Over a quarter century of CEQA litigation over the validity of an agreement between the Department of Water Resources and State Water Project contractors finally came to an end with the court of appeal’s decision in Central Delta Water Agency v. Department of Water Resources, 69 Cal. App. 5th 170 (2021), and the California Supreme
State Water Board Has Authority to Implement Temporary Emergency Regulations Curtailing Water Diversions Without Prior Evidentiary Hearing
The Third Appellate District held that the State Water Resources Control Board has the authority to issue temporary emergency regulations and curtailment orders which establish minimum flow requirements, regulate unreasonable use of water, and protect threatened fish species during drought conditions. Stanford Vina Ranch Irrigation Co. v. State of California, No. C085762 (3rd Dist., June 18, 2020)
During California’s severe drought period in 2014 and 2015, the State Water Board adopted emergency regulations and curtailment orders on three tributaries of the Sacramento River, including Deer Creek in Tehama County. The regulations were established pursuant to urgency legislation authorizing the State Water Board “to prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water,” or “to require curtailment of diversions. . . .” Wat. Code, §1058.5. The regulations issued by the Water Board limited the diversion of water from Deer Creek for certain periods in order to maintain the required flow of water and protect Chinook salmon and steelhead trout, two threatened species affected by the drought during their migratory cycles.
Petitioner, a non-profit irrigation company that operates diversion dams and ditches for agricultural use in Deer Creek, filed suit challenging the regulations. Petitioner noted that it was entitled by a 1923 judicial decree to use roughly 66 percent of the flow of Deer Creek and argued that the Water Board was required to hold an evidentiary hearing before issuing and implementing the regulations. It further argued that the regulations resulted in a taking of its vested water rights and that the Water Board did not comply with due process under the federal and California constitutions.
The appellate court first found that the Water Board’s statutory authority under the urgency legislation was constitutionally valid and that the temporary emergency regulations were consistent with article X, section 2 of the California Constitution, which ordains conservation of water resources. The court also concluded that adoption of the regulations was not arbitrary, capricious, or lacking in evidentiary support.
Continue Reading State Water Board Has Authority to Implement Temporary Emergency Regulations Curtailing Water Diversions Without Prior Evidentiary Hearing
Supreme Court To Decide If CEQA Review Is Required For Well Permits.
The Supreme Court of California has granted review of two cases to resolve a split among courts of appeal over whether the issuance of well permits pursuant to state standards is subject to CEQA. California Water Impact Network v. County of San Luis Obispo and Protecting Our Water & Environmental Resources v. Stanislaus County.
At the forefront of these cases is whether the standards issued by the Department of Water Resources for well construction give local agencies any discretion when issuing well permits. Water is a critical resource in the state and with enactment of the Sustainable Groundwater Management Act in 2014, groundwater, particularly its sustainable withdrawal and quality, are issues receiving more attention. Consequently, the practice of ministerial approval of well construction permits by local agencies without discretionary environmental review have come under increasing scrutiny.
In both California Water Impact Network and Protecting Our Water & Environmental Resources, plaintiffs alleged that the counties’ practice of treating approval of well construction permits as a ministerial action results in hundreds of permits being issued each year without CEQA review. The plaintiffs assert that this practice, and the counties’ respective ordinances, violate CEQA because the state standards are not entirely objective, rather, they give the counties discretion to consider local environmental factors when issuing a permit. It is against this backdrop that the Court will consider both cases. The Court’s decision will likely affect how well construction permits are reviewed and issued by local agencies throughout the state.
Water Code Section 13801 requires local agencies to adopt the minimum standards established by DWR for well construction. These standards, in DWR Bulletins No. 74-81 and 74-90, provide guidance on well construction, location, surface features, seals, casing materials and so forth with the goal of preventing groundwater contamination and pollution. Stanislaus County’s well ordinance incorporates both DWR Bulletins, while San Luis Obispo County’s ordinance only incorporates DWR Bulletin 74-81, though in practice, the county also applies the standards in DWR Bulletin 74-90.
