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Water Supply Planning: Legal Insights and Requirements

This overview delves into water supply planning legalities, case studies, and key factors for meeting demands sustainably. Topics include historical case laws, legislative frameworks like SB 610/221, the importance of long-term water supply analysis in land use planning, and the necessity of addressing worst-case scenarios. Lessons learned and essential elements for demonstrating water supply sufficiency are discussed, emphasizing evidence-based projections and compliance with groundwater guidelines. UWMPs, DWR's guidelines, and MWD's reliability reports play crucial roles in ensuring reliable water planning. The presentation highlights the need to balance current water sources with future demands, navigate legal challenges, and advocate for a sustainable water management approach.

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Water Supply Planning: Legal Insights and Requirements

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  1. 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, ecasey@wbcounsel.com May 18, 2004

  2. 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

  3. 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 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

  5. 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

  6. 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

  7. 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

  8. CEQA Cases Pre – 610/221 • Save Our Peninsula (Monterey County ) (2001) • Groundwater Overdraft • Multiple Issues Need To Be Analyzed

  9. 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)

  10. 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

  11. 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

  12. 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

  13. 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

  14. Guideline Documents • DWR’s Guidelines for SB 610/221 • DWR’s Guidelines for Assessing State Project Water • MWD’s Reliability Report of 2003

  15. 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

  16. Open Legal Questions • Attack on Plan Documents • UWMPs, MWD’s Reliability Report, Etc. • When Can Rely, Or Not Rely, On Plan Documents?

  17. 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

  18. 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?

  19. Open Legal Questions • Worst Case Planning – How Much Needed? • Existing Supplies • Back-up Plans

  20. Open Legal Questions • Connection Between Land Use Planning and Water Supply Planning • Who Does What and When?

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