The City did not abuse its discretion in finding a residential project to be consistent with the City’s development standards since the project qualified for exemption from those standards under the Density Bonus Law. Bankers Hill 150 v. City of San Diego 74 Cal. App. 5th 755 (2022).

Petitioner, a community association, challenged a decision by the City of San Diego to approve a development application for a 20-story mixed-use building project with a total of 204 dwelling units in the Bankers Hill neighborhood near downtown San Diego.

Petitioner claimed the project was inconsistent with development standards and policies in the City’s General Plan and the Uptown Community Plan, arguing that the project’s design improperly obstructed views, failed to complement neighboring Balboa Park, and towered over adjacent smaller-scale buildings.

The court found that petitioners claims “sidestep[ed] a critical factor in the City’s decision-making process: the application of . . . the Density Bonus Law” (Gov. Code §§ 65915 et seq.), which is designed to encourage the construction of affordable housing. Under the Density Bonus Law, a developer may add additional housing units beyond the zoned capacity and take advantage of other incentives in exchange for including deed-restricted affordable units in a project. If a developer meets the requirements of the Density Bonus Law, the City must permit the increased density and waive any conflicting local development standards, unless certain limited exceptions apply.

Here, the developer included 18 units with deed restrictions to make them affordable to low-income households. With the density bonus, the developer sought to exceed the maximum zoned capacity of 147 units by 57 units. With the development incentives, the developer sought to avoid a setback on one street, eliminate two on-site loading spaces for trucks, and reduce the number of private storage areas for residents. The City could deny the project as inconsistent with these development standards only if it made specific findings that their waiver would (1) not result in any actual cost reductions; (2) adversely affect public health or safety; (3) be contrary to state or federal law. The City Council found there was no substantial evidence to support the denial of the requested incentives.

The court upheld the City Council’s determinations. The City did not abuse its discretion in finding that several policies cited by petitioner did not apply to the project and the record supported the City’s conclusion that the project did not conflict with the policies that were applicable. The record also demonstrated that including the affordable units in the project was only possible if the building was designed as proposed. If the City had denied the requested incentives or failed to waive the inconsistent design standards, it would have physically precluded construction of the project, including the affordable units–which would defeat the Density Bonus Law’s goal of increasing affordable housing.

The City Council properly concluded that the project qualified for the benefits of the Density Bonus Law and that the evidence did not justify refusal to waive the local development standards.

A traffic mitigation fee required for construction of a single-family home did not amount to an “unconstitutional condition” in violation of the takings clause of the Fifth Amendment, and the County complied with the Mitigation Fee Act in assessing the fee. Sheetz v. County of El Dorado, No. C093682 (4th Dist., Oct 19, 2022).

George Sheetz challenged a traffic mitigation fee imposed as a condition to a building permit for a new home on his property. He argued that the fee violated the unconstitutional conditions doctrine applied in the land-use context by Nolan and Dolan and that the County violated the Mitigation Fee Act in adopting and imposing the fee.

Under the unconstitutional conditions doctrine, the government may not ask a person to give up a constitutional right — such as the right to receive just compensation for a taking — in exchange for a development permit where the condition has little or no relationship to the development. Under Nolan and Dolan, there must be an essential nexus between the exaction and the governmental interest sought to be advanced and the government must make an individualized determination that the exaction is related both in nature and extent to the project’s impact. In Koontz v. St. John’s River Management Dist., 570 U.S. 595 (2013), the Court held that the doctrine applies to development fees, which it found to be “functionally equivalent” to the property dedications involved in Nolan and Dolan.                                                                                         

The California Supreme Court has held that the requirements of Nolan and Dolan apply only to fees imposed on an individualized or ad hoc basis, not to fees that are generally applicable to a broad class of property owners through legislative action. Relying on this authority, the Court of Appeal concluded that the unconstitutional conditions doctrine did not apply in this case because the traffic fee was imposed under a legislatively authorized fee program that generally applied to all new residential development within the County.

