AB 52 Amends CEQA by Creating a New Category of Cultural Resources and New Requirements for Consultation with Native American Tribes

On September 25, Governor Brown signed Assembly Bill No. 52, which creates a new category of environmental resources that must be considered under the California Environmental Quality Act: “tribal cultural resources.” The legislation imposes new requirements for consultation regarding projects that may affect a tribal cultural resource, includes a broad definition of what may be considered to be a tribal cultural resource, and includes a list of recommended mitigation measures.

New category of resources

AB 52 adds tribal cultural resources  to the  categories of cultural resources in CEQA, which had formerly been limited to historic, archaeological, and paleontological resources. “Tribal cultural resources” are defined as either (1) ”sites, features, places cultural landscapes, sacred places and objects with cultural value to a California Native American tribe” that are included in the state register of historical resources or a local register of historical resources,  or that are determined to be eligible for inclusion in the state register; or (2) resources determined by the lead agency, in its discretion, to be significant based on the criteria for listing in the state register.

Under AB 52, a project that may cause a substantial adverse change in the significance of a tribal cultural resource is defined as a project that may have a significant effect on the environment. Where a project may have a significant impact on a tribal cultural resource, the lead agency’s environmental document must discuss the impact and whether feasible alternatives or mitigation measures could avoid or substantially lessen the impact.

Consultation with tribes

Recognizing that tribes may have expertise with regard to their tribal history and practices, AB 52 requires lead agencies to provide notice to tribes that are traditionally and culturally affiliated with the geographic area of a proposed  project if they have requested notice of  projects proposed within that area.  If the tribe requests consultation within 30 days upon receipt of the notice, the lead agency must consult with the tribe.  Consultation may include discussing the type of environmental review necessary, the significance of tribal cultural resources, the significance of the project’s impacts on the tribal cultural resources,  and  alternatives and mitigation measures recommended by the tribe.

The parties must consult in good faith, and consultation is deemed concluded when either the parties agree to measures to mitigate or avoid a significant effect on a tribal cultural resource (if such a significant effect exists) or when a party concludes that mutual agreement cannot be reached.

Mitigating adverse changes to tribal cultural resources

Mitigation measures agreed upon during consultation must be recommended for inclusion in the environmental document.   AB 52 also identifies mitigation measures  that may be considered  to avoid significant impacts if there is no agreement on appropriate mitigation.  Recommended measures include:

  • preservation in place
  • protecting the cultural character and integrity of the resource
  • protecting the traditional use of the resource
  • protecting the confidentiality of the resource
  • permanent conservation easements with culturally appropriate management criteria.


AB 52 contains several important changes to CEQA. Environmental documents must now consider tribal cultural resources in their analyses, and additional consultation requirements may apply to certain projects. Project proponents should be aware of these new requirements, and tribes should be similarly aware of their consultation rights under the new legislation.

Annexation To District Is Not Authorized For Sole Purpose Of Extending Right To Vote In District Elections

“No taxation without representation”  is a powerful rallying cry, but it’s not enough to justify an application for annexation of territory to a special district, according to recent court of appeal decisionCity of Patterson v Turlock Irrigation District  (5th Dist. F067629 June 25, 2014).  The court held that there is no statutory authorization for expansion of an irrigation district’s territorial boundaries for the sole purpose of giving voting rights to consumers of the district’s electrical services.

Turlock Irrigation District  imposed a surcharge on electrical rates charged customers in a service area outside of the District’s boundaries.  Because they reside outside the District, electrical service customers in the City of Patterson were not eligible to vote in Irrigation District elections or sit on the District’s board, and thus they were not represented in the Irrigation District’s rate-setting process. Despite this lack of representation, they had to pay the surcharge on electrical rates.

The California Public Utilities Commission had authorized the Irrigation District to provide extraterritorial service in 2003 when it approved the District’s acquisition of PG & E’s electric distribution and transmission facilities in western Stanislaus County.   Over eight years later, the city sought to obtain voting rights for its disenfranchised customers by asking the Stanislaus Local Agency Formation Commission to approve annexation of the area to the District.

The Irrigation District opposed the city’s application for annexation and submitted a resolution to the LAFCO requesting termination of the proceedings, under Government Code § 56857(b), which allows proceedings for annexation of territory to a district to be terminated when justified by a financial or service-related concern.

The city responded by filing suit to challenge the validity of the Irrigation District’s resolution. The city claimed that the financial and service concerns relating to provision of water for irrigation described in the resolution were not legitimate because the city’s annexation application was limited to retail electrical service and would not expand the District’s obligations relating to irrigation water. The trial court ruled for the District, concluding that its resolution requesting termination of the proceedings complied with the statute.

The city appealed and the Court of Appeal affirmed the trial court judgment.  However, rather than basing its decision on the Irrigation District’s resolution requesting termination of the annexation proceedings, it found the city’s annexation application was  legally deficient.

