NRDC Sues CA Cities Over Lax Landscape Water Requirements

This week, NRDC filed suit in state courts against the cities of Pasadena and Murrieta for their failure to comply with the California’s Water Conservation in Landscaping Act. In the lawsuits, NRDC alleges that both cities:

• 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; and
• Failed to submit required reports to the state on the content and enforcement of their local landscape requirements.

Across California, the amount of drinking water devoted to landscape irrigation is enormous. In a normal year without drought restrictions, half of all water in urban areas is used outdoors. An estimated 2 million acres of turf grass surround homes and businesses, nearly all of it requiring irrigation. For the state to support a growing economy with reliable supplies of drinking water, it is critical that all new urban landscapes be designed and installed to be water-efficient, as well as attractive.

25 Years of State Policy

In 1992, the California Department of Water Resources (DWR) first published a model ordinance to help guide California’s cities and counties in their efforts to help improve the water efficiency of new landscapes. Known as the Model Water Efficient Landscape Ordinance, or MWELO, the ordinance was flexible to allow for creative and attractive designs for new landscapes. However, local adoption and enforcement was uneven. At the direction of the Legislature, in 2009 MWELO was strengthened and communities were given the choice to adopt MWELO or to adopt a locally-written ordinance that would be at least as effective in conserving water. If a community took no action, State law required that MWELO be enforced nevertheless. By late 2010, hundreds of localities reported that they had adopted MWELO, while somewhat fewer reported the adoption of a locally-written landscape ordinance.

Sleeping Through their Alarm

The drought of 2014-2016 was the most widespread and severe water shortage since California became a state, and is widely considered a wake-up call to the effects of climate change on the state’s water system. At the height of the drought emergency in 2015, Governor Brown issued an Executive Order directing DWR to strengthen MWELO further. After public hearings, a third edition of MWELO was published, with changes effective as of December 1, 2015. Local jurisdictions were required to adopt these new and stronger landscaping standards, or adopt local ordinances that are at least as effective, and start reporting on their implementation on an annual basis. Hundreds of communities responded to the State’s call to act. But other local governments, including Pasadena and Murrieta, ignored MWELO’s new water-saving requirements, an action (or more accurately, a failure to take action) that will result in the waste of millions of gallons of water.

How California’s Landscape Regulations Save Water

Although people manage landscapes differently over time, MWELO applies to the design and installation of new and renovated landscapes so that efficient water use is possible and practical for that location, and thus new landscapes are less likely to waste water. The water savings achieved by MWELO are largely attributable to a “water budget” that is calculated on a worksheet submitted by the applicant for each landscape. The water budget concept allows for flexibility in the selection of plant material and irrigation equipment, provided that the resulting landscape can thrive while using the water budget calculated for the site. The worksheet generates a maximum water allowance that the landscape must be designed to operate within. MWELO also takes into account the differences in climate across California through the use of location-specific adjustments based on the known influences of climate on plant water use. This allows MWELO to be adopted and applied by local jurisdictions throughout the state, even those with very different climates.

Serious Shortcomings in Local Landscape Ordinances

Jurisdictions that adopt a locally-written alternative to MWELO must ensure that their ordinance is at least as effective in saving water as MWELO. NRDC has reviewed numerous examples of these local water efficient landscape ordinances (WELOs) and found many of them to be lacking. Some jurisdictions failed to revise their WELO to meet the new standards in the 2015 MWELO, while others failed to meet the required standards even after revising their local ordinance.

Here are some of the most common shortcomings in local WELOs that my colleague Susan Lee and I found:

1. Failure to meet the required adoption date: Local agencies were required to adopt the updated MWELO or an equally effective local ordinance by January 1, 2010. After the 2015 revision from DWR, local agencies were once again required to adopt the updated MWELO or an equally effective ordinance by December 1, 2015.
2. Failure to meet size thresholds for landscapes that are subject to regulation: MWELO applies to any new landscape project with an area of 500 square feet or more, and to any landscape renovation of 2,500 square feet or more. Some municipalities have set higher size thresholds, which means that their WELO applies to fewer projects than MWELO.
3. Failure to adopt new water application limits: Each landscape covered by MWELO must meet a performance standard known as the evapotranspiration factor (ETAF), a combined measure of the efficiency of the landscape’s irrigation system as well as the amount of water that evaporates from the landscape’s soil and transpires from the leaves of its plants. A landscape that conserves water by using more water-efficient plants and a more efficient irrigation system has a lower ETAF. The 2015 version of MWELO requires an ETAF of 0.55 for residential landscapes and 0.45 for commercial landscapes, which is more stringent than the ETAF value of 0.7 included in the 2009 version, and results in allowable water use that is 21 and 35 percent lower, respectively, for residential and commercial landscapes.
4. Failure to require the installation of dedicated landscape water meters: Dedicated landscape water meters measure the amount of water applied specifically to the landscape, and thus are highly useful for confirming the efficiency of irrigation and the avoidance of water waste. MWELO requires that a dedicated landscape water meter be installed for all non-residential irrigated landscapes of 1,000 square feet or more, and all residential irrigated landscapes of 5,000 square feet or more. Ordinances that either have no requirements for dedicated landscape meters at all, or set their requirements at higher size thresholds, mean that they require dedicated meters in fewer instances than MWELO.
5. Failure to ensure an objective irrigation audit: After installation of a landscape project, MWELO requires that an irrigation audit report be submitted, to confirm that the landscape was installed as planned and the irrigation system is working properly. MWELO prohibits such landscape audits from being conducted by a person who either designed or installed the landscape, to avoid potential conflicts of interest.

These deficiencies open up critical gaps in the ordinance’s protection against water waste. Their presence in any local WELO, such as those of Pasadena and Murrieta, are clear signs of a failure to comply with California’s Water Conservation in Landscaping Act.

Failure to Report is Widespread

When DWR revised MWELO in 2015, one important addition was the requirement for all local agencies to report on the scope and enforcement of their landscape ordinance on an annual basis. (The 2009 MWELO had required only a one-time report in 2010.) For the first time, short but detailed standardized reports are to be filed by all agencies regarding matters such as the specifics of local variations from MWELO, the agency responsible for implementation, procedures for project review, procedures for compliance verification, enforcement actions, and square footage of landscape projects reviewed. Analysis of this information will bring local agency enforcement into focus, and help spot geographic or programmatic gaps in the effectiveness of MWELO in saving water.

However, after reviewing the 2015 reports from local agencies, we found large numbers of local agencies that have failed to submit the required reports. In California, there are 484 cities and 58 counties, which totals to 542 local jurisdictions that are responsible for implementing MWELO or an equally effective local WELO. However, after analyzing the number of jurisdictions that reported to DWR of their MWELO and WELO adoption status, we found that only two-thirds of the jurisdictions had reported in 2010 and only one-third submitted their report for 2015. A striking 354 jurisdictions did not report on their adoption status.

Other Local Governments Should Take Heed

Pasadena and Murrieta are clear examples of local jurisdictions failing to meet their responsibilities under California’s Water Conservation in Landscaping Act to ensure that new landscapes are water-efficient. However, they are far from alone. The lawsuits filed this week involving these two communities should encourage many other local agencies to review their own landscape regulations and ensure that they measure up to current state standards. They should document their progress in their reports to DWR, and share these reports with their own citizens. In the California of the 21^st Century, saving water and avoiding waste is not an option – it needs to become, as Governor Brown has put it, a California way of life.