Best Best & Krieger News Feedhttp://www.bbklaw.com/?t=39&format=xml&directive=0&stylesheet=rss&records=20&LPA=492Best Best and Krieger is a Full Service Law Firmen-us01 May 2015 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssCalifornia Water Law & Policyhttp://www.bbklaw.com/?t=40&an=38936&format=xml<p>It's official. The drought continues.</p> <p>But 2015 is very different from 2014: Gov. Jerry Brown has ordered sweeping new requirements for urban and agricultural water conservation; the State Water Resources Control Board has reduced water diversions via water right curtailment orders and rulemakings; the Water Bond has passed and in this new era of intense, &quot;mega-drought,&quot; everyone is looking at water reuse, recycling, and desalination to help bridge the gap between frighteningly low water availability and ever-increasing water demand.</p> <p>With these and other topics in mind, Argent Communications is presenting a two-day conference California Water Law &amp; Policy, co-chaired by BB&amp;K Partner Steven Anderson. BB&amp;K attorneys Andre Monette, Kelly Salt and Roderick Walston are also speaking at the conference, which is co-sponsored by the firm.</p> <p>This informative, practice-oriented two-day event is a must-attend for anyone who needs to understand California's complex water issues. Whether you're an attorney, water district staff or board member, federal or state government practitioner, consulting engineer, city or county counsel or planner, environmental organization representative, developer or agricultural business owner, you'll get the latest detailed updates on these and other crucial and complex issues.<br /> <b><i><br /> Mention BB&amp;K when registering and receive $100 off the tuition price.</i></b></p> <p><u>BB&amp;K Speakers</u></p> <p><b>Steve Anderson</b>, Conference Overview<br /> Monday, June 15, 8:30 a.m.<br /> Tuesday, June 16, 8:30 a.m.</p> <p><b>Andre Monette</b>, &ldquo;Water Quality Control and Drought: The Legal Aspects of Stormwater Capture and Use&rdquo;<br /> Monday, June 15, 1:30 p.m.</p> <p><b>Kelly Salt</b>, &ldquo;Prop. 218: The Future of Tiered Conservation Rates (San Juan Capistrano Case):<br /> Monday, June 15, 3:45 p.m.</p> <p><b>Roderick Walston</b>, &ldquo;Developing Groundwater Disputes: A Closer Look &mdash; Does the Reserved Rights Doctrine Apply to Groundwater? The Agua Caliente Case&rdquo;<br /> Tuesday, June 16, 10:15 a.m.</p> <p><strong>When</strong><br /> Monday, June 15 &ndash; Tuesday, June 16, 2015</p> <p><strong>Where</strong><br /> Hotel Nikko San Francisco<br /> <a target="_blank" href="http://images.magnetmail.net/images/clients/ARGENT/attach/2015CWLBrochure.pdf"><span style="color: #0000ff">Click here</span></a> for more information</p> <p>To register, <a target="_blank" href="https://www.registrationheadquarters.com/events/?da5124fee1c34386ad493ed9a7fad8c4a&amp;mmurlid=72082185"><span style="color: #0000ff">click here</span></a></p>Conferences & Speaking Engagements15 Jun 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38936&format=xmlThe Administrative & Public Environmental Law Conferencehttp://www.bbklaw.com/?t=40&an=39300&format=xml<p>Best Best &amp; Krieger Managing Partner Eric Garner and Of Counsel Sara Owsowitz will be speaking at The Administrative &amp; Public Environmental Law Conference, co-presented by The State Bar of California Public and Environmental law sections. BB&amp;K is a sponsor if of the one-day conference.</p> <p><u>BB&amp;K Speakers</u></p> <p><b>Sarah Owsowitz</b>, &ldquo;Preparing the CEQA Administrative Record&rdquo;<br /> 11:10 a.m. &ndash; 12:25 p.m.<br /> What goes into (and what stays out of) the administrative record prepared in California Environmental Quality Act litigation is one of the most difficult and controversial topics facing practitioners. What is required? What may be excluded? What is privileged? What about emails? What if a Public Records Act request is filed concurrently? Who pays for it all? Panelists will also provide advice on the use of joint defense agreements to maintain privileges between agency and applicant counsel communications involving scoping potential mitigation measures and responding to comments. This session will address recent case law answering these questions and provide practical tips for compliance.</p> <p><b>Eric Garner</b>, &ldquo;The Effects of California's Drought on Public Entities&rdquo;<br /> 3:15 &ndash; 4:45 p.m.<br /> This session will focus on legislative and regulatory developments resulting from California's long-standing drought, including from the state and local water boards and local entities. Panelists will provide advice and discuss the enforcement of programs to limit watering, diversions and code enforcement. The session will also address current water law rights and usage priorities, including the State's recent assumption of jurisdiction over groundwater rights and any anticipated changes to these laws.</p> <p><strong>When</strong><br /> Friday, June 12, 2015</p> <p><strong>Where</strong><br /> UC Hastings College of the Law<br /> San Francisco</p> <p>For more information or to register, <a target="_blank" href="http://publiclaw.calbar.ca.gov/Education/TheAdministrativePublicEnvironmentalLawConf.aspx#sched"><span style="color: #0000ff">click here</span></a>.</p>Conferences & Speaking Engagements12 Jun 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39300&format=xmlWebinar: AB 52's New CEQA Requirementhttp://www.bbklaw.com/?t=40&an=38776&format=xml<p>Best Best &amp; Krieger attorneys Sarah Owsowitz and Christopher Diaz will present a webinar for the State Bar of California Public Law Section, titled: &ldquo;AB 52&rsquo;s New CEQA Requirement.&rdquo; Starting in July 2015, AB 52 will require all public agencies acting as lead agencies under CEQA to enter into consultation with requesting tribes prior to the release of a negative declaration or an EIR. Consultation may concern the level of environmental review necessary, the significance of a tribal cultural resource and of a project's impact on that resource, and project alternatives and/or mitigation, including those recommended by the tribe. A &quot;tribal cultural resource&quot; &ndash; a new term for CEQA &ndash; is any site, feature, place, cultural landscape, sacred place, or object with cultural value to a California Native American tribe. Significantly, AB 52 applies not just to federally recognized tribes (as is the case with Section 106 review under the National Historic Preservation Act), but to all tribes on the California Native American Heritage Commission's &quot;contact list.&quot;</p> <p><strong>When</strong><br /> Thursday, May 21, 2015<br /> Noon &ndash; 1 p.m.</p> <p><a target="_blank" href="http://publiclaw.calbar.ca.gov/"><span style="color: #0000ff">For more information or to register, click here.</span></a></p>Conferences & Speaking Engagements21 May 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38776&format=xmlCalifornia's Water: Drought, Finding Water, The Water Bond and Interpreting New Groundwater Regulationhttp://www.bbklaw.com/?t=40&an=37949&format=xml<p>Water is our most essential resource and is at the center of California&rsquo;s economy. The current historic drought has highlighted this importance and made it very obvious how dependent California is on our &nbsp;aging infrastructure that, in many cases, moves water&nbsp;hundreds of miles. As California faces the prospect of a worsening drought, it is imperative that we understand the water challenges we face and work together to develop solutions. A continuing shortage &nbsp;of water will impact almost all aspects of our economy.