In support of his Mitigation Fee Act claim, Sheetz argued that the County had improperly failed to evaluate the traffic impacts attributable to his specific project in violation of section 66001(b) of the Act, which provides that the “local agency shall determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion [thereof] attributable to the development on which the fee is imposed.” Relying again on prior caselaw, the Court of Appeal held that section 66001(b) applies only to adjudicatory, case-by-case decisions to impose a fee on a particular project, not to legislatively adopted fees such as the traffic fee in question.

Assessing Sheetz’s broader claim that the County did not comply with the Mitigation Fee Act traffic in adopting and calculating the fee, the court found no error. The fee was adopted as part of the County’s 2004 General Plan, guided by policies designed to limit traffic congestion, including ensuring that roadway improvements were developed concurrently with new development. The fee was based on a transportation study that evaluated a range of factors, including the expected increase in traffic volumes (average daily vehicle trips) from each type of new development based on data published in the Institute of Transportation Engineers Trip Generation Manual, 7th Edition. The record reflected that the County considered the relevant factors and demonstrated a rational connection between those factors and the fee imposed. The limited portions of the record relied upon by Sheetz did not demonstrate that the fee was arbitrary, entirely lacking in evidentiary support, or otherwise invalid under the deferential standard applied to legislatively adopted fees.

­­The Ninth Circuit held that statutory language defining the scope of operations of Twitchell Dam was sufficiently broad to potentially include releases of water to facilitate migration of Southern California Steelhead to the ocean. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation District, No. 21-55479 (9th Cir., Sept. 23, 2022).

Environmental groups sued the agencies that operate the Twitchell Dam in San Luis Obispo County arguing that its operation interfered with endangered Southern California Steelhead migration and constituted an unlawful take under the Endangered Species Act. The groups contended that releases of water from the dam designed to maximize percolation in the riverbed resulted in insufficient flow to the Santa Maria River to sustain Southern California Steelhead migration to the ocean, preventing them from completing their reproductive cycle. They sought an order requiring properly timed releases to support Steelhead migration and reproduction.

Twitchell Dam was constructed in 1958 as authorized by Public Law 774 for the principal purpose of recharging the Santa Maria River Valley’s groundwater aquifer and minimizing the threat of flood damage. The District Court granted summary judgment to the agencies on the ground that PL 774 did not give them discretion to release water from Twitchell Dam for protection of endangered species,

The Ninth Circuit reversed, observing that PL 774 authorized Twitchell Dam to be operated for “other purposes” in addition to the enumerated purposes of “irrigation and the conservation of water, [and] flood control.” This expansive language, the court said, reflected congressional intent to grant the agencies authority to use the dam for a variety of purposes, including adjusting operations to accommodate changed circumstances such as the enactment of new laws. The court cited other instances in which Congress had used limiting rather than broad language in defining permissible dam operations. In the case of Twitchell Dam, Congress expressly provided that the dam could be used for purposes other than those specified in the statute.

The court acknowledged that PL 774 also required the agencies to operate the dam “substantially in accordance with” the plans and recommendations in the Secretary of the Interior’s Report, which contained a recommended flow rate for water releases. To avoid take of Southern California Steelhead, the dam’s flow rate would need to deviate slightly from the recommended flow rate at certain times during the year. But this, the court concluded, was consistent with the text of the statute, which required only substantial compliance rather than strict compliance with the Secretary’s Report.

Because PL 774 gave the agencies discretion to operate Twitchell Dam for purposes other than irrigation, conservation, and flood control, it was error for the District Court to grant summary judgment on the ground that the law did not provide that authority. However, the Ninth Circuit did not decide whether those purposes included adjusting water discharges to support Southern California Steelhead migration, leaving that issue to be considered by the District Court in the first instance.

