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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.

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

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

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

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

 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.

Continue Reading 2014 CEQA 3rd QUARTER REVIEW

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

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

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

Continue Reading REMINDER – NEW CLASS – Update on Easement Law and Boundary Disputes

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.Continue Reading Permissible CEQA Mitigation Includes Reliance Independent Agency Regulatory Review