Implementation of Drought Responses

This is the third installment of our analysis of Chapter 27, the Budget Trailer Bill.  The following describes the provisions implementing the drought responses.

Public education receives special mention in Section 10 of Chapter 27.  Public entities “may” undertake “water conservation in public education programs in conjunction with school districts, public libraries, or any other public entity.” (Water Code 375.7(a).)  Perhaps “may” is not the right word because the state legislature is to receive a report on which public entities provide public education. (Section 357.7(b).)  More importantly, this section says a public entity may take conservation education programs into account “in a rate structure design implemented pursuant to section 357.”  (Section 357.7(c).)  Most water districts have public education programs.  Most water districts take the cost of the programs “into account” as part of their rate structure. This provision is not necessary but it is helpful.

Penalties for violating water conservation regulations are elaborated in Section 11.  Violation of a water conservation program adopted pursuant to Water Code Section 376 is a misdemeanor, if the public entity publishes or posts an ordinance announcing the penalty.  A person convicted of this misdemeanor faces not more than 30 days in jail or a fine not to exceed $1,000, or both.  (Water Code Section 377(a).)  The penalty can become $10,000 if the ordinance is also adopted as an emergency regulation under Section 1058.5 or Water Code Section 377(b).

The remainder of Section 11 explains the penalties.  “[A] person may be similarly liable in the amount not to exceed $10,000 plus $500 dollars for each additional day on which the violation continues commencing on the 31st day after notice of a violation by the public entity.” (Section 377(c.).)  Subsection (b) does not include a 30-day notice requirement.  This subsection could mean a 30-day notice is required to collect something in addition to the initial $10,000 fine.  A more cautious approach is to conclude the 30-day notice is required before the $10,000 fine can be levied.

Local remedies are not available under these provisions if the State Board has filed a complaint under Water Code Section 1848 alleging the same violation. (Section 377(d).)

The fines may be imposed “administratively” by a public entity if the entity issues a complaint and conducts a hearing after 30 days. (Section 377(e).)  The court will review the administrative penalties if an appeal is filed.  The court must take “all relevant factors” into consideration. (Section 377(f).)  The fine for a residential customer cannot exceed $1,000 unless the entity, or the court, as the case may be, finds: (1) the residential user had actual notice of the requirement, which was violated; (2) the conduct was intentional; and (3) the amount of water was substantial. (Ibid.)

Section 11 closes with:  “In addition to the remedies prescribed in this section, a public entity may enforce water use limitations established by an ordinance or resolution…by a volumetric penalty in the amount established by a public entity.” (Section 377(i).)  Until this subsection, the penalties could also be applied for violating use prohibitions, such as gutter flooding, or for water use in excess of an allocated amount.  This subsection is only applicable to excess water use.

Section 12 authorizes enforcement by:  “code enforcement officer,” such as the planning department or building department official; the “designee of the chief executive officer of an entity” authorized to adopt regulations under Section 377 and the “designee of the chief record executive office or over the city or county.” (Section 377.5.) The code enforcement officer has authority even when not “designated” by anyone. The general manager of an entity authorized to adopt conservation regulations can designate an enforcement official even if the regulations are not adopted by the manager’s entity.  City and county officials can be designated by the city manager without approval by the entity adopting the regulations.

by Wayne K. Lemieux

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