California's Water Lexicon Expands

The following article by Diane Kindermann was published by the Orange County Lawyer Magazine in its August 2014 issue.  It encapsulates the State of California’s response to the drought through state legislation, local regulation, litigation, and new technical guidance addressing both surface and groundwater.  To read the entire article click here.

Since the original publication of this article, on September 16 to be exact, Governor Jerry Brown signed into law Senate Bill 1168, Senate Bill 1319 and Assembly Bill 1739. This historic package of legislation establishes the framework for groundwater regulation for the first time in the State’s history. For Abbott & Kindermann’s analysis of these bills click here.

Thirsty? - California Department of Public Health Identifies Communities Most Vulnerable to Drinking Water Shortages

As directed by the Governor’s drought state of emergency, the California Department of Public Health (CDPH) has identified 17 communities that are at risk of running out of drinking water. The CDPH will work with these communities to ensure that the required conservation measures are in place and provide assistance to identify additional water sources. For more information visit: http://www.cdph.ca.gov/Pages/NR14-012.aspx

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.

Court Affirms Groundwater Augmentation Charge Exempt From Proposition 218 As A Water Service Charge

 By William W. Abbott

Griffith v. Pajaro Valley Water Mgt. Agency (October 14, 2013) ___ Cal.App.4th ___. 

The long saga of the groundwater augmentation strategy for Pajaro Valley in Santa Cruz County has reached its next, and possibly final stopping point. The underlying saga is a telltale forecast of what lies ahead for California, with the inevitable conflicts generated by resource allocation and management. In Griffith, the specific conflict stems from the intersection of groundwater management strategies designed in part to better manage water resources and to reduce saltwater intrusion with the citizen rights created by Proposition 218.

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2013 MID-YEAR ENVIRONMENTAL LAW UPDATE

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

Welcome to Abbott & Kindermann’s 2013 Mid-Year Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality, (E) Endangered Species, (F) NEPA, (G) Mining / Oil & Gas, and (H) Cultural Resources.

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Class 3 CEQA Exemption: Unusual Circumstances Exception Becoming Less Unusual?

By Katherine J. Hart

In Voices for Rural Living v. El Dorado Irrigation District, the Court of Appeal, Third Appellate District, affirmed the trial court’s determinations that (1) the small project categorical exemption in CEQA did not apply to exempt an agreement for water service from CEQA review due to the unusual circumstances surrounding the agreement, and (2) a local water district lacked authority to disregard or deem unconstitutional annexation conditions previously imposed by the local agency formation commission (LAFCo).

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Court Affirms Use of Substantial Evidence Test in CEQA Challenge to Annual Adjustment in Water Allocation Regulations

By William W. Abbott

James Abatti v. Imperial Irrigation District (April 26, 2012, D058329) ___ Cal.App.4th ___.

In November 2006, the Imperial Irrigation District, based upon a negative declaration, adopted an Equitable Distribution Plan (“EDP”). The plan was designed to provide for the equitable apportionment of water in the event of a supply/demand imbalance. The governing board approved the plan which provided for a straight-line method of allocation among agricultural users during shortfall periods. Agricultural users were the largest users within the district, with industrial users making up a small percentage of the remainder. In 2007, the District adopted regulations implementing the EDP which provided more detail on allocations to non-residential users, including industrial. In adopting these regulations, the District relied upon the 2006 Negative Declaration. In 2008, the District adopted amended regulations, further refining the regulations. Language was added pertaining to new industrial water contracts. The District again relied upon the prior negative declaration, and relying in part on CEQA Guidelines 15162, concluded that no new environmental review was required. The petitioners then filed a CEQA challenge. The trial court denied the petition, determining that Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 was controlling, and under the traditional substantial evidence test (as compared to the fair argument test), ample evidence supported the District’s decision to rely upon the prior CEQA document. Petitioners dismissed their other claims without prejudice, then appealed.

