Yes, the State Water Resources Control Board has “proposed emergency adoption of section 996, subdivision (b), prohibits the irrigation, with potable water, of non-functional turf in the commercial, industrial, and institutional sectors statewide…” I, of course, thinks this is a gloriously dumb idea and told them so. Here is my letter to them.
May 21, 2023
Courtney Tyler
Clerk to the Board
State Water Resources Control Board
PO Box 100
Sacramento, CA 95812-0100
Comment Letter – Emergency Regulation to Ban Decorative Grass Watering
Dear Chairman Esquivel and State Water Board members, I hope this letter finds you well. I am writing to express my strong opposition to the proposed emergency regulation that aims to ban the watering of commercial lawns. While I understand the need to conserve water resources, I believe that this measure is potentially dangerous, unnecessary, a regulatory faux pas given the current water conditions and historical data; and, as such it erodes respect for our rule of law and our criminal justice system. Please, allow me to elaborate on these points.
The commercial watering ban is potentially dangerous: As you are aware, every law, regulation, and ordinance, is a command to stop doing something the person wants to do, or to make a person do something the person does not want to do; and these commands are backed up by people with guns. In this case, it is telling commercial landowners that they may not use water, legally purchased, for lawn care. The potential for heated tempers and escalation, or simply mistaken actions can, and has, led to fatal encounters with law enforcement. Black Lives Matter began as a response to fatal police encounters for minor offenses. Stephen L. Carter, a professor at Yale Law School wrote, “On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce …. I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.”
A regulatory faux pas: The proposed ban is being presented as a regulation to address an immediate emergency. “The State Water Board finds that an emergency exists due to drought conditions and that adoption of the proposed emergency regulation is necessary to address the emergency.” However, as of May 17, 2023, the state’s snowpack stands at 150 percent of normal, and reservoirs are at 105 percent capacity. Additionally, Tulare Lake, which has not experienced flooding since 1938, is currently flooded. These facts clearly indicate that we are not facing an immediate emergency in terms of water scarcity. Certainly, it appears to the average person as histrionic, and haste does not appear warranted given the current conditions. Therefore, hurriedly implementing such a drastic measure as a commercial lawn watering ban seems disproportionate, unjustified, and frankly silly.
It can erode respect for our rule of law and our criminal justice system: While a ban may feel like an accomplishment it is corrosive to the rule of law. By banning an act that had previously been legal and making that once legal act punishable by the state, you make honest individuals into criminals overnight. There are antecedents that give me pause, such as The Great Experiment: Prohibition. Of Prohibition, preacher Billy Sunday said, “The reign of tears is over. The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and corncribs. Men will walk upright now, women will smile, and the children will laugh. Hell will be forever for rent.” Bans, history shows, impose immense economic and social costs, yet they don’t achieve their policy aims, all the while fostering violence, corruption, and black markets along the way–other than that, bans work perfectly.
This ban appears to be merely performative, without significant impact on overall water conservation efforts. It seems silly and ham handed. The data show that in dry years, urban (domestic and commercial) water usage accounts for 11 percent of the available water usage, equivalent to 6.73 million acre-feet (MAF). Even in wet years, when water availability increases, urban usage remains relatively low at 8 percent (8.32 MAF). What data are you relying on that shows that commercial lawn watering is a huge waste of water, and that this regulation will make any kind of dent in overall water consumption?
On May 20, the San Francisco Chronicle questioned proposed hikes of water rates, “All that rain and snow captured in California’s reservoirs this year means plenty of water to go around. But it isn’t doing anything to reduce your household water bill.” Given this backdrop of an emergency not being obvious, if I were a commercial owner, I would simply put a “Watered with Recycled Water” sign on the lawn and keep watering. The sign is even factually correct. All water on earth has been recycled.
Our Bill of Rights proscribes the government’s depriving life, liberty, and property without due process, and taking property without just compensation. While this watering ban may not be classed as a taking, there is ample case law to argue pro or con, it is certainly immoral, in that a property right an owner had before will be removed retroactively, if the Water Board thinks it is a good idea.
Let’s assume for argument’s sake, watering of commercial lawns represents half of overall water consumption, the savings of all water in California would 4 to 5.5 percent, leaving more than 90 percent of water untouched. Obviously, the percentage is much, much smaller. Implementing a ban on lawn watering without addressing other major sources of water consumption (environmental and agricultural) seems arbitrary and ineffective, and frankly, mean spirited.
Summary: The United States were founded on the Enlightenment ideal of pluralism where people holding differing beliefs, creeds, ideologies, aesthetics, etc., would coexist peacefully. Telling people how to run their businesses down to how they might use a product they purchased legally is anti-pluralistic. I understand the temptation to believe that government power can be a substitute for the hard labor of cultural change. It isn’t. The change begins with discussion—on the front porch, around the kitchen table, and in the mirror. The law is not a magic wand. There are no magic wands. There is only the hard work of suasion.
Instead of imposing a sweeping ban on lawn watering, I urge you to consider alternative strategies that can achieve meaningful water conservation while respecting the needs and rights of individuals. For instance, promoting education campaigns to raise awareness about water-efficient irrigation methods, encouraging the use of drought-resistant plants, and providing incentives for homeowners to install water-saving technologies are all viable options.
In conclusion, I respectfully request you to reconsider the proposed emergency regulation banning the watering of commercial and industrial lawns. The current water conditions, coupled with the relatively minor impact on overall water usage, make such a ban counterproductive. Let us focus our efforts on comprehensive, long-term solutions that address all sectors of water consumption while promoting responsible water stewardship.Thank you for your attention to this matter. I trust that you will take my concerns into consideration, and I remain available for any further discussion or clarification.
Nullius in Verba 