A CEQA challenge to water allocations by the City of Los Angeles and its Department of Water and Power were barred by the statute of limitations because the allocations were under leases approved years earlier. County of Mono v. City of Los Angeles, No. A162590 (1st Dist., June 30, 2022).

In 2010, the City approved a set of substantially identical leases covering about 6,100 acres of land owned by the City in Mono County. The City’s determination that the leases were categorically exempt from CEQA was not challenged. The leases provided that any supply of water by the City to the leased premises was “conditioned upon the quantity in supply at any given time,” and that “the amount and availability of water, if any, shall at all times be determined solely by the City of Los Angeles.”

Over the eight-year period following approval of the leases, the City provided varying amounts of water to lessees on an annual basis, ranging from zero to 5.4 acre-feet. In March 2018, the City sent lessees copies of a proposed new form of lease — termed the “Proposed Dry Leases” — under which the City would not furnish irrigation water but would, from time to time, provide “excess water” for spreading on the leased land. It also notified lessees that it was performing an environmental evaluation of the Proposed Dry Leases and that the 2010 leases would remain operative in holdover status until completion of environmental review. In May 2018, the City informed lessees that the 2018-19 allocation under the 2010 leases would be 0.71 acre-feet per lease.

The County of Mono, one of the lessees, filed suit contending that the City improperly failed to conduct CEQA review before deciding upon the 2018-19 allocation because the allocation constituted a “new reduced water project,” either on its own or as part of the Proposed Dry Leases.

The Court of Appeal was unpersuaded. Based on a close examination of the history of water allocations under the 2010 leases, the court found no indication that the 2018-19 allocation represented “a turning point toward a low-water policy or Proposed Dry Leases.” It rejected, as unsupported by the evidence, the County’s claim that the City’s prior water allocations had been closely tied to the snowpack and anticipated runoff and that the 2018-19 allocation represented a departure from this practice. Rather, the allocations were only loosely tied to snowpack and runoff estimates and depended on other factors, including the City’s own needs and conservation practices.  

The court also dismissed the County’s claim that the timing of the 2018-19 allocation relative to the Proposed Dry Leases indicated that the City was engaging in de facto implementation of proposed new leases before completing CEQA review. The court pointed out that the City had announced its intention to perform environmental review before approving the new leases and expressly committed to abiding by the 2010 leases while proceeding with that review. The 2018-19 allocation was both within the City’s authority under the 2010 leases and consistent with its prior allocation practices.

Because Mono County’s suit was filed years after the approval of the 2010 leases, it was time-barred. The fact that the 2018-19 allocation was a discretionary decision did not remove it from the ambit of the project approved as part of the 2010 leases, as those leases plainly gave the City authority to make such subsequent discretionary decisions. If Mono County believed the decision to reduce water allocations in specific years would be a substantial change in practice that could have significant environmental effects, it should have raised that argument in 2010 when the City approved the leases that gave it authority to make such decisions.

The court of appeal held that the City’s determination that a mixed-use development project was consistent with applicable general plans policies and standards was supported by substantial evidence. Old East Davis Neighborhood Association v. City of Davis, 43 Cal. App. 5th 895 (2022). 

The Trackside Project is a planned four-story, 48,000-square-foot mixed-use building located in a “transition area” between the Downtown Core and the Old East Davis residential neighborhood.  Under the City’s General Plan, new buildings must “maintain scale transition,” as well as provide an “architectural ‘fit’ with existing scale for new development project[s].” The main issue on appeal was whether substantial evidence supported the City’s finding that Trackside met the “transition” requirements.

Reviewing the applicable policies for promoting, guiding, and regulating growth in the project area, the court observed that they did not provide a formulistic method for determining whether a proposed structure constituted a transition. Rather, this determination relied on subjective measures such as “architectural ‘fit,’” “appropriate scale and character,” and “sensitiv[ity] to the area’s traditional scale and character.”

