By Scott Slater and Courtney Davis of Brownstein Hyatt Farber Schreck, L.L.P.
Passage of the Rainwater Recapture Act of 2012 affords residential users and private and public entities with a new source of on-site water supply, which should reduce reliance on potable water for landscaping needs and provide a recharge benefit to underlying groundwater aquifers.
Californians may now legally capture and use rainwater harvested from rooftops. Departing from Western states' long-standing tradition of making it illegal to capture and use precipitation based on the prior appropriation doctrine, the California Legislature enacted and Governor Brown signed the "Rainwater Capture Act of 2012" [2012 Cal. Stats. ch. 537, Sec. 2.] (the Act). The Act exempts the capture and use of rainwater from rooftops from the State Water Resources Control Board's (SWRCB) permitting authority over appropriations of water. This development affords residential users and private and public entities with a new source of on-site water supply, which should reduce reliance on potable water for landscaping needs and provide a recharge benefit to underlying groundwater aquifers.
Summary of the Act
Prior to enactment of the Act, the SWRCB required all would-be appropriators to apply for and obtain a permit to appropriate water from any source, including water falling in the form of precipitation. Under the Act, however, the use of rainwater - defined as "precipitation on any public or private parcel that has not entered an offsite storm drain system or channel, a flood channel, or any other stream channel, and has not been previously been put to beneficial use" - is not subject to the California Water Code's SWRCB permit requirement [California Water Code §§ 1200 et seq.] Relief from the permit requirement enables residents, private businesses, and public agencies to create new on-site water supplies to meet landscaping needs, thus decreasing the use of potable water to meet those needs. The language of the Act recognizes that it may contribute to attainment of the state-wide "20x2020 goal", which aims to achieve a 20 percent reduction in urban per capita potable water demand by December 31, 2020. [2012 Cal. Stats. ch. 537, Sec. 2.]
The Act further provides that it is not intended to alter or impair existing rights, change existing water rights law, affect the use of rainwater on agricultural lands, or impair the authority of water suppliers to protect the public health and safety of public water supplies as authorized by California law.
Surprisingly, the Act explicitly defines certain terms - "developed or developing lands" and "rain barrel system" - although they are not used in the newly added Water Code sections. This suggests that in the future the Legislature may seek to expand and/or further define the scope of the Act.
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Scott Slater is a shareholder in Brownstein Hyatt Farber Schreck, L.L.P., the nation's leading water practice firm. Mr. Slater is also CEO of Cadiz, Inc. and on the Company's Board of Directors, and is also on the board of Limoneira Company. He is a veteran water rights attorney with over 27 years of experience in the water industry. He has served as lead negotiator on a number of important water transactions, including the negotiation of the largest conservation-based water transfer in U.S. history on behalf of the San Diego County Water Authority. Mr. Slater is also the author of California Water Law and Policy, a two-volume treatise on the subject, and has taught law and graduate courses at Pepperdine University, the University of California, Santa Barbara and the University of West Australia.
Courtney Davis is an Associate in Brownstein Hyatt Farber Schreck's Santa Barbara office. Courtney represents public and private sector clients in the water industry. Her practice covers a broad range of water issues, including water rights permitting, regulatory compliance, and basin management planning.
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