</p> <p>Program Chair and BB&amp;K Managing Partner <b>Eric Garner</b>, and attorneys <b>Joseph Byrne</b>, <b>Kelly Salt</b> and <b>Glen Price</b>, will be joined by other leaders in the water field to discuss important new water-related legislation, what the public and private sectors are doing to deal with the &nbsp;drought, and what our water future holds. This is a critical time in water law. How we address &nbsp;the pressing issues that face us will impact the future of California in many ways, including &nbsp;the State&rsquo;s continued &nbsp;development and growth. The program is designed for those in both the business and public sectors who want the latest information on &nbsp;how water issues may affect them going forward. <br /> <br /> <strong>To recieve a $100 discount, register by telephone to 206-463-4400 or 800-574-4825 and use code &quot;FAC100&quot;</strong></p> <p><strong>BB&amp;K Speakers<br /> </strong><br /> Eric Garner<br /> 9 a.m. Introduction and Overview<br /> 3 p.m. &ldquo;Where Do You Stand? Complying with New Groundwater Regulations and Preparing for More Legislation&rdquo;</p> <p>Kelly Salt<br /> 11:15 a.m. &ldquo;Water Conservation: Best Practices and Dealing with the Financial Impacts of Successful Conservation&rdquo;</p> <p>Glen Price<br /> 1:45 p.m. &ldquo;Making Sure Your New Development Has Water and/or Rights&rdquo;</p> <p>Joseph Byrne <br /> 4 p.m. &ldquo;How to Find Money and Finance Water Projects as Regulatory Requirements Increase&rdquo;</p> <p><strong>When</strong><br /> Friday, May 15, 2015<br /> 9 a.m. &ndash; 4:30 p.m.</p> <p><strong>Where</strong><br /> DoubleTree by Hilton L.A. Downtown<br /> 120 S. Los Angeles Street<br /> Los Angeles, CA 90012<br /> The seminar will also be available via a live webinar and through pre-orders of video-on-demand or DVDs.</p> <p>For more information or to register, visit <a target="_blank" href="http://www.theseminargroup.net/seminardetl.aspx?id=1467"><span style="color: #0000ff">The Seminar Group&rsquo;s website</span></a>.</p>Conferences & Speaking Engagements15 May 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=37949&format=xmlGlobal Perspectives on Water and Societyhttp://www.bbklaw.com/?t=40&an=39297&format=xml<p>Best Best &amp; Krieger LLP Managing Partner Eric Garner will be speaking on a panel titled &ldquo;Global Perspectives on Water and Society&rdquo; at Water Technology Hub&rsquo;s Water Technology &amp; Funding Summit. BB&amp;K is also a sponsor of the one-day event.</p> <p><strong>When</strong><br /> May 14, 2015<br /> 9:10 a.m.</p> <p><strong>Where</strong><br /> Hilton Pasadena</p> <p>For more information or to register, <a target="_blank" href="http://watertechnologyhub.com/Events"><span style="color: #0000ff">click here.</span></a></p>Conferences & Speaking Engagements14 May 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39297&format=xmlSustainable Groundwater Management Acthttp://www.bbklaw.com/?t=40&an=39353&format=xml<p>Best Best &amp; Krieger LLP attorney Sarah Foley will be speaking on the Sustainable Groundwater Management Act during this one-hour CLE Brown Bag program by the San Diego Bar Association Environmental and Land Use law sections. The historic groundwater management act was passed after Gov. Jerry Brown&rsquo;s declaration and proclamation of a drought emergency in January 2014. In times of drought many local agencies, business and individuals turn to groundwater to make up the difference based on a reduction in surface water supply.&nbsp; For those who rely on groundwater, many have reached the bottom of their wells and there is nothing left to pump.&nbsp; Because of a concern for overuse of groundwater and no real accountability, this has brought the sweeping legislative reform.</p> <p>The speakers will discuss the key components of the Act, the issues unresolved and additional measures the State Water Resource Control Board is taking to conserve surface water, promote recycled water and mandate public conservation efforts.&nbsp; We are still in a dire state of drought today and this reality highlights the fact that water demand will continue to increase, while supplies will continue to face both hydrologic and regulatory constraints.&nbsp; This growing tension will bring challenges, opportunities and a host of consequences. Fasten your seatbelts as California water law speeds into the 21st century.</p> <p><strong>When</strong><br /> Tuesday, May 5, 2015<br /> Noon &ndash; 1 p.m.</p> <p><strong>Where</strong><br /> San Diego County Bar Association Conference Center</p> <p>For more information or to register, <a target="_blank" href="https://www.sdcba.org/index.cfm?pg=events&amp;evAction=showDetail&amp;eid=22216"><span style="color: #0000ff">click here.</span></a></p>Conferences & Speaking Engagements05 May 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39353&format=xmlMission: Possible - Taking Charge of Changehttp://www.bbklaw.com/?t=40&an=38509&format=xml<p>Best Best &amp; Krieger attorney Joseph Byrne, chair of the California Water Commission, and partners Paeter Garcia and Kelly Salt will be speaking at the Association of California Water Agencies 2015 Spring Conference and Exhibition &ldquo;Mission: Possible &ndash; Taking Charge of Change.&rdquo;</p> <p>Joe will be delivering the luncheon keynote address on Thursday, May 7 at 11:45 a.m. He will share first steps in developing the Commission&rsquo;s Water Storage Investment Program as part of the implementation of the water bond made possible with the passage of Proposition 1.</p> <p>Kelly will be speaking on Wednesday, May 6 at 10 a.m. on &ldquo;Overcoming Public Scrutiny and Challenges in the Rate Setting Process &ndash; Lessons Learned from San Juan Capistrano.&rdquo; In September 2013 the Orange County Superior Court invalidated a City&rsquo;s water rates (Capistrano Taxpayers Assoc., Inc. v. City of San Juan Capistrano) because the City did not prove that the price difference between its tiered-rates were proportional to the costs of providing water services to its customers. The City lacked an administrative record that justified their current rate structure and explained the rationale behind the tiered pricing. In addition, many rate-payers and even City Council members had strong opinions about how the utility should be run, generating a general lack of trust within the community. Panelists will discuss the lessons learned from this landmark case.<br /> <br /> Paeter will be presenting &ldquo;The Nuts and Bolts of SGMA&rdquo; on the new Sustainable Groundwater Management Act on Wednesday, May 6 at 10 a.m.</p> <p><strong>When<br /> </strong>Tuesday, May 5 &ndash; Friday, May 8, 2015</p> <p><strong>Where<br /> </strong>Sacramento Convention Center</p> <p>For more information or to register, <a target="_blank" href="http://www.acwa.com/events/acwa-2015-spring-conference-exhibition"><span style="color: #0000ff">click here</span></a>.</p>Conferences & Speaking Engagements05 May 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38509&format=xmlLaw of the Colorado River: Meeting Demand During Unprecedented Droughthttp://www.bbklaw.com/?t=40&an=37999&format=xml<p>Best Best &amp; Krieger LLP Of Counsel Roderick Walston will discuss <i>Agua Caliente vs. Coachella Valley Water District and Desert Water Agency</i> during the &ldquo;Addressing Tribal Concerns&rdquo; panel of the two-day conference &ldquo;Law of the Colorado River: Meeting Demand During Unprecedented Drought.&rdquo;</p> <p><strong>When</strong><br /> Friday, May 1, 2015<br /> 8:45 a.m.</p> <p><strong>Where</strong><br /> Planet Hollywood Las Vegas</p> <p>For more information or to register, visit the <a target="_blank" href="http://www.cle.com/product.php?proid=1518&amp;src=Featured&amp;page=Law_of_the_Colorado_River"><span style="color: #0000ff">event page at CLE</span></a>.</p>Conferences & Speaking Engagements01 May 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=37999&format=xmlTough Mandatory Water Restrictions of up to 36 Percent Retained in Draft Emergency Drought Regulation for Californiahttp://www.bbklaw.com/?t=40&an=39373&format=xml<p>The State Water Resources Control Board released revisions to its <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/draft25percent_conservation_regs20150428.pdf"><span style="color: #0000ff">draft emergency regulation</span></a><span style="color: #0000ff"><u>s</u></span> to restrict overall potable urban water usage across the state by 25 percent. The revisions, released late Tuesday, include language clarifications and changes to certain provisions. By and large, however, the new proposed regulations retain the form and substance of the strict and far-reaching mandatory conservation requirements that the Board has advocated for for the past three weeks.