Water supply planning a legal overview
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Water Supply Planning A Legal Overview. Edward J. Casey Weston Benshoof Rochefort Rubalcava & MacCuish 333 South Hope Street, 16 th Floor Los Angeles, California 90071 (213) 576-1005, [email protected] May 18, 2004. Overview of Presentation. Review of Case Law Leading Up To SB 610/221

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Water Supply Planning A Legal Overview

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Water supply planning a legal overview

Water Supply PlanningA Legal Overview

Edward J. Casey

Weston Benshoof Rochefort Rubalcava & MacCuish

333 South Hope Street, 16th Floor

Los Angeles, California 90071

(213) 576-1005, [email protected]

May 18, 2004


Overview of presentation

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


Ceqa cases pre 610 221

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


Ceqa cases pre 610 2211

CEQA Cases Pre – 610/221

  • County of Amador (1999)

    • CEQA Challenge To Water Agency’s 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


Ceqa cases pre 610 2212

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


Ceqa cases pre 610 2213

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


Ceqa cases pre 610 2214

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


Ceqa cases pre 610 2215

CEQA Cases Pre – 610/221

  • Save Our Peninsula (Monterey County ) (2001)

    • Groundwater Overdraft

    • Multiple Issues Need To Be Analyzed


Ceqa cases pre 610 2216

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)


Ceqa cases pre 610 2217

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 PG&E Projects That Would Decrease Amount of Water Discharged into Russian River


Ceqa cases pre 610 2218

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 City’s Water Supply Plan

      • City’s Proposed Supply Projects Provide Sufficient Basis to Conclude No Significant Water Impacts


Lessons learned

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


Sb 610 221

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


Guideline documents

Guideline Documents

  • DWR’s Guidelines for SB 610/221

  • DWR’s Guidelines for Assessing State Project Water

  • MWD’s Reliability Report of 2003


Uwmps

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

  • CLWA’s UWMP Challenged in Court

    • Challenge Rejected by Trial Court

      • Heavy Reliance on Substantial Evidence Test and Expert Opinion


Open legal questions

Open Legal Questions

  • Attack on Plan Documents

    • UWMPs, MWD’s Reliability Report, Etc.

  • When Can Rely, Or Not Rely, On Plan Documents?


Open legal questions1

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


Open legal questions2

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?


Open legal questions3

Open Legal Questions

  • Worst Case Planning – How Much Needed?

    • Existing Supplies

    • Back-up Plans


Open legal questions4

Open Legal Questions

  • Connection Between Land Use Planning and Water Supply Planning

    • Who Does What and When?


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