The key policy at issue — transition — was thus “largely amorphous,” and the dispute was over conflicting evidence on matters such as “do the step-backs, mass shifting, extra wide alley, and other factors create an ‘appropriate scale’ that is ‘sensitive to the area’s traditional scale and character’”?  Under the governing standard of review, the City’s determinations of consistency with the relevant plans could be set aside only if “a reasonable person could not have reached the same conclusion” based on the evidence before the City. Reviewing each of the key consistency determinations, the court found no instances in which a reasonable person could not have reached the same conclusion. Accordingly, the City’s decision was supported by substantial evidence.

The court of appeal held that the Housing Accountability Act (HAA) does not apply to a one-unit single-family home project. Reznitskiy v. County of Marin, 79 Cal.App.5th 1016 (2022). 

Plaintiff applied to the Marin County Planning Commission to build a 4,000-square-foot single-family home on a plot of land in San Anselmo. The Commission denied the application on grounds that the proposed project would adversely affect the existing neighborhood through its relatively large size and environmental effects. Plaintiff sued, arguing that the project was wrongly denied under the HAA. 

On review, the court looked to the structure and purpose of the HAA, observing that the phrase “housing development project” has appeared in the HAA since its inception but has never been fully defined. It found that other references in the statute reflected legislative intent that the statute should apply to a project to construct a “housing development,” not to any project to “develop housing.” Additionally, the stated purpose of the HAA is “to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters.” Neither the language of the HAA nor its legislative history supported an interpretation of “housing development project” to include a one-unit single-family home.  Among the core purposes of the HAA is providing for the housing needs of lower income populations by reducing local agencies’ ability to deny higher-density projects — “a scenario that would never apply to a single-unit project.” The court reasoned it was therefore unlikely that the intent of HAA was to give those who could afford to build their own home enhanced protection against rejection of development application based on subjective criteria.

The Fourth District Court of Appeal held that California courts do not have jurisdiction to adjudicate claims involving objections to regional housing needs assessment (RHNA) allocations. City of Coronado v. San Diego Association of Governments, 80 Cal. App. 5th 21 (2022).

The City of Coronado along with three other cities sued San Diego Association of Governments and its board of directors contending that SANDAG denied the cities a fair hearing when deciding the cities’ administrative appeals of SANDAG’s RHNA allocations. Because SANDAG approved the cities’ final RHNA allocations using a weighted vote rather than a tally vote, the cities claimed that the vote was improper and the final RHNA allocation approvals should be deemed invalid. The cities also alleged that certain Board members were biased against the cities and that the denial of the cities’ appeals was improperly “predetermined.”

The court of appeal, relying on Government Code section 65584.04 and the precedent set in City of Irvine v. Southern California Assn. of Governments, held that the court lacked jurisdiction over the claim. Section 65584.04 states that a council of governments is responsible for developing “a proposed methodology for distributing the existing and projected reasonable housing needs to cities, counties, and cities and counties within in the region . . . .” The court in City of Irvine held that “the administrative procedure established under Government Code section 65584 et seq. … to calculate a local government’s [RHNA] allocation [was] intended to be the exclusive remedy for the municipality to challenge that determination and thereby precluded judicial review of the decision.”

The court rejected the cities’ argument that City of Irvine was not controlling because it did not involve the types of procedural issues raised in this case.  

First, the distinction between substantive and procedural challenges was not drawn in City of Irvine. Rather, City of Irvine broadly held that “the statutes governing the RHNA allocation procedure . . . reflect a clear intent to preclude judicial intervention in the process,” with no suggestion that procedural claims were outside the scope of this holding. While the cities argued that they were not challenging the RHNA allocation itself, but only the procedures that resulted in the allocation, the ultimate relief they sought in their prayer for relief was that the RHNA allocation be rescinded. But City of Irvine established that a judicial challenge seeking an alternative RHNA allocation was barred, and the court was confident that “the Legislature would not have intended to authorize judicial review that would delay the allocation and yet result in the same allocation.”