</p> <p>In comment letters on the draft regulations, numerous cities and water agencies urged the Board to consider alternative provisions that consider the diverse geographic, climatic, population, environmental and water conservation factors across the state. Agencies &nbsp;expressed particular concern about the <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/supplier_tiers_20150428.pdf"><span style="color: #0000ff">nine tiers of conservation standards</span></a> contained in the regulations, which require urban water suppliers to achieve potable (drinkable) water savings ranging from 8 to 36 percent based on existing residential per capita water usage. The revised regulations retain the nine tiers, which rise by increments of four percentage points.</p> <p>In a <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/emergency_reg_fact_sheet_20150428.pdf"><span style="color: #0000ff">Fact Sheet</span></a>, the Board indicated that it may be willing to modify the tier structure before adopting the regulations to double the number of tiers and use 2 percent increments for setting the required conservation standards. The Board is encouraging feedback on this point.</p> <p>Tuesday&rsquo;s release marked the Board&rsquo;s Notice of Proposed Emergency Rulemaking and commencement of a formal comment period on the forthcoming regulations. The comment period will be brief, with written comments due by 10 a.m. May 4. Cities, public agencies and other interested parties should submit written comments by the deadline to <a href="mailto:commentletters@waterboards.ca.gov"><span style="color: #0000ff">commentletters@waterboards.ca.gov</span></a>.&nbsp;All comments should indicate on the subject line: &ldquo;Comment Letter &ndash; Emergency Conservation Regulations.&rdquo; The Board scheduled adoption of the proposed emergency regulations for its May 5-6 meeting. The public hearing is scheduled to begin May 5. Specific prohibitions would become effective approximately May 15, with reporting activities and compliance due to start in June. The emergency provisions would remain in effect through February 2016.</p> <p>The draft regulations implement an <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/040115_executive_order.pdf"><span style="color: #0000ff">Executive Order</span></a>&nbsp;&nbsp;issued by Gov. Jerry Brown on April 1 to address the serious drought in California. The Board issued a Draft Regulatory <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/draft_regulatory_framework.pdf"><font color="#0000ff">Framework</font></a> for the proposed water restrictions on April 7, and the first version of the draft regulations on April 18. On Tuesday, Brown announced he will propose new legislation to provide expanded enforcement powers to local agencies, including the ability to &ldquo;deputize&rdquo; staff to cite water wasters and to impose fines of up to $10,000 per day for those who fail to comply with locally imposed water restrictions. Brown also said he would propose legislation to accelerate environmental permitting for local water supply projects.</p> <p><b>Urban Water Suppliers</b></p> <p>To a large extent, the draft regulations are aimed at urban water suppliers, defined as those serving more than 3,000 customers or delivering more than 3,000 acre feet of water per year (but not suppliers functioning solely in a wholesale capacity). The proposed regulations&rsquo; tiering structure is designed to place the greatest conservation demands on those agencies with the highest residential gallons per capita/per day water usage. In Tier 2, for example, 23 suppliers would be required to achieve an 8 percent potable water savings, while in the highest Tier 9, 85 agencies would be required to reduce potable urban water production by 36 percent. Collectively, the percentage-based conservation standards are designed to achieve the overall 25 percent reduction in urban potable water use across the state that Brown&rsquo;s Executive Order requires.</p> <p>The state&rsquo;s 411 urban water suppliers are assigned to the tiers based on three months of summer residential gallons per capita/per day water usage data (July through September of 2014). According to the Board, this three-month period reflects the large amount of water used for summer outdoor irrigation, which provides one of the greatest opportunities for conservation savings.</p> <p>The draft regulations contain no specific reduction standards for commercial, industrial and institutional customers of urban water suppliers. Instead, suppliers would have discretion to decide how to achieve their conservation standards by applying restrictions, as they see fit, to residential and nonresidential users.</p> <p>For compliance purposes, the draft regulations provide that 2013 would form the base year for comparison. Each urban supplier&rsquo;s water savings between June 2015 and February 2016 would be compared to water usage in the corresponding prior months of June through December 2013 and January and February 2013 to determine whether the mandated conservation standard is achieved. The Board plans to begin assessing compliance with the emergency regulations starting July 15, when urban water suppliers will be required to submit their June monthly reports on water production. Thus, local agencies will be required to move quickly to implement conservation measures and restrictions starting as early as June 1 to be able to capture the greatest amount of water savings within the compliance period.</p> <p>Tuesday&rsquo;s revisions to the draft regulations include language clarifications to address questions . The draft regulations originally referred to &ldquo;total water usage&rdquo; in establishing the nine tiers of conservation standards. The regulations now call for reductions in the &ldquo;total potable water production&rdquo; of urban water suppliers. &ldquo;Total potable water production&rdquo; is defined as &ldquo;all potable water that enters a water supplier&rsquo;s distribution system, excluding water placed into storage and not withdrawn for use during the reporting period, or water exported outside the supplier&rsquo;s service area.&rdquo;</p> <p><b>End User Requirements</b></p> <p>The new draft regulations retain a new prohibition applicable to all Californians, which would ban irrigation with potable water of ornamental turf on public street medians. A second new prohibition for all new development in California was modified to remove direct reference to &ldquo;drip or microspray systems.&rdquo; This provision now prohibits &ldquo;irrigation with potable water of landscapes outside of newly constructed homes and buildings in a manner inconsistent with regulations or other requirements established by the California Building Standards Commission.&rdquo;</p> <p>Under Brown&rsquo;s Executive Order, Provision 5 called for the Board to impose restrictions requiring commercial, industrial and institutional properties &mdash; such as campuses, golf courses and cemeteries &mdash; to immediately implement water-efficiency measures to reduce potable water usage. The revised draft regulations provide that all such properties that use a water supply, any portion of which is from a source other than an urban water supplier, must either limit outdoor irrigation of ornamental landscapes or turf with potable water to no more than two days per week or achieve a 25 percent reduction in potable water use. The Board explained that the goal is to reduce water use for &ldquo;large landscapes&rdquo; that otherwise would not be addressed by the regulations.