The court concluded the city’s application failed to comply with the mandatory requirement in Government Code § 56653 that an application for annexation include a plan for providing services to the annexed territory that describes the services to be extended to the affected territory. The city’s application did not, however, seek to extend services to the affected territory; it sought annexation solely for the purpose of obtaining voting rights for city residents.

The court noted at the outset of its opinion: “This appeal echoes a familiar cry from the American Revolution— ‘No taxation without representation!’”  But it explained that this  “purported evil” that the city’s application sought to redress had not been identified by the Legislature as a problem that annexation of territory is intended to solve. The city’s application was therefore fatally flawed because it was not based on a statutorily authorized reason for annexation, based on the statute’s plain language.

Compliance With FAA Regulations Provides Adequate CEQA Mitigation For Aviation Safety Impacts

Reliance on compliance with FAA regulations as a mitigation measure to reduce impacts to air safety to less than significant levels is appropriate under CEQA, according to the Court of Appeal  in Citizens Opposing A Dangerous Environment v. County of Kern, 228 Cal.App.4th 360 (5th Dist. July 25, 2014).

Two wind energy companies applied to Kern County for rezoning and a conditional use permit for mobile concrete batch plants that would be used to build and operate a wind farm in the Tehachapi Wind Resource Area. After performing an initial study, the county found that the wind farm project may result in significant impacts on the environment and that preparation of an EIR was warranted.

The County’s draft EIR indicated that the  project might pose a significant safety hazard to aircraft and gliders using the nearby Kelso Valley Airport. The county consequently included a mitigation measure that required the project proponents to obtain a “Determination of No Hazard to Air Navigation” from the FAA for each wind turbine before the county would issue building permits. The board of supervisors found that the mitigation measure reduced impacts to aviation safety to less than significant levels, certified the final EIR, and approved the applications.

Citizens Opposing a Dangerous Environment petitioned for writ of mandamus, challenging the county’s certification of the final EIR and approval of the wind project. CODE claimed the mitigation measure’s incorporation of compliance with FAA regulations was “legally infeasible,” and did not adequately reduce hazards to aviation safety to less than significant levels. The court of appeal disagreed.

CODE contended the mitigation measure was legally infeasible because it would not keep the project from causing adverse impacts to aviation safety, but rather the county hid “behind the fig leaf of a non-existent federal preemption.” The court of appeal found, however, that the measure’s reference to the FAA’s hazard determination process was appropriate. Under this process, the project sponsors were required to submit Form 7460-1, “Notice of Proposed Construction or Alteration” to the FAA and obtain a no hazard determination from the FAA in response to that submission. If the FAA were to respond with a hazard determination, the mitigation measure required that the project proponents work with the FAA to remedy the hazard before the county would issue a building permit.  As the court observed, “A condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance.”

Kern County also did not abdicate its responsibility to mitigate the impact to aviation safety by using compliance with FAA safety regulations as the benchmark. The court found that federal law “occupies the field of aviation safety,” and exercises “sole discretion in regulating air safety.” The relevant FAA regulations were enacted to establish standards for determining when a proposed structure would constitute an unsafe obstruction to aviation safety, and the process to make such an evaluation. As the court observed, these standards often apply to wind farms because the height of wind turbines often exceeds the reporting thresholds. That the FAA could not enforce the hazard/no hazard determination, because it does not have jurisdiction over land development, does not warrant finding the regulations inapplicable. Rather, the county, as the relevant land use authority, was required to do so by the mitigation measure through the exercise of its police power. Accordingly, the court found that the mitigation measure was legally enforceable, and suitably reduced any impact to aviation safety to less than significant levels.


CEQA Lawsuit Fails to Slow High-Speed Rail

Several parties, including the San Francisco Peninsula communities of Atherton, Menlo Park, and Palo Alto, challenged the California High-Speed Rail Authority’s decision on where to route trains travelling between the Central Valley and the Bay Area.  The court of appeal recently upheld the Authority’s program EIR for the routing, but rejected the Authority’s argument that federal law preempted the application of CEQA.  Town of Atherton v. California High-Speed Rail Authority, C070877 (Third District, July 24, 2014).

The court upheld the program EIR the Authority relied on in deciding to approve a high-speed rail route through the Pacheco Pass and several Peninsula communities, rather than a northern route through the Altamont Pass.  The court ruled:

  • The program EIR properly deferred detailed analysis of the impacts of elevating the tracks on portions of the route through the Peninsula to a second-tier project-level EIR.  Information developed shortly before the program EIR was certified showed that an aerial viaduct was the only feasible alignment in some areas of the Peninsula.  Petitioners argued that an analysis of the impacts of elevated tracks on Peninsula communities should have been included in the program EIR’s comparison of the route alternatives.  Nevertheless, the court held it was appropriate for the Authority to review this “site specific” issue in a project-level EIR, rather than in the program EIR.
  • Petitioners’ challenge to the ridership model used in the EIR simply pointed out a “dispute between experts that does not render an EIR inadequate.”  The Authority was entitled to choose between divergent expert recommendations.
  • The Authority was not required to study additional proposed alternatives, because they either were infeasible or were substantially the same as alternatives analyzed in the program EIR.