Second, City of Irvine reasoned that given the intergovernmental nature of the RHNA statutory scheme, a municipality has no enforceable right against a council of governments in its determination of a RHNA allocation. This rationale was not dependent on the purportedly substantive nature of the claim in City of Irvine.  

Third, City of Irvine cited the availability of other potential remedies outside of the judicial system as a reason for concluding that judicial review was barred. The RHNA administrative appeals process itself provides a potential remedy for a municipality to raise objections to its allocation, and the cities raised their procedural objections in the course of their administrative appeal. In addition, the Department of Housing and Community Development is required to approve both the methodology used in developing an RHNA allocation and the final RHNA allocation. These additional administrative procedures made it clear that municipalities are not without recourse in challenging an RHNA allocation. Rather, under City of Irvine, by legislative design, municipalities “have no recourse with the courts.”

Finally, the court noted that the Legislature expressly removed a prior statutory provision authorizing judicial review of RHNA allocations. This signaled to the court that all challenges, “substantive” or “procedural,” were precluded from judicial review.

In short, none of the rationales for the holding in City of Irvine depended on whether the basis for the judicial challenge was procedural or substantive. The court therefore declined to limit that holding to substantive claims, since this would “evade the legislatively imposed limits on judicial review that the [City of Irvine] court sought to enforce.”

The Court of Appeal held that the City of Mount Shasta violated CEQA by approving a wastewater permit for a water bottling plant without making specific findings as to each potentially significant impact identified as required by Pub. Res. Code section 21081. The City’s determination that there were “no unmitigated adverse environmental impacts relating to the alternate waste discharge disposal methods” was insufficient to comply with CEQA. We Advocate Through Environmental Review v. City of Mt. Shasta, 78 Cal. App. 5th 629 (2022).

Crystal Geyser Water Company purchased a defunct water bottling plant in Siskiyou County and sought to reopen it. It applied for a permit from the City to allow the plant to discharge wastewater into the city’s sewer system, which the City granted. The County of Siskiyou served as the lead agency and prepared an EIR for the reopened bottling plant, and the City served as one of several responsible agencies. An environmental group and a local Indian tribe filed petitions for writ of mandate challenging the City’s approval of the wastewater discharge permit, arguing that the City failed to make certain findings under CEQA.

The court agreed with appellants, concluding that the City’s approval violated CEQA’s procedural requirements. The wastewater permit authorized the plant to discharge to the City’s sewer system process, non-process, and sanitary wastewater. The types of discharge included high-strength wastewater from spilled product and internal and external cleaning and sanitizing chemicals; flavor change rinse water; final rinse water from product lines and tanks; condensate, boiler-blowdown water; and cooling-tower-blowdown water. The County’s EIR identified as potential impacts that the wastewater could exceed the capacity of the City’s wastewater treatment plant, as well as that the installation of additional pipelines could result in significant impacts to fishery resources, several endangered species, and cultural resources. (In a separate decision, the Court of Appeal invalidated the County’s EIR, holding that the stated project objectives were unduly narrow and that the EIR should have been recirculated in light of significant new information about project emissions. Our report on that decision is available here.)

The City did not acknowledge the impacts identified in the County’s EIR in its approval of the wastewater permit. It did not say whether those impacts would be mitigated, whether another agency would handle mitigation, or whether mitigation would be infeasible, and it did not supply any reasoning for the required findings. The City instead concluded in a single sentence that the City had reviewed the EIR and “[found] no unmitigated adverse environmental impacts relating to the alternate waste discharge disposal methods.”

The court held that this determination was inadequate under CEQA, ruling that the City was required to find either that significant impacts identified in the EIR had been mitigated or avoided; that measures necessary for mitigation were within the responsibility and jurisdiction of another public agency and had been, or could and should be, adopted by that other agency; or that specific economic, legal, or other considerations made mitigation infeasible. Pub. Res. Code section 21081 (a). Moreover, each agency’s findings must be “accompanied by a brief explanation of the rationale for each finding,” as required by CEQA Guidelines section 15091(a). The court rejected the City’s contention that a responsible agency need only make findings under section 21081 when the EIR identifies significant, unmitigated environmental impacts.

