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by Wayne Lusvardi Pasadena An oft-repeated phrase used by public agencies in California to market water conservation programs is to “be water wise.” But recent punitive water conservation policies being enacted at the municipal level in California in response to California’s “perfect storm” of a physical and political drought reflect what might more appropriately be called “water wisdumb.” Northern California is presently suffering from a “perfect storm” of a physical and a political drought. A judge has shut down water shipments to Southern California through the state water interchange in the Sacramento Delta because a tiny fish, the Smelt, reportedly has vanished purportedly due to the action of the pumps on the California Aqueduct. No mention has been made by environmentalists that the Delta Smelt, like the Three Spine Stickleback fish, plausibly may have gone into hiding to protect themselves from natural predators due to man-made improvements in Delta water quality. Because of this “perfect storm,” local municipalities in Southern California now must reduce water usage by 20% or face higher wholesale water rates or other sanctions. In response, cities such as Los Angeles and Pasadena are enacting fines ($50 or more) for the following water wasting practices: 1. Hosing or washing sidewalks, driveways or parking areas. 2. Filling decorative fountains, ponds, etc. unless equipped with water recycling system. 3. Serving drinking water at restaurants and other commercial establishments, unless customer requested. 4. Failing to repair leaks in plumbing or sprinkler systems. 5. Allowing water to run off from landscaping areas into streets. 6. Allowing water to run off from washing vehicles. 7. Watering landscaping from 10 a.m. to 5 p.m. 8. Filling or refilling swimming pools. The emphasis on water saving efforts is on the highly visible measures that might provide bad photo ops for the media. However, cities run the risk of being notoriously embarrassed if they fine residents and businesses who have reduced water use for example by 20% to 50%, but are caught hosing their walks! Could such unreasonable fines be considered an illegal "taking" without public necessity in violation of the 5th Amendment to the U.S. Constitution? Even if such a practice is legal, it may be perceived by the public as abusive as eminent domain. Any City enacting such a water conservation ordinance should consider including a circuit breaker clause which would commute fines if a resident or business owner has reduced overall water use by 20% or more. Local water agencies and City councils have failed to address another potential political embarrassment - fining residents for wasting water when their water rates are already illegally overcharged in violation of Proposition 218 in order to subsidize the City's General Fund budget. Many cities in Southern California, such as Pasadena, continue to illegally overcharge for domestic water and divert the excess into their General Funds for essential public services without first obtaining a vote of the electorate. Even shrewd politicians would not want to add a fine on top of an illegally overloaded water rate. Most residents are not even aware that their water rates are illegally overcharged. Drawing attention to this illegal tax might backfire or provoke a lawsuit. Even Niccolo Machiavelli, the 15th Century Italian who wrote the book on political shrewdness (“The Prince”) said it is better for a politician to be perceived merciful than cruel and to avoid rapaciousnes and unjustly seizing the property of their subjects. The rank amateurs at Southern California’s city halls should reconsider their proposed unthinking punitive water conservation policies. The negative political perception that might result from such overkill water ordinances is critical especially since even Southern California liberal water activist Dorothy Green has recently stated in the Los Angeles Times that the so-called water shortage is artificial and political. New punitive water conservation ordinances may be “water wise” but they may also indicate that there is no drought on political wisdumb in California. CRO copyright 2008 Wayne Lusvardi

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