State Water Resources Control Board Issues Notice Of Plan To Temporarily Lift Curtailments During Future Rainfall Events

By Glen C. Hansen

On May 27, 2014, the State Water Resources Control Board (“Board”) issued curtailment notices to all post-1914 appropriative water right holders in the Sacramento-San Joaquin, Russian, and Eel River watersheds. On October 3, 2014, the Executive Director of the Board issued a letter to appropriate water rights holders that discussed the Board’s plan to temporarily lift such curtailments during future rainfall events. (The letter is found at http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/curtail_lift.pdf.) Because the conditions in many of the State’s watersheds “continue to demonstrate that there is insufficient water available to meet reported demand,” the Board intends to “temporarily lift curtailments during significant storm events to capture new precipitation.” The Executive Director explained that policy as follows: 

Due to the possibility for prolonged dry conditions, the State Water Board does not want to limit the potential for water right holders in the curtailed watersheds to collect water to storage during near-term substantial precipitation events. If dry conditions persist, then it is in the public interest to maximize the amount of water diverted to storage for later beneficial use, particularly given the low storage levels at the outset of the water year. Until the time when curtailments are permanently lifted based on the water availability/demand analysis, the State Water Board plans to provide notice of periodic opportunities during storm events to divert water. Since such notices will be reactive to precipitation events, the State Water Board’s notices will be distributed on a real-time basis solely via email through the Drought email subscription available at: http://www.waterboards.ca.gov/resources/email_subscriptions/swrcb_subscribe.shtml (select Water Rights and then Drought Updates). Notices will not be mailed out. Should the State Water Board temporarily lift curtailments, you will be authorized to immediately divert water under your post-1914 right, provided your right authorizes diversion at that time and you comply with all other terms and conditions of your right. You are responsible for monitoring your email account and taking immediate action to cease diversion of water under your post-1914 rights should the State Water Board send a follow-up curtailment notice. Failure to cease diversions after that notice will be subject to enforcement.

The State Water Board considers implementation of this real-time early precipitation plan in the public interest because it increases water storage supplies at every opportunity. The State Water Board also considers the potential for injury to most senior water right holders to be minimal. The lifting of curtailment, however, does not release junior water right holders from the standard obligation to allow water to pass for senior diverters when they must do so to satisfy senior water rights. For this reason, water right holders should maintain a record of daily diversions in case a complaint by a senior right holder alleges injury resulting from the diversions. The State Water Board will request such records if complaints are received. Water right holders should monitor the State Water Board’s email notices and/or website to take advantage of these temporary actions. [Bold and italics added.]

Appropriative water rights holders are therefore urged to make sure the Board has their accurate email addresses, and to monitor all correspondence from the Board (or frequently check the Board’s website when there is the possibly of rain in the forecast).

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

 

 

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NEW CLASS - Napa Wine Law Class - Analyzing The Potential Of Winery And Vineyard Property

Join Diane G. Kindermann and Brian Russell of Abbott & Kindermann, LLP, in a new class which will provide the attendee with current issues and solutions to consider when analyzing the feasibility of a winery or vineyard property. This half day program will cover how local, state and federal laws could restrict or enhance your intended uses. For example, the class will provide an overview on how the California Environmental Quality Act, the Napa County General Plan, and the Napa County Winery Definition Ordinance govern the permitting process. Insight into California water law, the Endangered Species Acts, and how cultural resources could impact your plans for your land will also be included. Abbott & Kindermann, LLP will provide strategies and recommendations for achieving your desired entitlements, working with local planning staff and managing potential opponents to your project. Finally, this class will identify shifting patterns of regulations applicable to vineyards and winery approvals to anticipate in the upcoming years.

Cost $85.00

Location and Time

November 18, 2014, 8:30 a.m.-11:30 a.m. (To Register Click Here)

Villagio Inn & Spa, 6481 Washington Street, Yountville, CA 94599

Sign in:           8:30 a.m.

Class:              9:00 a.m. – 11:30 a.m.

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 2.25     CM 2.25

 

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DWR to Host Informational Webinar Sessions for Incorporating Flood Risk into Local General Plans

The California Department of Water Resources (DWR) will host two informational webinar sessions on the recently released Guidance on General Plan Amendments for Addressing Flood Risk (September 2014). The Guidance document was developed to assist cities and counties within the Sacramento-San Joaquin Valley amend their general plans to address flood risk (Senate Bill 5 (2007) as amended in 2012). The Guidance includes a comprehensive reference with more than 50 sources of flood management data and information from government agencies about projects, programs, and databases that can benefit planners, floodplain managers, and public works professionals.

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When It Comes To CEQA, It's Good To Be The King er, I Mean The Governor

By William W. Abbott

Picayune Rancheria v. Brown (September 24, 2014, C074506) ___ Cal.App.4th ___.

Practitioners are familiar with the incredible breadth in the applicability of CEQA to numerous governmental agency actions. Agencies have been admonished by the California Supreme Court against early commitments to projects in advance of environmental review (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116) although non-binding commitments are not “projects’ necessitating CEQA review. (Cedar Fair, Inc. v City of Santa Clara (2011) 194 Cal.App.4th 1150) [link 2]  Apparently, if you are the Governor you have even less to worry about. 

This issue of the Governor’s obligation to follow CEQA was brought to a head when a tribe operating an existing casino sued the Governor on CEQA grounds when the Governor concurred in a determination by the United States Department of the Interior that a new casino would be in the best interest of the Indian tribes and would not be detrimental to the surrounding community. Immediately following the concurrence determination, the Governor entered into a gaming compact with the interested tribe sans CEQA review, resulting in the CEQA challenge by the tribal gaming competitor. No CEQA worries here according to the trial and appellate court, as the Governor is not subject to the California Environmental Quality Act. The appellate court reached this conclusion based in part on the omission of the Governor from the definition of public agency in CEQA, along with the CEQA carve out created by the Legislature for tribal gaming compacts.