</p> <p><b>Reporting and Compliance</b></p> <p>The draft regulations retain a provision under which the Board would track compliance on a cumulative basis. As monthly reports are submitted, the Board will add agencies&rsquo; conservation savings together from one month to the next, comparing the amount of water used during the same months in 2013. In addition to residential water use, urban water suppliers will be required to report on monthly usage by the commercial, industrial and institutional sectors within their jurisdictions.</p> <p>The draft regulations include a revised provision that would allow the Board&rsquo;s executive director, or the executive director&rsquo;s designee, to issue an informational order requiring water suppliers, or commercial, industrial or institutional properties that receive any portion of their supply from a source other than an urban water supplier, to submit &ldquo;additional information relating to water production, water use or water conservation.&rdquo; Failure to provide such requested information within 30 days (or within any additional time extension that may be granted) would be a &ldquo;violation subject to civil liability of up to $500 per day for each day the violation continues pursuant to Water Code section 1846.&rdquo;</p> <p>The revised regulations also clarify potential enforcement actions for failure to comply with any end-user requirements, including provisions that were adopted prior to the current emergency rulemaking. The draft regulations state that such a violation is an infraction punishable by a fine of up to $500 for each day the violation occurs. The revised regulations add this statement, which makes clear that other potential enforcement actions may come into play: &ldquo;The fine for the infraction is in addition to, and does not supersede or limit, any other remedies, civil or criminal.&rdquo;&nbsp;&nbsp;</p> <p>If you have any questions about the draft regulations or how they may impact your municipality or agency, please contact the attorney authors of this legal alert listed to the right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law and Natural Resources</span></a> and <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice groups, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts29 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39373&format=xml2014 Legislative Highlightshttp://www.bbklaw.com/?t=40&an=39376&format=xml<p><b>INTRODUCTION</b></p> <p>The 2014 Legislative session was notable for the continued inability of the Legislature to resolve a series of high profile real property related issues that were carried over from previous sessions. This inability persisted despite the existence of Democratic Party supermajorities in both houses and indicates either the intractable character of these issues or the existence of divisions on these issues within the Democratic Party. Most likely both factors played a role in the Legislature's ineffectiveness.</p> <p>One of the most prominent of these issues was reform of the California Environmental Quality Act (&quot;CEQA&quot;). Although there was a general recognition that CEQA reform could be important to facilitate development activity in California, the 2014 session was nevertheless relatively quiet with respect to new CEQA legislature in comparison to the last two years. A total of thirty-one bills relating to CEQA were introduced in the 2013 session, with six bills eventually signed into law. In 2014, only fifteen bills were introduced and only twelve of them were actually new bills, with only five bills eventually being signed into law. The most notable of these bills, AB 52, establishes a new and powerful role for California Native American Tribes in the CEQA process by adding several provisions to CEQA dealing with impacts on &quot;tribal cultural resources.&quot; Of course, this is not the type of CEQA reform desired by those who want to streamline the CEQA process to facilitate development.</p> <p>A second issue of continued concern was how the Legislature would address the void left by the dismantling of California's five billion dollar per year redevelopment programs that took place in 2012. Although Governor Brown vetoed a number of bills meant to address this problem, he did sign legislation that expands the existing mechanisms of infrastructure financing districts to provide tax-increment financing authority for capital improvement projects, many of which may overlap with projects once carried out by redevelopment agencies. While this is only a partial fix, it appears to be as far as the Governor is willing to go in resurrecting what was previously considered an essential development financing tool.</p> <p>The third major issue of continued concern was Proposition 13 reform. These reform efforts have been a continuing occurrence for many years now. In 2014, these efforts took a different turn, which nearly resulted in the enactment of a historic compromise agreement (AB 2372) regarding change of ownership abuses. However, in the end, this reform effort also failed in the waning hours of the 2014 Legislative session. The expectation is that this issue will resurface in 2015 as both parties prepare for the 2016 election.</p> <p><i>To read the entire article in the Spring 2015 California Real Property Journal, <a target="_blank" href="http://www.bbklaw.com/88E17A/assets/files/documents/BBK-LA-CalRealPropertyJournal-LegislativeUpdate-Maurer.pdf"><span style="color: #0000ff">click here</span></a>. First published in the California Real Property Journal, a quarterly publication of the Real Property Section of the State Bar of California. Reprinted with permission.</i></p>BB&K In The News29 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39376&format=xmlBB&K Attorney Roderick Walston Recognized with IMLA's Amicus Service Awardhttp://www.bbklaw.com/?t=40&an=39361&format=xml<p><b>WALNUT CREEK, Calif.</b>&nbsp;- We are pleased to announce that Best Best &amp; Krieger LLP attorney Roderick Walston received the International Municipal Lawyers Association&rsquo;s Amicus Service Award. His work on the <i>Los Angeles County Flood Control District v. the Natural Resources Defense Council </i>case was recognized during an awards ceremony at the IMLA Mid-Year Seminar in Washington, D.C. on April 24.</p> <p>&ldquo;IMLA&rsquo;s legal advocacy program is vital to our mission and without lawyers like Mr. Walston, we would not be able to sustain it,&rdquo; said Amanda Keller, IMLA associate general counsel and director of Legal Advocacy.</p> <p>On behalf of IMLA and others, Walston and a team of BB&amp;K attorneys submitted an amicus brief in the U.S. Supreme Court case involving whether municipalities that discharge waste through their storm sewer systems are subject to the permit requirements of the Clean Water Act.&nbsp;Walston&rsquo;s brief argued that the Clean Water Act establishes separate requirements for municipalities that discharge waste through their storm sewer systems than apply to others who discharge other forms of waste into the nation&rsquo;s waters, and therefore that the Clean Water Act permit requirements that apply to other waste dischargers do not apply to municipalities who discharge waste through their storm sewer systems.&nbsp;</p> <p>&quot;This is a well-deserved recognition for the hard work Rod and his team invested in this important effort,&quot; said Jeffry Ferre, BB&amp;K&rsquo;s Environmental Law &amp; Natural Resources practice group leader.</p> <p>Walston, who is of counsel in the firm&rsquo;s Walnut Creek office, is a member of the Litigation and Environmental Law &amp; Natural Resources practice groups. He is&nbsp;involved in a number of water rights cases that will impact not only the legalities of this complex field, but also the water interests of businesses, agriculture, tribes, environmentalists, communities and others. Prior to joining BB&amp;K, he served as deputy solicitor/acting solicitor for the U.S. Department of the Interior, as general counsel to the Metropolitan Water District of Southern California and had a long career with the California Attorney General&rsquo;s office &mdash; including as head of its Public Rights Division. He is a graduate of Stanford University School of Law.