Water Supply Planning A Legal Overview

1
Water Supply PlanningA Legal Overview

• Edward J. Casey
• Weston Benshoof Rochefort Rubalcava MacCuish
• 333 South Hope Street, 16th Floor
• Los Angeles, California 90071
• [phone], ecasey_at_wbcounsel.com
• May 18, 2004

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Overview of Presentation

• Review of Case Law Leading Up To SB 610/221
• Review SB 610/221 (Enacted in 2002)
• Review Legal Requirements for UWMPs
• Identify Open Questions

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CEQA Cases Pre 610/221

• Not Many CEQA Cases Concerning Water Supply Pre -
  1990s
• Stanislaus (1995)
• One of First CEQA Cases Dealing with Water Supply
• 25-Year, Phased Project
• Firm Water Supply Only Identified For First Phase
  (5 years)
• EIR Invalidated Because No Analysis of Long-Term
  Water Supplies

4
CEQA Cases Pre 610/221

• County of Amador (1999)
• CEQA Challenge To Water Agencys Adoption of
  Long-Term Water Supply Program
• Program Planned For Additional Water Supplies To
  Meet Anticipated Growth In Draft General Plan
• EIR Invalidated For Lack of Analysis of Growth
  Impacts From Additional Water Supplies

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CEQA Cases Pre 610/221

• Newhall Ranch Trial Court Decision (2000)
• Three Sources of Waters Reclaimed, Flood Flows,
  SWP
• SWP
• Cannot Assume Full Contractual Entitlements
• Only Evidence Before Court Was Historical
  Deliveries
• Flood Flows
• Inadequate Evidence Re Ability of Aquifer To
  Store Water
• Death Knell of Will Serve Letter

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CEQA Cases Pre 610/221

• Newhall II (2003)
• Pre 610/221 EIR
• Water Supply Analysis Assumes 100 SWP
  Entitlements During Wet Years, 50 During Dry
  Years
• EIR Struck Down
• Insufficient Evidence Supporting Assumptions
• Key Factor ? SWP System Not Fully Built Out

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CEQA Cases Pre 610/221

• PCL/Monterey Amendments
• Paper Water
• Full SWP Entitlement Is A Hope,
• Actual, Reliable Water Supply Less Than
  Entitlement
• Connection Between Land Use Planning and Water
  Supply
• Condemns Land Use Planning Based On Paper Water
  
• Worst Case Scenario
• Need To Analyze Long-Term Shortage Scenario

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CEQA Cases Pre 610/221

• Save Our Peninsula (Monterey County ) (2001)
• Groundwater Overdraft
• Multiple Issues Need To Be Analyzed

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CEQA Cases Pre 610/221

• Napa Citizens (2001)
• Airport Development Project
• Source of Water Identified
• EIR Still Struck Down
• Water Source Still Not Firm Agreements Still
  Needed
• Not Need Guaranteed Source, But Need To Analyze
  Back-up Source (Worst Case Scenario)

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CEQA Cases Pre 610/221

• Friends of Eel River (2003)
• Sonoma County Water Agency
• Proposed Project to Increase Water Diversion from
  Russian River
• EIR Struck Down Because No Analysis of PGE
  Projects That Would Decrease Amount of Water
  Discharged into Russian River

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CEQA Cases Pre 610/221

• San Joaquin Raptor (2003)
• New UC Campus at Merced
• Proposed Source of Water Was Groundwater
• Basin Near Overdraft
• EIR Upheld Based on Citys Water Supply Plan
• Citys Proposed Supply Projects Provide
  Sufficient Basis to Conclude No Significant Water
  Impacts

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Lessons Learned

• Build It, and Water Will Follow
• Days Are Over
• Demonstrate Long-Term Supplies Based on Evidence
• Need To Address Worst Case Scenarios
• Drought/Loss of Supplies/Third Party Actions
• Groundwater Carries Special Problems
• Connection Between Water Supply Planning and Land
  Use Planning
• Not Need Guaranteed Water Supply
• Reasonable Probability/Certainty

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SB 610/221

• Essential Elements
• Demonstrate Sufficient Water Supply to Meet
  Project and Cumulative Demand in Normal, Single
  and Multi-Dry Years Over 20 Year Horizon
• List of Qualifying Projects
• 500 residential units or equivalent water demand
• Substantial Evidence Test Applies
• Projections Not Guarantee
• Can Rely on Future Water Supplies Depending on
• Contracts, Capital Budget, Permits, Water Rights
• Special Rules For Groundwater

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Guideline Documents

• DWRs Guidelines for SB 610/221
• DWRs Guidelines for Assessing State Project
  Water
• MWDs Reliability Report of 2003

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UWMPs

• Urban Water Management Plans
• 610/221 Both Provide That Information and
  Projections in UWMP May Be Used in 610/221
  Reports
• UWMPs Prepared Every Five Years
• New Requirements Re Groundwater
• CLWAs UWMP Challenged in Court
• Challenge Rejected by Trial Court
• Heavy Reliance on Substantial Evidence Test and
  Expert Opinion

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Open Legal Questions

• Attack on Plan Documents
• UWMPs, MWDs Reliability Report, Etc.
• When Can Rely, Or Not Rely, On Plan Documents?

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Open Legal Questions

• Groundwater As Source
• Issue Is Legal Entitlement to Produce Groundwater
  and Third Party Impacts
• Types of Basins
• Adjudicated
• Managed But Not Adjudicated
• Neither Adjudicated Nor Managed
• Red Flag

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Open Legal Questions

• Proving Likelihood of Additional Water Supply in
  Future
• Required to Show Permits, Plans, Contracts,
  Capital Budgets
• When Are Proposed Plans Sufficiently Ripe?

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Open Legal Questions

• Worst Case Planning How Much Needed?
• Existing Supplies
• Back-up Plans

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Open Legal Questions

• Connection Between Land Use Planning and Water
  Supply Planning
• Who Does What and When?