The Authority had asked the court of appeal to dismiss the case on the ground the federal Interstate Commerce Commission Termination Act preemptsapplication of state environmental laws such as CEQA under these circumstances.  Although the federal statute does not preempt all state and local regulations, the court noted that it creates exclusive federal regulatory jurisdiction and remedies over railroad operations.  The court concluded, however, that state regulation was not preempted here, based on an exception to federal preemption which applies when a state acts as a “market participant.”

This case was not analogous, the court reasoned, to a private railroad company seeking to build a rail line free of state regulations.  Instead, the court wrote, the State itself would determine the high-speed train’s route, acquire the necessary property, and operate the train.  The Authority also had an “established practice” of complying with CEQA, and the 2008 voter-approved bond measure to fund the high-speed rail network included compliance with CEQA as a project feature.  For these reasons, the court held the Authority was required to comply with CEQA.

In sum, the California High-Speed Rail Authority was unable to convince the court that this part of the high-speed rail program was exempt from CEQA review, but it won the court’s approval for a program EIR covering a portion of the train’s route.  While the Authority continues to face several other legal challenges, this decision brings a California high-speed rail network another step closer to reality.

CEQA Compliance Not Required For Council-Adopted Land Use Initiative Measure

Developers, project opponents, agencies and courts often lose the forest for the trees when considering CEQA issues.  A prime example is the conflicting appellate authority and public debate on the question whether a city council’s adoption of a voter-sponsored initiative measure is subject to CEQA.

In Tuolumne Jobs & Small Business Alliance v. Superior Court, S207173 (Supreme Court, July 7, 2014) the California Supreme Court answered “no” to this question, in a decision that brings some welcome common sense to the CEQA world.  Rather than getting lost in the minutiae of deciding whether a council decision to adopt an initiative measure is ministerial, as the lower courts had done, the court simply ruled that the language and intent of the Elections Code preclude application of CEQA.

At issue in the case was the “Wal-Mart Initiative,” an initiative petition that proposed a specific plan for a Wal-Mart Supercenter.  The city council adopted the initiative measure instead of placing it on the ballot.  The council did not take any steps to comply with CEQA.  Opponents sued, claiming the city should have.  The trial court ruled for the city, the court of appeal ruled for the opponents, disagreeing with an earlier appellate decision that had reached the contrary result, and the California Supreme Court then took the case. Focusing on the fundamentals, the court upheld the city’s action.

The court first examined the language of the Elections Code, which requires city councils and boards of supervisors to act quickly upon receipt of a qualified voter-signed initiative petition, and allows them to adopt the measure without alteration as an alternative to putting it on the ballot.

The court noted that the delay that would be required for CEQA review meant that CEQA compliance would essentially nullify these Election Code provisions.  Further, even if time constraints permitted CEQA review, that review would be pointless, as the Elections Code does not give cities authority to reject a qualified measure or require alterations to lessen its environmental impacts.

The court also explored legislative history.  It noted that the Legislature had failed to pass a handful of bills that would have required environmental review of voter-signed initiative measures, while adopting a law that allows preparation of a report to be completed within 30 days.  The court found this evidence telling, and concluded that adoption of that law represented a legislative compromise balancing the right of initiative with the goal of informing voters and local officials about potential consequences of an initiative’s enactment:  “Thus, when faced with competing bills, the Legislature enacted the bill that gave local governments the option of obtaining abbreviated review to be completed with the short time frame required for action on initiatives.”

The court also addressed policy issues. The opponents argued that developers could use the initiative process to avoid CEQA review.  The court responded by noting that the initiative power can also be used to thwart development.  It concluded that: “these concerns are appropriately addressed to the Legislature.  The process itself is neutral. The possibility that interested parties may attempt to use initiatives to advance their own aims is part of the democratic process.”

New Proposed CEQA Guidelines on Traffic Impacts Issued: It’s How Far You Go, Not How Slow

By Stephen Kostka and Barbara Schussman

Senate Bill 743, enacted in 2013, was designed to create a process for changing the way traffic impacts are examined under CEQA. The concept was to take the focus away from vehicle delay, measured by level of service, which has resulted in mitigation requirements to increase intersection and road capacity. Instead, SB 743 seeks to shift the focus to greenhouse gas emissions resulting from trip length, encouragement of transit use, and promotion of a mix of land uses that will reduce travel demand.congestion-2

SB 743 requires that the Governor’s Office of Planning and Research amend the CEQA Guidelines to target these goals by providing an alternative to the level of service test for evaluating traffic impacts.