</p> <p><a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1704&amp;format=xml&amp;/Roderick%20E.%20Walston"><span style="color: #0000ff">Walston&rsquo;s full biography is available on the firm website.</span></a></p> <p align="center">###</p> <p><b><i>Best Best &amp; Krieger&rsquo;s Water Rights</i></b><i> practice is a nationally recognized force in water law since James Krieger&rsquo;s significant role in implementing the California State Water Project in the 1960s. As general counsel to water providers, BB&amp;K represents dozens of public agencies that serve water to more than 21 million people, in addition to countless developer, agricultural and manufacturing clients. We regularly advise public agency and private clients on all aspects regarding allocation of scarce water supplies.</i></p> <b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit </i><span style="color: #0000ff"><i><a target="_blank" href="http://www.bbklaw.com/"><span style="color: #0000ff">www.bbklaw.com</span></a></i></span><i><span> or follow @BBKlaw on Twitter.</span></i>Press Releases28 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39361&format=xmlIMLA's 2015 Mid-Year Seminarhttp://www.bbklaw.com/?t=40&an=37676&format=xml<p>Join BB&amp;K at IMLA&rsquo;s four-day mid-year seminar in Washington D.C.</p> <p><b>BB&amp;K Speakers</b></p> <p>Andre Monette: &ldquo;Land Use Sustainability Code and Stormwater&rdquo;<br /> Friday, April 24<br /> 2:50-3:50 p.m.</p> <p>Joseph Van Eaton and Gerard Lederer: Telecomm: An On Overview of FCC Regulations&rdquo;<br /> Sunday, April 26<br /> 9 &ndash; 10:30 a.m.</p> <p>Visit Gerard Lederer and John Freshman, BB&amp;K&rsquo;s senior director of Governmental Affairs, at the WONK Breakfast on Monday, April 27 from 7:30 to 9 a.m.<br /> <br /> <strong>When</strong>: <br /> April 24 &ndash; 27, 2015</p> <p><strong>Where</strong>:<br /> Omni Shoreham, Washington, D.C.</p> <p>For more information or to register, visit the <a target="_blank" href="http://www.imla.org/events/seminars/490-2015-mid-year-seminar#news"><span style="color: #0000ff">IMLA website</span></a>.</p>Conferences & Speaking Engagements24 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=37676&format=xmlDrought Puts State's Byzantine Water Rights System into Stark Reliefhttp://www.bbklaw.com/?t=40&an=39294&format=xml<p>&ldquo;The environment does have an important role in the existing distribution of water, including controls on water pumping the government has put in place to protect endangered species, countered Eric L. Garner, a partner with Best Best &amp; Krieger LLP who represents municipal water districts among others.</p> <p>&quot;&rsquo;I think the water rights system has been up to every challenge it's faced in the last 150 years and I think only time will tell if this turns out to be different,&rsquo; Garner said. &lsquo;So water law isn't the way we'd draw it up in 2015 - but what situation in life do we not have that?&rsquo;&quot;</p> <p><i>To read the full article in the April 22, 2015 Daily Journal, <a target="_blank" href="http://www.dailyjournal.com/subscriber/SubMain.cfm?seloption=NEWS&amp;pubdate=04/22/2015&amp;shNewsType=NEWS&amp;NewsId=-1&amp;sdivId=&amp;screenHt=670#section=DJStoryContent.cfm%3Fseloption%3DNEWS%26pubdate%3D04/22/2015%26shNewsType%3DNews%26NewsId%3D940798%26sdivId%3DmainContent1"><span style="color: #0000ff">click here</span></a> (subscription required).</i></p>BB&K In The News22 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=39294&format=xmlCalifornia Court of Appeal Holds City's Tiered Water Rate Structure Violates Proposition 218http://www.bbklaw.com/?t=40&an=38987&format=xml<p>In an opinion anxiously awaited by many water agencies throughout California, the Fourth District Court of Appeal, Division Three, ruled on Monday that a city&rsquo;s inclining, tiered block rate structure violated Proposition 218&rsquo;s proportionality requirements (California Constitution, article XIII D, section 6). Although the <a target="_blank" href="http://www.courts.ca.gov/opinions/documents/G048969.PDF"><span style="color: #0000ff">opinion in <i>Capistrano Taxpayers Association v.</i> <i>City of San Juan Capistrano</i></span></a> held that tiered rates, or inclining block rates that go up progressively in relation to usage, are compatible with Proposition 218, in this instance, the court concluded that the City failed to demonstrate that the tiers correspond to the actual cost of providing service at a given level of usage. The court rejected reliance on article X, section 2 to promote water conservation as the sole basis for establishing tiers, holding the city had to show that the various usage tiers corresponded with its actual costs of delivering water in those increments.</p> <p>The City of San Juan Capistrano adopted an allocation-based rate structure in August 2012. The rate structure consisted of four tiers with the rates in each tier determined based on predetermined water usage budgets. The first two tiers were based on the amount of water the City concluded was required for reasonable indoor and outdoor water usage. The third and fourth tiers were based on what the City concluded to be excessive or overuse of water, respectively. The City was also in the process of constructing a recycled water treatment plant and related facilities, which were funded in part through its potable water service fees. The Capistrano Taxpayers Association sued challenging the validity of the City&rsquo;s rates under Proposition 218.</p> <p>First, the Court of Appeal held that the City&rsquo;s rates were not proportional to the cost of service because the City did not calculate the incremental cost of providing water at the level of use represented by each tier. Specifically, the court criticized the City for not correlating its rates within each tier to the prices of water used within each tier. In interpreting the provisions of Proposition 218, the court noted that &ldquo;[i]f the phrase &lsquo;proportional cost of service attributable to <i>the </i>parcel&rsquo; is to mean anything, it has to be that [Proposition 218] assumes that there really <i>is</i> an ascertainable cost of service that can be attributed to a specific - hence that little word &lsquo;the&rsquo; - parcel.&rdquo; The court concluded that the administrative record justifying the City&rsquo;s rates did not contain any breakdown as to the relative cost of each source of supply and therefore did not justify an ascertainable cost attributable to specific parcels.</p> <p>Second, the court rejected the City&rsquo;s argument that the rates in tiers three and four do not have to be cost justified. The City asserted the higher tiers are penalties structured consistent with the provisions of article X, section 2 of the California Constitution. Article X generally requires conservation of the water resources of the State and is often cited by public agencies in support of tiered rates as a means of promoting conservation. The court, however, took a narrow interpretation of article X, section 2, concluding that it does not trump the cost of service provisions of Proposition 218.</p> <p>Finally, the appellate court sided with the City that Proposition 218 does allow public water agencies to pass on to their customers the capital costs of improvements to provide additional water, including building a recycling plant, because &ldquo;each kind of water is providing the <i>same</i> service,&rdquo; even if not all customers (e.g., residential) are capable of utilizing the alternate water source. The court, however, went on to question whether residential rate payers with very low water consumption (&ldquo;super&ndash;conservers&rdquo;) &ldquo;should be required to pay for recycling facilities that would not be necessary but for above-average consumption.&rdquo; The court therefore sent this portion back to the trial court for further findings on the issue of whether the cost to develop the City&rsquo;s recycling operation were appropriately allocated to those who use water at the lowest levels.