understand we're in a drought."

Yet when it comes to water in California, there's no one-size-fits-all answer to explain why rationing hasn't taken hold. While three utilities provide 80 percent of Californians' electricity, there are roughly 3,000 water providers statewide, all with different rules, political realities and needs.

Some are cities. Some are corporations. Some are farm districts pumping from wells. Some have significant amounts of water stored up and some don't. But all of their bottom lines depend on selling water, not conserving. And as difficult as the economics of rationing are, the politics may be even more complex.

"Generally people prefer voluntary to mandatory conservation," said Jeff Kightlinger, general manager of Metropolitan Water District, which provides water to 19 million people in the Los Angeles and San Diego areas. "They don't like being dictated to. If we go to mandatory in February and it rains solid in March and we say 'never mind,' people won't listen. We want to save the big hammer for when we know it's really bad."

Local agencies can order rationing. So can governors. But no California governor has ever ordered mandatory water rationing statewide, and there are huge legal questions about how it would work or whether any governor could even enforce the rules, particularly on farmers and their private wells.

"Most of the power in water management is at the local level," said Jay Lund, a professor of civil and environmental engineering at UC Davis. "Oftentimes you can get 10 or 20 percent water conservation out of a serious voluntary effort. It's less costly and is less of a political headache for most agencies. That's why they want to do voluntary first."

SOME CRACKDOWNS

A few communities have embraced strict rules. On Jan. 28, the St. Helena City Council ordered mandatory rationing, limiting each house to 65 gallons a person per day — one-third the state average — with warnings for first offenses, then fines of $374 for every 748 gallons above the limit. For the fifth offense, the fines triple.

"The message to the public right now is, 'Hey, no more kidding around.' We need to be very, very serious," Mayor Ann Nevero said that day. Within two weeks, city water use fell 33 percent.

Sacramento enacted 20 percent "mandatory" restrictions. But because half the homes there still don't have water meters, the city has no way to set water limits and fine users. Instead, city leaders limited days for landscape watering, and staff members issue tickets of up to $1,000 to violators.

Most Bay Area residents have only 10 percent voluntary restrictions in place — including all the customers of the Santa Clara Valley Water District, East Bay Municipal Utility District and San Francisco Public Utilities Commission, which supplies Hetch Hetchy water. Some locals say it's time to go further.

"People in the government agencies don't understand how bad it could be," said Vincent Lui, a retired engineer in Los Altos who suffered through severe water shortages 60 years ago while growing up in Hong Kong. "They don't seem to be taking this thing too seriously. We need to get tough quickly. We need to hit people where it hurts, in the pocketbooks."

REASONS WHY

Experts say there are several key reasons why mandatory rationing is rare.

First, most big urban districts are in better shape now than during the last major drought from 1987 to 1992. They have increased conservation and supplies.

"We're light years away from then," said Kightlinger.

In the past 20 years, Los Angeles' Metropolitan Water District built the massive Diamond Valley reservoir in Riverside County, a $2 billion project that stores enough water for 5 million people a year. By expanding recycled wastewater and pushing conservation measures, the district delivered 25 percent less water last year than in 1990, even though the population grew by 5 million people.

The Contra Costa Water District in 1998 built Los Vaqueros Reservoir, which holds enough water for up to 800,000 people a year. And over the past 20 years, the Santa Clara Valley Water District has methodically stored nearly two years' supply underground.

Second, when people use less, agencies' revenues drop.

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.

"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."

GOVERNOR'S POWER

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.

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."