OPR’s discussion draft (proposed new Guideline 15064.3) issued on August 6, provides proposed changes to the CEQA Guidelines together with an explanation of the proposed changes and detailed background information.  A brief summary:

Description of Purposes.

  • the primary consideration in a CEQA analysis of transportation effects is the amount and distance that a project might cause people to drive, measured by automobile trips generated and trip distance.
  • Impacts to transit and the safety of other roadway users, such as pedestrians and bicyclists, are relevant factors in an environmental analysis.
  • Air quality and noise impacts related to traffic are still relevant in a CEQA analysis, but are typically analyzed in the air quality and noise sections of CEQA documents.
  • Automobile delay, as gauged by level of service or similar measures of capacity or traffic congestion, shall not be considered a significant impact on the environment.

Criteria for Analyzing Impacts and Determining Significance

The proposed Guideline contains detailed guidance for determining impact significance:

Vehicle Miles Traveled and Land Use Projects

Vehicle miles traveled are identified as “generally” the most appropriate measure of transportation impacts, recognizing that a lead agency may include other measures in appropriate situations. Factors agencies may consider in determining impact significance include a comparison with the regional average, as well as examples of projects that might have a less than significant impacts such as projects in areas served by transit and land use plans shown to decrease vehicle miles as compared to existing conditions.

Induced Travel and Transportation Projects

Impacts that can result from transportation projects –- the environmental impacts of increasing road capacity — should also be part of the analysis.  This part of the proposed Guideline would require lead agencies that add new road capacity in congested areas to consider the potential growth-inducing impacts of increased capacity. It would also indicate that some transportation projects, such as those that are designed to improve safety, would not necessarily be expected to increase vehicle miles traveled and result in significant impacts.

Local Safety

The criteria on local safety are intended to recognize that vehicle miles traveled may not be the only impacts associated with transportation. It provides that lead agencies should consider whether a project may cause unsafe conditions for roadway users.


The proposed Guideline would also provide general guidance on methodology for evaluating vehicle miles traveled and traffic modeling while recognizing the role of professional judgment in using traffic models.

 Mitigation and Alternatives

The Guidelines would be amended to identify potential mitigation measures and alternatives in existing Guidelines Appendix F, to make it clear that agencies retain the ability to require projects to achieve levels of service designated in general plans or zoning codes (even though delay is not to be treated as a significant impact under CEQA), and to provide that previously adopted mitigation measures may still be enforced.

Implementation Schedule

The Guidelines would be implemented in phases. The changes would apply prospectively to new projects that had not already commenced environmental review upon their effective date. The new procedures would apply immediately upon their effective date to projects located within one-half mile of major transit stops and transit corridors provided for in SB 375. Public agencies may opt-in to the new procedures provided by the Guidelines if they update their own CEQA procedures to do so. Otherwise, the new rules would apply statewide after January 1, 2016.

OPR will be accepting comments on the discussion draft through October 10, 2014.

No Treasure for Challenger on Appeal: Treasure Island EIR Upheld

Three years after the San Francisco Board of Supervisors unanimously approved a major redevelopment project on Treasure Island and Yerba Buena Island, an appellate court affirmed a lower court judgment upholding the project’s EIR.  Citizens for a Sustainable Treasure Island v. City and County of San Francisco, A137828 (First District, July 7, 2014).

In 2011, the Board approved a comprehensive plan to redevelop a former naval station located in the middle of San Francisco Bay into a mixed-use community with updated infrastructure and amenities.  A “project EIR” analyzed all phases of the project at maximum buildout.  The EIR was challenged in court, partly on the basis that it contained insufficient detail to constitute a project EIR and, therefore, should have been prepared as a program EIR.


The Court of Appeal disagreed:  All CEQA requires is that an EIR contain all requisite elements and a level of specificity sufficient for the particular proposal under consideration, both of which the court found were satisfied.  Lead agencies, the court held, have the discretion to determine whether a program or project EIR should be prepared.

The court also rejected the challenger’s assertion that the city improperly sought to short-circuit subsequent environmental review by preparing a project EIR, observing that courts apply the same substantial evidence standard to subsequent environmental review whether a project is evaluated in a program EIR or a project EIR.

Other attacks on the EIR also failed, including a claim it should have been recirculated in light of comments submitted by the U.S. Coast Guard about potential effects on regulation of ship traffic.  The court concluded there was no significant new information that required recirculation because the parties met to discuss the Coast Guard’s concerns, a project document and the EIR were revised in response to the comments, the Coast Guard expressed satisfaction with the changes, and no new significant adverse environmental impacts were shown.

