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Water Supply Planning A Legal Overview

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, ecasey@wbcounsel.com 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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  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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