Label me a cynic perhaps, but this decision invites a minor digression about the illusive Holy Grail of CEQA reform. In recent years, the Legislature has responded to the desperate cries for help for a very vulnerable group; the owners of professional sports organizations. Apparently the Legislature is convinced that these downtrodden entrepreneurs are clearly entitled to preferential treatment, but that this treatment should not be shared with the public at large. Now that it is clear that the Governor is exempt from CEQA, what motivates reform? As the saying goes, ah it’s good to be the king.

William Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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REMINDER - NEW CLASS - Update on Easement Law and Boundary Disputes

Join Glen C. Hansen of Abbott & Kindermann, LLP, in a new class which discusses recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three‑hour class interprets and applies:

  • Easement Creation and Termination
  • Determining the Scope of an Easement
  • Locating and Maintaining Boundary Dividers
  • Resolving Conflicting Surveys
  • Recently Enacted and Pending Legislation

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is a Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00

Locations and Times

Roseville – October 17, 2014, 8:00 a.m.-12:00 p.m. (To Register for the Roseville Location Click Here)

Holiday Inn Express & Suites - Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

916-774-6060

Fairfield – October 24, 2014, 8:00 a.m.-12:00 p.m. (To Register for the Fairfield Location Click Here)

Hilton Garden Inn – Fairfield, 2200 Gateway Court, Fairfield, CA 94533

707-399-2441

Sign in:           8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

2014 CEQA 3rd QUARTER REVIEW

 By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2014 3rd Quarter CEQA update, cumulative for the year. The newer decisions are highlighted in bold font. Although the Supreme Court issued its decision on limitations and CEQA (Tuolumne Jobs & Small Business Alliance v The Superior Court), the court granted preview in another CEQA case, resetting again the number of CEQA cases pending at the court at six. Among other decisions, the appellate court concluded that the Governor was not subject to CEQA on certain tribal gaming decisions (Picayune Rancheria v. Brown), parsed another negative declaration finding only one flaw (Rominger v. County of Colusa), and addressed an important litigation question as to when the agency can recover record-related litigation costs (Coalition for Adequate Review v. City and County of San Francisco). To read the prior year cumulative CEQA review, click here: 2013

CLICK HERE TO ACCESS THE COMPLETE 2014 3RD QUARTER CEQA UPDATE.

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NEW CLASS - NAPA WINE LAW CLASS - ANALYZING THE POTENTIAL OF WINERY AND VINEYARD PROPERTY (FROM ZONING TO COMMON SENSE)

Join Diane G. Kindermann and Brian Russell of Abbott & Kindermann, LLP, in a new class which will provide the attendee with current issues and solutions to consider when analyzing the feasibility of a winery or vineyard property. This half day program will cover how local, state and federal laws could restrict or enhance your intended uses. For example, the class will provide an overview on how the California Environmental Quality Act, the Napa County General Plan, and the Napa County Winery Definition Ordinance govern the permitting process.  Insight into California water law, the Endangered Species Acts, and how cultural resources could impact your plans for your land will also be included.  Abbott & Kindermann, LLP will provide strategies and recommendations for achieving your desired entitlements, working with local planning staff and managing potential opponents to your project.  Finally, this class will identify shifting patterns of regulations applicable to vineyards and winery approvals to anticipate in the upcoming years.

Cost $85.00

Location and Time

November 18, 2014, 8:30 a.m.-11:30 a.m. (To Register Click Here)

Villagio Inn & Spa, 6481 Washington Street, Yountville, CA 94599

Sign in:           8:30 a.m.

Class:              9:00 a.m. – 11:30 a.m.

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 2.25     CM 2.25

BLOG UPDATE: Yesterday, October 1, 2014, the California Supreme Court granted the Real Party in Interest and Respondent Friant Ranch, L.P.'s petition for review in Sierra Club v. County of Fresno

Yesterday, October 1, 2014, the California Supreme Court granted the Real Party in Interest and Respondent Friant Ranch, L.P.’s petition for review in Sierra Club v. County of Fresno regarding its master planned project approved by the County of Fresno earlier this year.  For more information on this case, go to:  http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2081570&doc_no=S219783

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Tags:

REMINDER - NEW CLASS - Update on Easement Law and Boundary Disputes

Join Glen C. Hansen of Abbott & Kindermann, LLP, in a new class which discusses recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three‑hour class interprets and applies:

  • Easement Creation and Termination
  • Determining the Scope of an Easement
  • Locating and Maintaining Boundary Dividers
  • Resolving Conflicting Surveys
  • Recently Enacted and Pending Legislation
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Permissible CEQA Mitigation Includes Reliance Independent Agency Regulatory Review

By William W. Abbott

A continuing reoccurring question for CEQA practitioners is: when is it appropriate to rely upon the regulatory scheme and permitting steps of independent regulatory agencies? The most ready criticism of that practice is that it involves deferred mitigation. That criticism has to be balanced against the recognition that subsequent to the enactment of CEQA, that there now exists a myriad number of local, state and federal regulatory agencies with special regulations and expertise and CEQA should integrate with existing regulatory practices where issues overlap. As the decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360 illustrates, perhaps an easier case can be made for regulatory reliance when a CEQA lead agency relies upon a federal agency with exclusive regulatory authority.

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