California Land Use, Environmental & Real Estate Lawyer & Attorney : Abbott & Kindermann Law Firm : Sacramento, CA

By Katherine J. Hart

In Moss v. County of Humboldt, et al (2008) 162 Cal.App.4th 1041, the Court of Appeal (1st Appellate District) held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts.

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By William W. Abbott

The Delta, the confluence of the Sacramento and San Joaquin rivers, is ground zero in the debate over California water. It seems like everyone has a dog in the fight, including farmers inside and outside of the Delta, municipalities, water contractors, the sport fishing industry and environmentalists. It is a scenario in which it is improbable, if not impossible, to make everyone happy when it comes to the topic of water management. In 1994, CALFED was born as a consortium of 18 federal and state agencies. CALFED’s task was to develop a Delta water management strategy which would positively responsive to the multiple competing interests and concerns. In 2000, CALFED certified a programmatic EIR/EIS. Following a timely legal challenge, the trial court in the case entitled In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 upheld the adequacy of that environmental document. (See the Abbott & Kindermann Land Use Law Blog article on that opinion.) The Court of Appeal ruled otherwise, concluding that the EIR was inadequate because of the failure to evaluate an alternative with reduced water exports, the failure to identify future potential sources of water, and the lack of detail on the Environmental Water Account, a program within CALFED. The Supreme Court subsequently granted review and on June 5, 2008, issued an opinion. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (June 5, 2008) 2008 Cal. LEXIS 6737. In this opinion, the Supreme Court affirmed the legal adequacy of the programmatic document.

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By Cori Badgley

On April 16, 2008, the United States District Court for the Eastern District of California issued an opinion in Pacific Coast Federation of Fishermen’s Associations v. Gutierrez (Case No. 1:06-cv-00245) that invalidated portions of the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) for the Long-Term Central Valley Project and State Water Project Operations Criteria Plan (“2004 OCAP”). The Central Valley Project (“CVP”) supplies water to approximately 30 million people in 200 water districts. The State Water Project “is the largest State-built water project in the country.” Both projects share resources and facilities. The good news is that water suppliers will enjoy the status quo while a new biological opinion is drafted and approved.

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By Janell M. Bogue

The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 addressed the sufficiency of future water supplies for a long-term, large scale development. (See the Vineyard blog article.) In the case of Santa Clarita Organization for Planning the Environment v. County of Los Angeles (November 26, 2007) 2007 Cal.App.LEXIS 1938 (“SCOPE”), the Second Appellate District determined that an EIR for a long-term project met the requirements discussed in the Vineyard case.

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The California Supreme Court has granted review in two important cases dealing with water supply and planning under CEQA. The first, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (Case No. S132972) was covered in a June 2005 Abbott & Kindermann article. The second is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (Case No. S138975) and was discussed in a November 2005 Abbott & Kindermann article. The Supreme Court's opinions in these cases will likely affect all participants in the EIR process and we will update you when they are issued.

For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

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.

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by William W. Abbott

Although never verified as the source, Mark Twain is considered the originator of the quote "whiskey is for drinking and water is for fighting." Had he lived until the enactment of CEQA, perhaps he would have added something to his saying. As land use practitioners know, the water supply/CEQA/Subdivision Map Act interface has raised the bar in terms of what it takes for large development projects to move forward. A repeated challenge in this area is the dichotomy between theoretical water deliveries by the state and federal water contractors and actual deliveries, the difference commonly referred to as "paper water." As readers of this newsletter may remember, a development project EIR analysis of water supply which concludes that adequate water exists based upon paper water is likely to be set aside by a reviewing court (see the March 2003 Abbott & Kindermann article on Santa Clarita Organization for Planning the Environment v. County of Los Angeles). This has been the trend in a number of court decisions going back to at least the year 2000. Jump forward to 2005, and the water supply challenge is neither fixed nor improving, and EIRs are still being successfully challenged.

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by Robert T. Yamachika

The Third District Court of Appeal recently decided a case addressing the interplay of water supply analysis and land use planning. As many readers of aklandlaw working papers already know, the California Legislature adopted Senate Bill 610 (Chapter 643, Statutes of 2001) and Senate Bill 221 (Chapter 642, Statutes of 2001) in 2002 to improve the link between information on water supply availability and certain land use decisions made by cities and counties. SB 610 and SB 221 are companion measures which seek to promote more collaborative planning between local water suppliers and cities and counties. Both statutes require detailed information regarding water availability to be provided to the city and county decision-makers prior to approval of specified large development projects. Both statutes also require this detailed information be included in the administrative record that serves as the evidentiary basis for an approval action by the city or county on such projects. For more on SB 610/221, see Abbott & Kindermann's November 2004 article on the legislation.

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by Diane G. Kindermann Henderson

California's legislature has implemented statutory requirements aiming to remedy the communication gap between water suppliers and municipalities when considering land use planning decisions. Senate Bill 610 and Senate Bill 221 require detailed information regarding water availability to be provided to local decision makers of cities and counties prior to approval of specified large development projects. In addition, both statutes require this information be included in the administrative record to serve as the evidentiary basis for an approval action by the city or county on such projects. The Guidebook for Implementation of Senate Bill 610 and Senate Bill 221 of 2001, prepared by the California Department of Water Resources, is a step-by-step manual providing direction on how to effectively complete a SB 610 water assessment and a SB 221 verification of sufficient water supply.

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by Robert T. Yamachika

Richmond v. Shasta Community Services District (2004) 32 Cal.4th 409

The issue in this case was whether a water district's increase of its two component water connection fees violated Proposition 218's voter approval requirement. Proposition 218, the Right to Vote on Taxes Act, was approved by California voters in 1996 and added articles XIIIC and XIIID to the California Constitution. The Shasta Community Services District ("SCSD") operates a water system for residential and commercial users and a volunteer fire department that provides fire suppression and emergency services.

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by William W. Abbott

On February 27, 2003, the Second District Court of Appeals issued another reminder that "paper water," a phrase used to describe theoretical supplies of contracted water from the state and federal water projects, cannot be assumed to be the same as real water. Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715. The facts involved the continued efforts of the Newhall Land Company to develop a portion of its vast holdings northwest of Los Angeles. The project, West Creek, involved 2,545 housing units, 180,000 square feet of commercial retail space, and 46 acres of community facilities. At issue was the EIR's assessment of water service impacts. Water for West Creek would come from different suppliers.

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