</p> <p>Best Best &amp; Krieger LLP Partner Kelly Salt appeared <i>amicus curiae</i> for the Association of California Water Agencies, the League of California Cities and the California Association of Counties.</p> <p>If you have any questions about this case or how it may impact your agency, please contact the attorney author of this legal alert listed to the right in the firm&rsquo;s <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=497&amp;format=xml"><span style="color: #0000ff">Public Finance</span></a> practice group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts21 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38987&format=xmlSan Juan Capistrano Tiered Water-Use Rates Decisionhttp://www.bbklaw.com/?t=40&an=38991&format=xml<p>The Fourth District Court of Appeal&rsquo;s decision finding that San Juan Capistrano&rsquo;s tiered water-use rates structure violated Proposition 218 generated a lot of news coverage, as these structures are likely to be&nbsp;a&nbsp;tool water agencies will use to address conservation regulations. Best Best &amp; Krieger Partner Kelly Salt, who appeared amicus curiae on behalf of the defendant, discussed the ruling with news reporters. Here are some of those reports:</p> <p><a target="_blank" href="http://www.utsandiego.com/news/2015/apr/21/tp-state-court-balks-at-tiered-water-pricing/"><span style="color: #0000ff">State Court Balks at Tiered Water Pricing</span></a> (<i>San Diego Union-Tribune</i>)</p> <p>&ldquo;&rsquo;They said you have to prove costs, but they don&rsquo;t say how you&rsquo;ve got to do it,&rsquo; said Kelly Salt, an attorney with Best Best &amp; Krieger, LLP, a San Diego-based law firm that is defending the Sweetwater Authority&hellip;.</p> <p>&ldquo;&rsquo;It&rsquo;s so disheartening to me to find the whole idea of structuring rates to promote conservation being (challenged as) improper under the constitution,&rsquo; Salt said. &lsquo;Those who place greater demands on a water system should have to pay for it.&rsquo;</p> <p>&ldquo;Figuring out how to assign and justify costs could be time-consuming at an urgent juncture, she said.</p> <p>&ldquo;&rsquo;The timing couldn&rsquo;t be worse given the fact that we&rsquo;re in a major drought,&rsquo; Salt said. &lsquo;Generally, to conduct a cost of service study it takes about six months, and on top of that, you have a 45-day period for mail notice before holding a public hearing to adopt the rate. So if agencies have concerns about their rates in light of this decision and are now being asked to cut back 10 to 36 percent, it will be more difficult to meet those mandates without a pricing signal to conserve.&rsquo;&rdquo;</p> <p><a target="_blank" href="http://touch.latimes.com/#section/-1/article/p2p-83347231/"><span style="color: #0000ff">Appeals Court Throws Out San Juan Capistrano&rsquo;s Tiered Water-Use Rates</span></a> (<i>Los Angeles Times</i>)</p> <p>&ldquo;Kelly Salt, a Proposition 218 expert based in San Diego who wrote an amicus brief defending the city of San Juan Capistrano, called the decision a &lsquo;cause for concern.&rsquo;</p> <p>&quot;&rsquo;Tiered water rates provide an important price signal for conservation,&rsquo; Salt said. &lsquo;With this ruling in hand, public agencies are going to want to make certain that their rate structures conform.&rsquo;</p> <p>&ldquo;That, she said, could require agencies to spend months studying rates while trying to comply with new state conservation demands.</p> <p>&quot;&rsquo;In this case, the court said [agencies] have to calculate the incremental cost of providing water at the level of use represented by each tier,&rsquo; she added. &lsquo;That's difficult to do. Not impossible, but difficult.&rsquo;&rdquo;</p> <p><a target="_blank" href="http://www.sacbee.com/news/politics-government/capitol-alert/article19098585.html"><span style="color: #0000ff">Jerry Brown Calls Tiered-Water Ruling &ldquo;A Straitjacket&rdquo; for Conservation Efforts</span></a> (<i>The Sacramento Bee</i>)</p> <p>&ldquo;Attorney Kelly Salt, with Best Best &amp; Krieger in San Diego, said the ruling appears to be narrow enough that it could allow some agencies to maintain tiered pricing. Salt filed an amicus brief in the case for the California State Association of Counties, League of California Cities and Association of California Water Agencies.</p> <p>&ldquo;She said the court ruled that the city of San Juan Capistrano did not do enough to show that its pricing structure is based on the cost to the city to provide water, but some other water agencies may feel that they can show, if challenged, their pricing structure meets Proposition 218&rsquo;s &lsquo;nexus&rsquo; requirements.</p> <p>&ldquo;&rsquo;It&rsquo;s hard to say at this point,&rsquo; she said. &lsquo;The court didn&rsquo;t provide a great deal of guidance.&rsquo;</p> <p>&ldquo;&rsquo;Many water agencies may feel they already meet the standard stated in the court&rsquo;s opinion. Others may want to take a second look&rsquo; at their pricing structure, she said. Salt added: &lsquo;It is unfortunate that this decision came down during the worst drought in California history.&rsquo;&rdquo;</p> <p><a target="_blank" href="http://www.miamiherald.com/news/nation-world/article19103352.html"><span style="color: #0000ff">Water Pricing to Spur Conservation Ruled Unconstitutional</span></a> (<i>Associated Press</i> via <i>Miami Herald</i>)</p> <p>&ldquo;The ruling will make it difficult for agencies with tiered pricing who get water from a single source, said Kelly Salt, a lawyer who filed court papers supporting San Juan Capistrano on behalf of the Association of California Water Agencies.</p> <p>&ldquo;Salt said she hoped the decision wouldn't have an impact beyond the city because tiered pricing is important to promote water savings.&rdquo;</p>BB&K In The News21 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38991&format=xmlDraft Mandatory Regulations Restricting Water Use in California Released by State Water Resources Control Boardhttp://www.bbklaw.com/?t=40&an=38961&format=xml<p>Moving at a swift pace, the State Water Resources Control Board released a <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/draft_emergency_regs.pdf"><span style="color: #0000ff">draft emergency regulation</span></a> over the weekend that, for the first time, would require mandatory water restrictions by urban water suppliers throughout California. The proposed regulation reflects changes and refinements to the Water Board&rsquo;s conceptual regulatory <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/draft_regulatory_framework.pdf"><span style="color: #0000ff">framework</span></a>, which was released April 7 in response to an Executive Order issued by Gov. Jerry Brown on April 1 to address the serious drought in California. The state actions have drawn national attention, as well as widespread concern and criticism because of the magnitude of the proposed water cuts in many areas.</p> <p>The draft regulation was released Saturday morning. Agencies have just three business days to provide input, with comments due Wednesday. The Water Board plans to adopt a final regulation May 5 or 6. Specific prohibitions would become effective May 15, with reporting activities and compliance due to start in June. The emergency provisions would remain in effect through Feb. 28, 2016.</p> <p><b>Nine Tiers of Required Conservation Levels for Urban Water Suppliers</b></p> <p>Notably, the draft regulation expands the number of tiers of required conservation levels from four to nine, in response to comments about the arbitrary and unfair nature of the groupings proposed in the conceptual framework. The <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/draft_usage_tiers.pdf"><span style="color: #0000ff">tiering structure</span></a> is designed to place the greatest conservation demands on those agencies with the highest residential water usage. In Tier 2, for example, 23 suppliers would be required to achieve an 8 percent potable water savings, while in the highest Tier 9 &mdash; 94 agencies would be required to reduce potable urban water usage by 36 percent. Collectively, the percentage-based conservation standards are designed to achieve an overall 25 percent reduction in urban potable water use across the state, as Brown&rsquo;s Executive Order requires.