Separately, the court rejected appellants’ argument that the City should have performed additional environmental review because the amended draft of the permit identified impacts that were not addressed in the County’s EIR. The County’s EIR evaluated the potential environmental impacts associated with all governmental approvals, including the City’s wastewater discharge permit. The court explained that the suit against the City was not an appropriate forum for challenging the County’s EIR (citing 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality (Cont. Ed. Bar 2021 update) § 3.23 (“A lawsuit brought against a responsible agency is limited to the actions that the responsible agency takes in approving the project, but does not extend to actions by the lead agency, or to the adequacy of the lead agency’s CEQA review of the project.”)).

The court reversed a decision to grant an implied easement between two homeowners but upheld granting an equitable easement. Romero v. Shih, 78 Cal. App. 5th 326 (2022).

The two parcels in question were owned originally by the Cutlers, who initiated a boundary line adjustment in 1985 and built a fence along the new property line. However, there was no evidence the city ever approved the lot line adjustment or issued a certificate of compliance. Decades later, a dispute arose when new homeowners (appellants) discovered that the fence did not sit upon the city-certified property lines but encroached on 1,296 square feet of their lot. After a five-day trial, the trial court granted respondents an exclusive implied easement and, alternatively, an equitable easement over the entire 1,296-square-foot encroachment.

Appellants argued that the court erred in granting an exclusive implied easement and abused its discretion by creating an equitable easement that was not narrowly tailored to promote justice and was “significantly greater in scope and duration than what is necessary to protect [respondents’] needs.”

The appellate court reversed the exclusive implied easement as the facts of the case did not follow precedent for granting such an easement. The court observed that an exclusive implied easement generally cannot be granted unless the encroachment is de minimis or is necessary to protect the health and safety of the public or for essential utility purposes. Here, the encroachment, totaling 1,296 square feet of appellants’ 9,815-square-foot property, could not reasonably be qualified as de minimis and nothing in the record suggested the encroachment was necessary for essential utility purposes or to protect general public health or safety. The court rejected respondents’ argument that the implied easement would be non-exclusive since both parties and the trial court agreed that the easement would be “essentially for exclusive use.” The court found no evidence that the subsurface of the 1296 sq ft was usable for any “practical purpose” for the appellants; therefore, the easement could not be understood as a non-exclusive.

The court affirmed the creation of an equitable easement in favor of the respondents because the ruling adhered to all required elements for an equitable easement. First, there was substantial evidence that neither respondents nor their real estate agent had prior knowledge of the encroachment. Second, appellants were not irreparably injured by the easement as there was no evidence of any concrete plans to utilize the land, undue tax burden, or likelihood of “premises liability within connection with the encroachment area.” Third, not granting an equitable easement would result in disproportionate hardship on respondents, evidenced by the diminution in their property value of more than $130,000 and the reduction of their driveway width that would severely limit most vehicles from using the driveway and would preclude individuals from opening car doors to exit or enter a vehicle. Finally, the court ruled that the scope and duration of the equitable easement were narrowly tailored, providing that the easement would terminate if respondents “were to cease [their] continued use of that land for a driveway, planter and wall/fence.” The court noted that appellants were given multiple chances at trial to narrow the scope further yet chose not to do and “opted for an all-or-nothing approach.”

A California Court of Appeal held that the EIR for a public water authority’s river diversion and water storage project adequately described the unadjudicated waters to be diverted and adequately analyzed impacts to water rights and groundwater supply.  Buena Vista Water Storage District v. Kern Water Bank Authority 76 Cal. App. 5th 576 (2022).