The question of whether an EIR should have been prepared as a program EIR or as a project EIR also was before another court recently in Citizens Against Airport Pollution v. City of San Jose.  As discussed in our post on that decision, the court declined to reach the issue, concluding that the substance of the environmental analysis was more important than the title placed on the document.

Airport Challenge Does Not Fly: Court Upholds Use of Addendum for Changes to San Jose Airport Master Plan

The City of San Jose’s use of an addendum for recent modifications to the San Jose Airport’s Master Plan has been upheld by the court of appeal.  Citizens Against Airport Pollution v. City of San Jose, H038781 (6th Dist.  July 2, 2014) 

San_Jose_International_Airport_-_Terminal_BIn 1988, the City of San Jose began to prepare an update to its 1980 Airport Master Plan to accommodate projected growth in air traffic through a planning horizon year of 2010.   The city completed an EIR for the Airport Master Plan update in 1997, and a supplemental EIR in 2003,  and also adopted eight addenda to the EIRs from 1997 through 2010.  In the eighth addendum, the city analyzed the potential impacts associated with proposed changes to the Master Plan including:  (1) changes in the size and location of future air cargo facilities; (2) replacement of previously planned  air cargo facilities with 44 acres of general aviation facilities to accommodate a forecasted increase in use by large corporate jets; and (3) modification of two taxiways to improve access for corporate jets.

Citizens Against Airport Pollution  filed suit to challenge the eighth addendum, claiming the changes to the Airport Master Plan amounted to a new project requiring preparation of a supplemental or subsequent EIR.  The city responded that the proposed changes did not add up to a new project, but rather were adjustments to an existing plan that had already received environmental review, and therefore an addendum was appropriate.

Heavily relying on the principle that the standard for a court’s review of an agency’s use of an addendum to an EIR is “deferential,” the court upheld the city’s decision to prepare an addendum, finding substantial evidence in the administrative record that supported the city’s determination that “the changes in the project or its circumstances were not so substantial as to require major modifications to an EIR.”

The court considered, but declined to decide, whether the 1997 EIR should be considered a program EIR.  Instead, the court found that the record contained substantial evidence that use of an addendum was appropriate, even assuming the 1997 EIR was a program EIR,  because the proposed changes will not result in any new significant impacts or impacts that are substantially different from those described in the 1997 EIR and the supplemental EIR.  Similar to the recent decision by the First District Court of Appeal in Citizens for a Sustainable Treasure Island v. City and County of San Francisco (discussed here), the court found that the substance of the EIR was more important than the name attached to the document, and that the standard for determining whether further environmental review is required the same for both a program and project EIR.

Turning to the substantive claims, the court rejected the claim that the addendum violated CEQA because it did not include the greenhouse gas analysis required by the 2010 amendments to the CEQA Guidelines.  Following the reasoning in recent court decisions, the court observed that the potential environmental impacts of GHG emissions have been known since the 1970s and were widely known before the certification of the 1997 EIR and the 2003 supplemental EIR; as a result, the effect of GHG emissions was not “new information”  that would trigger the need for further CEQA review.

The court further found that the proposed modifications did not warrant supplemental review of  noise impacts, relying heavily on a detailed study comparing the noise analysis in the 1997 EIR and 2003 supplemental EIR to the noise levels projected with the proposed modifications in place.  The challenger’s air quality claim also fell flat, as the record reflected that the proposed modifications would neither increase the activity levels at the airport beyond that already identified in the Plan nor would the proposed changes alter the capacity of the airport. Finally, the court agreed with the eighth addendum’s conclusion that potential impacts to the burrowing owl did not warrant supplemental review, concluding that it could “reasonably assume” that the burrowing owl mitigation measures incorporated in the addendum “will maintain the environmental impacts on the Airport’s burrowing owl population to a less than significant level.”

California Adopts Emergency Water Curtailment Regulations

It is now clear that the present drought requires that there be curtailment of the exercise of some existing water rights due to the lack of sufficient surface water.  On January 17, 2014—the same day as the Governor’s Proclamation of a drought state of emergency—the State Water Resources Control Board issued a “Notice of Surface Water Shortage and Potential of Curtailment of Water Right Diversions.”  The notice advised that if dry weather conditions persisted, the Board will notify water right holders of the requirement to limit or stop diversions of water under their water rights, based on water right priority.

SWRCB_Logo1On March 1, 2014, Governor Brown signed legislation to assist drought-affected communities and provide funding for better managed local water supplies.  As part of that drought relief package, the Legislature expanded the Board’s existing emergency regulation authority under Water Code section 1058.5 and made statutory changes streamlining the authority to enforce water rights and increasing penalties for illegally diverting water during drought conditions.  See SB 104 (adopted March 1, 2104).