</p> <p>The tiering structure and affiliated conservation standards apply to urban water suppliers, defined as those serving more than 3,000 customers or delivering more than 3,000 acre feet of water per year. The state&rsquo;s 411 urban water suppliers are placed in the tiers based on three months of summer residential gallons-per-capita-per-day water usage data (July through September of 2014). According to the Water Board, this three-month period reflects the amount of water used for summer outdoor irrigation, which provides the greatest opportunity for conservation savings. Originally, the state had proposed a one-month &ldquo;snapshot&rdquo; of water usage in September 2014 for assignment into the tiers. The Water Board expanded the time frame because of concerns that the one-month window was too narrow and subject to possible anomalies that made it an unfair measure. Under the revised tiering structure, some agencies found their requirements for water savings reduced somewhat, while for others, the conservation standards increased.</p> <p>In response to comments, the draft regulation provides two scenarios where water suppliers could seek to modify their total water use or be assigned to a lower conservation tier. In one instance, urban water suppliers delivering more than 20 percent of their total water production to commercial agriculture may be allowed to modify the amount of water subject to their conservation standard. In the other, urban water suppliers with a reserve of surface water that could last multiple years may be eligible to be placed into a lower conservation tier if they meet certain criteria.</p> <p>The draft regulation contains no specific reduction standards for commercial, industrial and institutional customers of urban or other water suppliers. Instead, water suppliers would have discretion to decide how to achieve their conservation standards by applying restrictions, as they see fit, to residential and nonresidential users.</p> <p><b>Two Water Savings Options for Smaller Water Suppliers </b></p> <p>Under the draft regulation, smaller water suppliers (serving less than 3,000 connections) would be subject to one of two requirements: Either meeting a 25 percent conservation standard or restricting outdoor irrigation to no more than two days per week. This is a departure from the conceptual framework, which did not provide the option of restricting outdoor irrigation and simply called for an across-the-board 25 percent water savings by all small water suppliers.</p> <p>Under the draft regulation, small water suppliers would be required to submit a single report on Dec. 15 detailing water production from June through November this year and between June through November 2013 for comparative purposes, or submit confirmation that outdoor irrigation of ornamental landscapes or turf with potable water is limited to no more than two days a week.</p> <p><b>End User Requirements</b></p> <p>The proposed regulation contains new prohibitions called for in the Executive Order that would apply to all Californians: 1) Irrigation with potable water of ornamental turf on public street medians would be prohibited and 2) irrigation with potable water outside of newly constructed homes and buildings not delivered by drip or microspray. The regulation does not define &ldquo;medians.&rdquo; Water Board staff explained last week that it will be left to the discretion and good judgment of communities to meet the median requirement.</p> <p>Under the Executive Order, Provision 5 called for the Water Board to impose restrictions to require that commercial, industrial and institutional properties, such as campuses, golf courses and cemeteries, to immediately implement water efficiency measures to reduce potable water usage. Under the draft emergency regulation, such properties that are not served by a water supplier must either limit outdoor irrigation to two days per week or achieve a 25 percent reduction in water use. The Water Board explained that the goal is to reduce water use for &ldquo;large landscapes&rdquo; that otherwise would not be addressed by the regulation.</p> <p>The Water Board noted in a <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/fact_sheet_implementing_25.pdf"><span style="color: #0000ff">Fact Sheet</span></a> that care must be taken to ensure that existing trees remain healthy and do not create a public safety hazard due to water restrictions. The Water Board will be developing guidance on balancing the needs of trees in light of the forthcoming prohibitions on end users.</p> <p><b>Reporting and Compliance: Cumulative Tracking of Water Use, Informational Orders, and Proposed Conservation Orders</b><br /> <br /> For compliance purposes, the draft regulation provides that each urban supplier&rsquo;s water savings between June 2015 and February 2016 be compared to water usage in the corresponding prior timespan of June 2013 through February 2014. The Water Board will begin assessing compliance with the emergency regulation starting July 15, when urban water suppliers will be required to submit their June monthly reports on water usage.</p> <p>Numerous commenters on the regulatory framework expressed concern about the Board&rsquo;s plan to monitor monthly usage results as a means of alerting the state to areas that are falling behind in required reductions. Agencies pointed out that wide swings beyond the control of a water supplier can occur from month to month. The draft regulation therefore includes a provision under which the Water Board would track compliance on a cumulative basis. As monthly reports come in, the Water Board will add agencies&rsquo; conservation savings together from one month to the next, comparing the amount of water used during the same months in 2013. The <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/fact_sheet_implementing_25.pdf"><span style="color: #0000ff">Fact Sheet</span></a> released Saturday provides graphic illustrations of how the cumulative tracking will work.</p> <p>In addition to residential water use, urban water suppliers will be required to report on monthly usage by commercial, industrial and institutional sectors.</p> <p>The draft regulation would allow the Water Board to impose informational orders and potential corrective actions on water suppliers not meeting their conservation standards. In particular, a new &ldquo;informational order&rdquo; is proposed in the emergency regulation that would require a response from water suppliers within 30 days or they would face enforcement. Violation of such an order would carry a penalty of up to $500 per day for each day the violation continues. In addition, the Water Board could use a &ldquo;conservation order&rdquo; to direct specific actions to correct non-compliance. According to the Water Board&rsquo;s Fact Sheet, this type of order also would carry a penalty of up to $500 a day.</p> <p>Additionally, the Water Board would work with water suppliers that are failing to meet their conservation standards to implement actions to achieve the required water savings. These actions could include making changes to rates and pricing, imposing irrigation restrictions, conducting public outreach, offering rebates and audit programs, implementing leak detection and repair, and other measures. These tools could be used at any point during the 270 days the emergency regulation is in effect.