Continue Reading Supreme Court To Decide If CEQA Review Is Required For Well Permits.
MOU Allocating Responsibility for Development of Groundwater Management Plan Not a Project Under CEQA
The Fourth Appellate District has held that a memorandum of understanding between a water district, county, property owner, and water company outlining mutual responsibilities for preparing a groundwater management plan governing the installation and operation of groundwater extraction wells was not a “project” requiring review under CEQA. The court based its decision on its conclusion…
Quieting title to groundwater rights does not necessarily require quantification of prescriptive losses
The Sixth District Court of Appeal has ruled that a judgment quieting title to overlying rights to groundwater in times of basin surplus does not require quantification of the specific amount of prescriptive rights that may previously have been established against each overlying landowner. City of Santa Maria v. Adam, et al., No.…
Vesting Rights Restrictions of Subdivision Map Act Do Not Bind Water District
A water district is not subject to the same vesting rights as a local agency under the Subdivision Map Act. Thus, the Subdivision Map Act does not restrict a municipal utility district’s authority to require an easement as a condition of providing water service to a residential lot on a newly-subdivided parcel. Tarbet v. East Bay Municipal Utility District, First Appellate District Case No. A140755, April 29, 2015.
In 2005, the County of Alameda approved a parcel map which subdivided a parcel into three lots. A condition of approval required that that each lot be connected to the East Bay Municipal Water District water system and the parcel map included an easement for a District water main. When the subdivider sought a letter confirming that water service would be available for each lot, the District indicated it would provide water service contingent upon compliance with its regulations.
Tarbet bought one of the lots and applied for water service. The District provided a water service estimate for installing a service connection, based on an additional 15-foot easement onto Tarbet’s property for the installation and maintenance of a water main and drain valve. Tarbet rejected the requested easement, and the District consequently refused to provide service.
Continue Reading Vesting Rights Restrictions of Subdivision Map Act Do Not Bind Water District
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.
On 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.
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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 appeal, 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…
Renewal of Interim Contracts For Delivery of Central Valley Project Water to Districts an Ongoing Project Exempt from CEQA
In February 2012, the Westlands Water District and related water distribution districts entered into two-year interim renewal contracts with the U.S. Bureau of Reclamation relating to the Bureau’s ongoing provision of Central Valley Project water to the Districts. The purpose of the interim contracts was to continue the existing terms for water delivery in advance…
Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?
Every few years, with El Nino-like regularity, a wave of interest in CEQA reform sweeps through the business community, accompanied by pleas to the legislature to overhaul the statute. In the end, few substantive changes are made. This year is no exception. (See June 14th post).
Many of the recurring concerns involve the unpredictability of litigation challenging EIRs. As is illustrated by the recent appellate court opinion in North Coast Rivers Alliance v Marin Municipal Water District, that unpredictability arises not from deficiencies in CEQA’s standard for judicial review, but from the failure of some courts to apply it.
The trial court in North Coast Rivers put the EIR a water district had prepared for a desalination project under a microscope, and found its treatment of eleven separate issues “inadequate.” By contrast, in a straightforward application of CEQA’s standard of review — which requires judicial deference to agency findings of fact and policy determinations — the court of appeal reversed the lower court judgment and upheld the EIR.
Among other things, the court of appeal’s meticulous and carefully reasoned opinion addresses:
- AB 32 standards and greenhouse gas significance thresholds
- Significance thresholds for aesthetic impacts
- Mitigation standards and deferred mitigation
- Description of the affected environment
- Use of pilot studies to assess potential impacts
- Treatment of regulatory agency protocols for analyzing impacts
- Analysis of inconsistencies with relevant plans
- Triggers for recirculation of an EIR
A detailed summary of the trial and appellate courts’ contrasting rulings follows.
Continue Reading Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?