Water Code section 1058.5, as amended, grants to the Board the authority to adopt emergency regulations in certain drought years in order to “prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion, of water to promote water recycling or water conservation, to require curtailment of diversions when water is not available under the diverter’s priority of right, or in furtherance of any of the foregoing, to require reporting of diversion or use or the preparation of monitoring reports.”

Any emergency regulation adopted pursuant to this section may remain in effect for up to 270 days and is deemed repealed immediately upon a finding by the Board that due to changed conditions, it is no longer necessary.

On April 25, 2014, Governor Brown issued a Proclamation of Continued State of Emergency related to the drought.  The Proclamation affirms provisions of the January 17, 2014 Proclamation and added new provisions related to water conservation, water transfers, fishery protection, water recycling, groundwater overdraft protection, water supply shortage and fire response.  Additionally, the Proclamation suspended CEQA requirements for certain activities, including the adoption of emergency regulations under Water Code section 1058.5.

Under the state water right priority system, the Board must curtail water diversions when sufficient flows in a watershed are not available because the water is needed to satisfy senior rights or provide a correlative share of equally senior rights (i.e., riparian rights), or is needed to meet public trust and water quality requirements.

On May 20, 2014, the Board adopted emergency regulations.  See Cal. Code Regs., tit. 23, §§ 877-879.2 (found at article 24, title 23, division 3, chapter 2 of the California Code of Regulations, §§ 877-879.2).  Under these regulations, the Board—based upon an extensive factual record—curtailed diversions of water on a priority basis in three watersheds on the ground that public trust needs required minimum flows for federally-listed anadromous fish.  The authority to issue the curtailment order was given to the Deputy Director and provision was made for exclusion from the curtailment for diversions necessary for minimum health and safety needs.  All water users issued a curtailment order were required to respond and provide the requested information.    The regulations also provided for an alternative to curtailment, which permitted diverters to propose and enter into agreements that would accomplish the same purpose.

Under these regulations, violations can be subject to an administrative civil liability under the Water Code or referred to the Attorney General.  Administrative cease and desist orders and court injunctions are also available.  An administrative civil liability for an unauthorized diversion could be up to $1000 per day, plus $25,000 per acre-foot of water illegally diverted.

The process followed in issuing the curtailment orders with respect to the three watersheds involved in the May 2014 curtailment was time consuming, cumbersome and ineffective.  As a result, it was determined that additional emergency regulations were necessary to improve the Board’s ability to quickly and effectively implement and enforce curtailments during the current drought and to ensure that the State’s water right priority system is effectively implemented.  The Board found that while it has existing authority to issue curtailment notices to junior water users and to initiate enforcement actions, it is likely that there will be a high degree of non-compliance during the drought that will impact senior water rights holders.  Thus, it proposed new regulations that it concluded would solve curtailment and reporting compliance problems.  The Board concluded that  (1) the proposed regulations will provide greater assurance that curtailed water rights holders will cease diverting water; and (2) provide greater assurance that curtailed water rights holders will report information regarding continued exercise of their senior water rights.  As opposed to the process required under the Board’s existing authorities, as exemplified by the May 20, 2014 regulations—which required a case-by-case investigation, issuance of a draft cease and desist order or proposed administrative civil liability, and the opportunity for an evidentiary hearing—a violation of the new proposed emergency regulation would be immediately effective and enforceable by administrative penalty.

The emergency regulations, were adopted on July 2, 2014 and are found in Title 23 of the California Code of Regulations, Article 24, division 3, chapter 2, sections 875, 878.1, 878.3 and 879.  They are effective statewide and are subject to the same 270-day sunset provision as the May 20, 2014 regulations.

Section 875 authorizes the Deputy Director for the Division of Water Rights to issue curtailment orders to post-1914 appropriative right holders in order of water right priority, requiring the curtailment of water diversions and use (except as provided in sections 878 and 878.1).  Section 878.1 provides for certain minimal diversions for domestic and municipal uses.  Section 878.3 provides for regional alternatives to curtailment through agreement (with approval of the Deputy).

As originally proposed, the regulations adopted on July 2, 2014, applied to all diverters, including pre-1914 and riparians.  That version of the regulations also contained a provision excusing minimal health and safety needs from the curtailment.  However, the final version—following numerous comments—excluded pre-1914 appropriators and riparians from the curtailment provisions and also eliminated the health and safety need exclusion on the ground that it could be accomplished by other provisions.

The essence of the emergency regulations adopted July 2, 2014, is contained in section 875.  It provides that:

  • The Deputy Director may issue curtailment orders to post-1914 appropriative water rights holders in order of water right priority requiring curtailment of water diversions; no hearing is required;
  • The Deputy Director can rely upon the information listed in the regulations in making the determination of whether water is available under a diverter’s priority and to issue or suspend curtailment orders;
  • Any order is to be accompanied by the Deputy Director’s determination of the quantity of water and other facts concerning the availability of water and the assumptions employed in issuing the curtailment;
  • A notice of the curtailment specifying the method of curtailment must be given;
  • The provision that all curtailment orders are subject to reconsideration under Water Code sections 1122, et seq.;  however, other than through the reconsideration process, no hearing is provided for prior to curtailment.