Until 2010, the Kern River had been designated by the State Water Resources Control Board as a fully appropriated stream, and only those who held an appropriative water right could divert Kern River water.  The State Board removed the fully appropriated designation after observing that, in certain wet years, unappropriated water in the form of excess flood flows remained in the Kern River.  Shortly thereafter, the Kern Water Bank Authority applied to the State Board for a new appropriative right to divert and store 500,000 acre-feet per year (AFY) in wet years and prepared and certified an EIR for a corresponding water supply reliability project using existing infrastructure.  The EIR’s stated objectives were “to secure water rights to unappropriated Kern River Water to maximize use of Ken Water Bank Authority’s existing capabilities,” to “continue allowing Kern River water to be diverted . . . during times of excess Kern River flows for recharge and later recovery,” and to enhance “water supply reliability, particularly in dry years.”  The EIR acknowledged that, under observed hydrologic conditions, excess flood flows would be available for diversion in an estimated 18 percent of all years.  The corresponding water rights permit application specified that Kern Water Bank Authority sought to divert only during years when water was available, and the State Board relied upon the Authority’s EIR to approve the diversion permit.

The Buena Vista Water Storage District, a senior water rights holder in the Kern River, sought a writ of mandate to set aside the EIR and diversion permit. 

The EIR Satisfied CEQA’s Requirement for an Accurate, Stable and Finite Project Description Without Quantifying Adjudicated and Existing Appropriative Water Rights

The Court of Appeal found that the EIR satisfied CEQA’s requirement that environmental analysis be based upon a clear, stable and finite project description.  Although the EIR used multiple phrases and references to describe the hydrologic conditions under which diversions would occur, the court found its description of “flood flows,” water that the Authority “has historically received,” and “unappropriated water” to be internally consistent.  The court also found no instability arising from the proposed 500,000 AFY limit, because CEQA allows for flexible parameters to describe a diversion that will occur during changing hydrologic conditions and subject to a finite maximum diversion.

For similar reasons, the Court of Appeal rejected the contention that CEQA required the EIR to “actually quantify the amount that [existing senior] water right holders” are entitled to, include “quantified measurements of water used by existing Kern River water rights holders,” and “quantified measurements f the water those rights holders have the right to divert.”  Looking to CEQA Guidelines Section 15124, the Court of Appeal found that the EIR included the minimum requirements by identifying (a) the location and boundaries of the project, (b) a statement of its objectives, (c) a general description of the project’s technical, economic, and environmental characteristics, and (d) a statement of the intended use of the EIR.  None of these elements required the Authority to specifically quantify existing water rights in either the project description generally or the environmental setting descriptions in the EIR.  The court found that such a requirement would be particularly onerous given that there had never been a stream-wide adjudication of the Kern River in which such rights had been officially quantified.  In essence, the court found that where a project proponent seeks to divert and beneficially use unappropriated surface waters and that intention is reflected in an adequately finite and stable project description, CEQA does not require it to inventory existing appropriated water rights in the water source.

The EIR Adequately Evaluated Impacts on Water Supply

Last, the Court of Appeal ruled that the EIR’s analysis of water supply impacts was supported by substantial evidence notwithstanding the failure to quantify existing water rights.  The EIR had properly used historical measurements of actual diversions as the baseline against which to evaluate impacts on water supply and concluded based on evidence in the record that water for the project would be available about 18 percent of the time.  The EIR’s conclusion that no mitigation would be required because diversions would only occur surplus to existing proprietary rights was therefore supported by substantial evidence.

The court also found that the EIR adequately analyzed impacts associated with groundwater storage and recovery aspects of the project.  Specifically, the court concluded that the EIR’s less-than-significant impact finding was supported by substantial evidence because the EIR analyzed effects upon groundwater withdrawals compared to baseline conditions and concluded that there would be no increased withdrawals or lowering of the water table.  The EIR specifically disclosed that maximum groundwater recovery volumes in dry years would not exceed the quantities of water diverted and banked in wet years during periods where surplus water was available for storage.