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In Operation Of Water Projects, Federal Agencies Enjoined From Implementing Delta Smelt Biological Opinion

By Glen C. Hansen

In re Consoidated Delta Smelt Cases, 2011 U.S. Dist. LEXIS 98300 (E.D. Cal. Aug. 31, 2011)

In 2008, the United States Fish and Wildlife Service (“FWS”) issued a biological opinion (“BiOp”) under section 7 of the Endangered Species Act that addressed the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on a threatened fish known as the California delta smelt in the Sacramento San Joaquin Delta. The BiOp concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.”

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Alternative Baseline Considered a Good Egg

By William W. Abbott

The Court of Appeal, Fourth Appellate District, in a very fact-rich decision, addressed three common areas of California Environmental Quality Act (“CEQA”) litigation: water supply analysis/assessment; agricultural lands mitigation; and statements of overriding considerations. In Cherry Valley Pass Acres and Neighbors v. City of Beaumont  (Nov. 22, 2010, No. E049651) ____ Cal.App.4th ____, the facts involve a proposed specific plan considered by the City of Beaumont. Project opponents filed a CEQA challenge, and the trial court ruled for the City and the applicant. The core of the specific plan included property (“Sunny-Cal”) which had been an active egg production facility from the 1960’s to 2005. After that date, the declining economics of the egg industry resulted in the egg farm closing and the intensity of the agricultural operations declined. The Beaumont environs is a rapidly urbanizing area, and has been for a number of years, the result of which is that historic agricultural activities continue to be subject to constant pressure.

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Court Upholds Agency's Reasonable Assumptions in its Urban Water Management Plan

By William W. Abbott

Land use and California Environmental Quality Act (“CEQA”) litigation frequently involves a petitioner asking the court to second guess agency decision makers by reweighing the evidence, and to expansively interpret the statutory duties imposed by a particular statute. As illustrated in a recent appellate court decision upholding an urban water management plan, neither approach is appropriate. (Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33.)

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Governor Schwarzenegger Signs Bill to Relieve POTWs of Some MMPs

By Katherine J. Hart

On September 30, 2010, the Governor signed Senate Bill 1284 (Ducheny) into law (Chapter 645). Ever since their adoption, Mandatory Minimum Penalties or MMPs have created serious economic hardship for local wastewater agencies. While concerns remain about MMPs, the California Legislature and Governor granted some much needed relief to these local agencies.

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Basin Plan Amendments Addressing Impairments for Salt, Boron and Dissolved Oxygen are Valid

By Katherine J. Hart

In San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, et al., (2010) ____ Cal. App.4th ____, a group of public agencies, water contractors, and farmers filed a petition for writ of mandate against the State Water Resources Control Board (“State Board”) under the Clean Water Act (33 U.S.C. § 1251 et seq.) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.)

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City's New General Plan is not Cleared for Take-off, Returns to Base and is Grounded: Court Sets Aside Watsonville General Plan for Non Compliance with State Aeronautical Act and CEQA Requirements

By William W. Abbott

The facts in Watsonville Pilots Association v. City of Watsonville (2010) 183 Cal.App.4th 1059 involve the City of Watsonville and its airport, located on the edge of the City. The airport’s main runway accounted for a majority (82%) of airport operations, and its crosswind runway, accounted for the balance. In 2005, the City amended its airport master plan (“WAMP”), redesignating downward the crosswind, and modifying or eliminating existing land use restrictions. In October 2005, the City circulated a DEIR for its new general plan, and later in May 2006, certified the EIR, adopted a statement of overriding considerations, and adopted the new 2030 General Plan. The new general plan called for significant new growth around the airport, in an area called Buena Vista. As part of the general plan approval, the City identified three significant unmitigated impacts: increased population and housing, loss of prime farmland and the potential to impact groundwater supply.

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Evaluation of Individual Water Transfer Not Considered Improper Piecemealing Under CEQA

By Leslie Z. Walker

In Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, the Castaic Water Agency (“Castaic”) succeeded in extracting its agreement with Kern County Water Agency (“Kern”), if only for a moment, from the tangles of the Department of Water Resources’ (“DWR”) Monterey Agreement.