Section 879 provides for reporting by diverters subject to curtailment and certification that diversion has ceased.

The new regulation, as presently worded, does not prioritize for the Deputy Director any types of use that are to be given preference over others.  Presumably, the decision is within the discretion of the Deputy Director who, under existing law, must consider public trust uses.  Although pre-1914 and riparian users are not currently subject to the new curtailment procedure, there is nothing suggesting that they could not be subjected to such a procedure under regulations that could be adopted later.

The new regulations are, in large part, a response to the ineffectiveness of prior efforts at curtailment.  For example, with the onset of the drought, thousands of notices of curtailment were sent to various junior water rights diverters with a minimal response in terms of cessation of diversion, reporting and other requirements.  There was also a lack of enforcement ability short of going to court.  It is hoped that has been remedied by the new regulations.

On July 15, 2014, the Board took further action in light of the drought emergency.  It adopted additional emergency regulations prohibiting:

  • The application of water to outdoor landscapes in a manner that causes runoff such that water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots or structures;
  • The use of a hose to wash an automobile, except where the hose is fitted with a shutoff nozzle;
  • The application of water to any hard surface; and
  • The use of potable water in a fountain or other decorative water feature.

The taking of any such prohibited actions could subject the violator to a fine of up to $500/day.

An additional regulation was adopted applicable to water suppliers requiring them to implement requirements that impose mandatory restrictions on outdoor irrigation and implement other mandatory conservation measures.  Urban water suppliers are required to submit monitoring reports to the Board.


State Water Resources Control Board May Weigh the Use of Water for Public Purposes Against Commercial Use by Riparian Users and Early Appropriators in Determining Reasonableness of Commercial Use

A court of appeals, for the first time, has upheld the  State Water Resources Control Board’s authority to restrict valid pre-1914 and riparian water rights on the ground that their exercise has become an unreasonable use of water under current circumstances.

While it has long been accepted that California law requires that water be put to a use that is both beneficial and reasonable, what constitutes an “unreasonable use of water” has received little attention.  This opinion, in finding the use in question to be unreasonable, is significant both for the principles it relies on and its articulation of the sideboards of the “reasonable use” requirement. Light v. State Water Resources Control Board, 173 Cal.Rptr.3d 200 (2014)

In April 2008, a particularly cold month during a dry year, young salmon were found stranded along the banks of the Russian River.  Federal scientists concluded that the deaths were caused by the abrupt declines in water level due to diversions of water that was sprayed on vineyards and orchards to prevent frost damage.  The salmon are classified as threatened or endangered under the Federal Endangered Species Act.

Following a series of hearings and the preparation of an environmental impact report, the State Water Resources Control Board adopted a regulation — Regulation 862 — that will likely require the reduction in diversion of water for frost protection under certain circumstances.  Regulation 862 delegated the task of formulating regulations governing water use programs to local bodies comprised of diverting growers.  The regulation declares that any water use inconsistent with the programs promulgated (and later approved by the Board) is unreasonable and prohibited.

The plaintiff growers successfully challenged the regulation in the trial court, contending that because the Board lacks regulatory authority to limit diversions by riparian users and pre-1914 appropriators it has no authority to regulate their use of water.

The court of appeal reversed, holding that although the Board has no authority to require such users to obtain a permit to divert water, it has the power to prevent riparian users and pre-1914 appropriators (and anyone else) from using water in an unreasonable manner.  “We conclude that, in regulating the unreasonable use of water, the Board can weigh the use of water for certain public purposes, notably the protection of wildlife, against commercial use of water by riparian users and early appropriators.”

Under California’s dual system of water rights and rule of priority, ownership of the water is vested in the People, but the right to divert water from its natural course for public or private use can be acquired.  Riparian users have water rights through their ownership of riparian land.  Riparian users have never been required to obtain a permit, because their water right emanates from the riparian character of their land.   Appropriators are those who hold a right to divert for use on non-riparian lands.  Appropriators who established their rights prior to California’s adoption of a regulatory system for appropriation in 1914 are not required to obtain a permit or license.

California’s rules of priority require that riparian users must curtail their use proportionately amongst themselves in times of shortage and that appropriative rights are determined by first-in-time, first-in-right.  California Constitutional Amendment Article X, section 2 (adopted in 1928) provides that water use “shall be reasonably required for the beneficial use to be served.”  The provision applies to both riparian users and appropriators.