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2009's Top 10: Legislation, Regulations, & Cases

From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!

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Proposition 218, Water Charges and Voter Approval

By William W. Abbott

Some people look at a water glass and see it half full, others see it half empty. It all turns on one’s perspective. Differing perspectives can also apply to water charges during periods in which the utility user elects to not take service: are those charges to be treated as standby charges, subject to voter approval by Proposition 218 (Cal. Constitution Art. XIII D), or are they fees for service, exempt from voter approval?

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The Rule of Reasonableness Applies to Public Agency Liability for Flood Control Projects, Even if the Watercourse has Been Converted into a Public Work

By Glen Hansen

In Hauselt v. County of Butte (March 23, 2009) 172 Cal.App.4th 550, the California Court of Appeal for the Third District reaffirmed the rule established in Locklin v. City of Lafayette (1994) 7 Cal.4th 327, that the rule of reasonableness, and not the rule of strict liability, applies to an inverse condemnation action involving a flood control project. Hauselt applied the reasonableness rule despite the plaintiff’s argument that the government agency activities converted the watercourse into a public work.

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State Water Board Issues New Recycled Water Policy

By Glen Hansen

On February 3, 2009, the State Water Resources Control Board adopted its long-awaited Recycled Water Policy. The new policy is intended to support the Water Board’s strategic plan to increase sustainable local water supplies. The purpose of the new policy is to increase the beneficial use of recycled water from municipal wastewater sources in a manner that fully implements state and federal water quality laws. Pursuant to Water Code sections 13550 et seq., the Water Board declared: “[I]t is a waste and unreasonable use of water for water agencies not to use recycled water when recycled water of adequate quality is available and is not being put to beneficial use…”

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Court Upholds City's Water Supply Assessment

By Cori Badgley and Kate J. Hart

Water supply issues continue to plague California, and adequate water supply and analysis has become one of the main litigated issues when challenges are brought to development projects. The courts have already shown that water supply is not an issue to be ignored, whether it’s short-term supply or long-term. (See “California Supreme Court Weighs in Once Again on CEQA Compliance” for an analysis of the leading Supreme Court case on water supply.) More recently, petitioners have started to focus on the required water supply assessment under SB 610 (Water Code, §§ 10910, 10912), instead of only challenging the environmental impact report under the California Environmental Quality Act (“CEQA”).

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Court Discusses Improper Deferral of CEQA Mitigation and Provides Definition for "Probable Future Projects"

By Cori Badgley

In Gray v. County of Madera (2008) 167 Cal.App.4th 1099, the Court of Appeal, Fifth Appellate District grappled with several issues related to the California Environmental Quality Act (“CEQA”) along with the Senate Bill 610 water supply analysis, the Surface Mining and Reclamation Act, and general plan consistency. Among the court’s various holdings, the court found examples of improper deferral of mitigation under CEQA. Additionally, the court refined the definition of a “probable future project” for purposes of cumulative impacts. The project at issue involved the development of an aggregate mining operation in the unincorporated area of Madera County ("County").

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Re-Approval of Expired Entitlements Can Track Prior CEQA Documentation, Subject to the Substantial Change Doctrine

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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California Supreme Court affirms the legal adequacy of the CALFED EIR; provides guidance on evaluation of alternatives and level of detail for first tier EIRs

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 respond 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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California's Water Supply Potentially Endangered by Invalid Biological Opinion

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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Paper Water Revisited: Second Appellate District Applies the Principles of Vineyard

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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California Supreme Court Reviews Two Important CEQA Cases

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.

Paper Water and Project Approval

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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New CEQA Guidance on Water Supply

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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Attention Water Suppliers and Municipalities: A Step-By-Step Guide to Implementing SB 221 and SB 610 Has Arrived

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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California Supreme Court Rules that Water Connection Fees for New Connections not Subject to Proposition 218's Voter Approval Requirement

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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EIRs cannot routinely rely upon full state and federal water contract deliveries in evaluating adequacy of water supplies

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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