The appellate court in Light emphasized that “reasonableness” is now the overriding principle governing the use of water in California.  It acknowledged, however, that the California courts have never defined what constitutes an unreasonable use of water.  The court concluded that what is a reasonable and beneficial use at one time may not be at another and that a determination of reasonableness depends upon the circumstances.  In other words, what may be a reasonable use at one time may – because of changed conditions – be waste at a later time and be unreasonable:

“Although, as we have said, what is a reasonable use of water depends on the circumstances of each case, such inquiry cannot be resolved in vacuo isolated from statewide considerations of transcendent importance.  Paramount among these we see the ever increasing need for conservation of water in this state, and inescapable reality of life quite apart from its express recognition in Article X, section 2.”

The court also pointed out that the public trust is a second potential limit on private uses of water.  The public trust, which has been extended in geographic terms from navigable waters to include non-navigable tributaries, has amongst its purposes the preservation of water’s function as a natural habitat.  Consequently, the Board, in issuing licenses that will permit an appropriator to take water has an affirmative duty to take the public trust into account and to protect public trust uses where feasible.  The Board has been given statutory powers to make reasonable rules and regulations to control and condition water use and to prevent unreasonable or wasteful use of water.

In Light, the plaintiffs challenged Regulation 862 contending that:

  • The Board lacks authority to enact regulations on unreasonable use of water
  • The Board lacks authority to limit water use by riparian and pre-1914 appropriators
  • The regulation improperly violates the rules of priority

The trial court ruled favorably for the plaintiffs on all counts.  But the appellate court reversed.

The court of appeal found that Regulation 862 – which provides in part that “a diversion of water that is harmful to salmonids is an unreasonable use of water if the diversion can’t be managed to avoid harm” – was valid and within the Board’s authority.  It also held that the regulation applied to riparian users as well as pre-1914 appropriators.  The court concluded that while the Board cannot require pre-1914 appropriators and riparians to obtain a permit, that does not mean that the Board cannot prevent such users from diverting water for a use the Board determines to be unreasonable.  In that regard, the Board has authority to determine what has become an unreasonable use and prohibit such use.  The court held that the “vested rights” doctrine does not prevent the Board from redefining existing beneficial uses as unreasonable.

Consequently, the extent of a particular users’ vested right to use water may change.  “A riparian users’ vested water rights extend only to reasonable beneficial water use, which is determined at the time of use.”  The court held that the Board has ultimate authority to allocate water in a manner inconsistent with a rule of priority when to do so is necessary to prevent the unreasonable use of water.  According to the court, that power is buttressed by the State’s obligation under the public trust doctrine that applies to all water rights.

The court stressed that the legislature has declared that the use of water for recreation and the preservation and enhancement of fish and wildlife resources is a beneficial use of water.  It has thus recognized that the welfare of wildlife is a beneficial use on a par with the type of commercial uses that have traditionally been recognized as beneficial.  Consequently, balancing the use of water for frost protection against the use for salmon habitat is the application of a fundamental policy decision within the power of the Board.

The court ultimately concluded that in regulating the unreasonable use of water, the Board can weigh the use of water for certain public purposes (notably the protection of wildlife habitat) against commercial use of water by riparian users and early appropriators and prohibit the use of water for frost control under the circumstances that were before it..

The court does not suggest that at the time the riparian and pre-1914 users began diverting water for frost protection that use was neither beneficial nor reasonable.  In fact, it is clear that it was.  As a result, the court’s decision is, in effect, a determination of unreasonableness, based upon current circumstances.

The opinion does not include any discussion of whether the relative priority of existing uses should be considered when terminating diversions determined to  be unreasonable.  For example, should post-1914 diversions for frost protection be terminated prior to limiting riparian and pre-1914 diversions?  This is the process the State Board has followed in its recent adoption of emergency regulations limiting water diversions in certain watersheds due to lack of adequate water.  It is also reflected in the emergency regulations adopted on July 2, 2014, which establish a streamlined process for the Board to use in curtailing diversions by post-1914 water rights holders.  The July 2 regulations do not extend that curtailment process to riparian and pre-1914 diverters.

The opinion endorses the proposition that the Board has broad authority to determine reasonableness at any time and, based upon changed circumstances, may declare well established uses unreasonable and, therefore, waste and impermissible.  It also suggests that the Board’s determination of priority between two otherwise reasonable uses can result in the termination of one without the implication of a taking.

The Plaintiffs in Light filed a petition for rehearing.  The court, on July 11, 2014, denied the petition, but amended its opinion in response to the argument made by Light that Regulation 862 had the effect of immediately banning frost protection during the relevant period of time.  The court’s amended opinion adds a footnote that acknowledges that Light’s reading of Regulation 862 may be correct, if read literally.  However, it then opines that if the regulation is construed with its accompanying resolution, the regulation can be interpreted to mean that the curtailment of diversions for frost protection would only take place after the local body charged with developing regulations mandated by the Board had completed its task—which the court determined would take more than two years.