</p> <p><b>Comments and Feedback</b></p> <p>The Water Board seeks feedback on the emergency regulation. Cities, public agencies and other interested parties should submit comments on the updated approach to the regulation and on the specific regulatory language to Jessica Bean at <a href="mailto:Jessica.Bean@waterboards.ca.gov"><span style="color: #0000ff">Jessica.Bean@waterboards.ca.gov</span></a> by Wednesday. The draft regulation will be further refined based on comments received. The Notice of Proposed Emergency Rulemaking and accompanying revised regulatory language will be released April 28 for public comment and consideration by the Water Board at its May 5-6, 2015 regular business meeting. More information and comments thus far can be found <a target="_blank" href="http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/emergency_mandatory_regulations.shtml"><font color="#0000ff">here</font></a> on the Water Board&rsquo;s website.</p> <p>If you have any questions about the draft regulation or how it may impact your agency, please contact the attorney authors of this legal alert listed to the right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><font color="#0000ff">Environmental Law and Natural Resources</font></a> and <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=487&amp;format=xml"><font color="#0000ff">Special Districts</font></a> practice groups , or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts20 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38961&format=xmlPerformance Measures - Accountability and Transparency Certifications Through CSDA and Othershttp://www.bbklaw.com/?t=40&an=38432&format=xml<p>BB&amp;K Partner Kara Ueda will present &ldquo;Performance Measures &ndash; Accountability and Transparency Certifications Through CSDA and Others&rdquo; at the 2015 CALAFCO Annual Staff Workshop.</p> <p><strong>When</strong><br /> Thursday, April 16, 2015<br /> 1:45 &ndash; 3 p.m.</p> <p><strong>Where</strong><br /> Holiday Inn Express<br /> Grass Valley, CA</p> <p>For more information or to register, <a target="_blank" href="http://www.calafco.org/index.php/education/conferences-workshops"><span style="color: #0000ff">click here.</span></a></p>Conferences & Speaking Engagements16 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38432&format=xmlCalifornia Tribe Seeks to Drop Claims Against Utility in Tax Fighthttp://www.bbklaw.com/?t=40&an=38958&format=xml<p>The Agua Caliente Tribe of Cahuilla Indians asked a California federal judge Wednesday to allow it to drop some of its claims against a water utility that intervened in the tribe's suit alleging Riverside County lacks authority to tax lessors on its tribal trust land.</p> <p>Specifically, the tribe is looking to nix its claims against intervenor-defendant the Desert Water Agency regarding the ad valorem tax, groundwater replenishment fee and water service charge, which are all imposed by the DWA. The tribe's claims relating to the county's 1 percent possessory interest tax, part of which is sent to the DWA, would remain, according to Wednesday's motion.</p> <p>The DWA, which says a victory by the tribe in its lawsuit would jeopardize the utility's ability to collect this revenue, plans to oppose the move.</p> <p>&hellip;</p> <p>DWA attorney Roderick E. Walston of Best Best &amp; Krieger LLP said Thursday that the DWA is currently preparing its response to the tribe&rsquo;s motion, which he characterized as a rehash of arguments already made in the tribe&rsquo;s opposition to their motion to intervene.</p> <p>&ldquo;We think that the motion will prejudice us because we&rsquo;ve spent a lot of time in litigation already once we were allowed to intervene,&rdquo; he said, noting that the DWA has already filed four briefs and conducted discovery in the case.</p> <p><i>To read the full article in Law360, which ran April 9, 2015, <a target="_blank" href="https://www.law360.com/articles/641038/calif-tribe-seeks-to-drop-claims-against-utility-in-tax-fight"><span style="color: #0000ff">click here</span></a>. (Subscription Required)</i></p>BB&K In The News09 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38958&format=xmlProposed Framework for Mandatory Water Use Reductions in California Releasedhttp://www.bbklaw.com/?t=40&an=38751&format=xml<p>The State Water Resources Control Board late Tuesday issued the draft framework for forthcoming emergency regulations designed to help the state conserve water in the face of severe drought. Under an executive order issued by Gov. Jerry Brown last week, the Water Board was directed to develop, impose and enforce mandatory water reduction measures aimed at achieving a statewide 25 percent reduction in potable urban water use. The Water Board is moving quickly. Draft emergency regulations will be released April 17. Adoption is scheduled for May 5 or May 6.</p> <p>The Water Board&rsquo;s draft regulatory framework provides the concepts that will be used to develop the new emergency regulations. The framework can be found under the &ldquo;Documents&rdquo; tab <a target="_blank" href="http://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/emergency_mandatory_regulations.shtml"><span style="color: #0000ff">here</span></a>.</p> <p><b>Larger Urban Water Providers: Four Tiers of Required Conservation</b></p> <p>The framework places 411 urban water providers into four tiers of required conservation levels. The tier classifications range from 10 percent to 35 percent. Assignments to these &ldquo;conservation standards&rdquo; are based on each of the water suppliers&rsquo; per capita usage in September 2014. Areas with high per capita use must achieve proportionally greater reductions than those with low use. At the low end, 18 water suppliers must achieve 10 percent potable water savings, while 126 must achieve 20 percent, 132 must achieve 25 percent, and 135 must achieve 35 percent. The Water Board has posted a complete listing of these &ldquo;urban water suppliers,&rdquo; which serve more than 3,000 customers or deliver more than 3,000 acre-feet of water annually,&nbsp;which can be found&nbsp;with the draft framework under the &ldquo;Documents&rdquo; tab <a target="_blank" href="http://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/emergency_mandatory_regulations.shtml"><span style="color: #0000ff">here</span></a>.</p> <p>Under the proposal, compliance by the 411 urban water suppliers would be assessed for the period of June 2015 through February 2016. Enforcement tools may include warning letters, orders for information, cease and desist orders, and fines of up to $10,000 for each day out of compliance. In addition, the draft framework includes new reporting requirements to assess compliance by commercial, industrial and institutional sector customers and actions taken by urban water suppliers to reduce water usage in these sectors.</p> <p><b>Small Water Providers: Mandatory 25 Percent Water Savings</b></p> <p>The framework also addresses the 2,600 &ldquo;small water suppliers&rdquo; in the state that serve fewer than 3,000 customers or deliver less than 3,000 acre-feet of water annually. The framework proposes that they be uniformly required to achieve a 25 percent potable water savings compared to their 2013 usage. For the first time, these smaller suppliers would have to report their water use&nbsp;and conservation measures to the Water Board in the form of a one-time report due 180 days after the effective date of the new emergency regulations. The same enforcement tools as those used for larger urban suppliers could come into play.</p> <p>Per <a target="_blank" href="http://www.bbklaw.com/?t=40&amp;an=38634&amp;format=xml"><span style="color: #0000ff">last week&rsquo;s Executive Order</span></a>, the following measures also will be put into place through the forthcoming emergency regulation process:</p> <ul> <li>The use of potable water outside newly constructed homes and buildings that is not delivered by drip or micro-spray systems will be prohibited.</li> <li>The use of potable water to irrigate ornamental turf on public street medians will be prohibited.</li> </ul> <p>The Water Board also will consider adding requirements for large landscape users such as colleges, golf courses and cemeteries that are not served by the type of water suppliers discussed above to achieve the 25 percent statewide reduction in potable urban water use.</p> <p>The Water Board seeks feedback on the draft regulatory framework, as well as other ideas for structuring a 25 percent reduction in potable water use. Comments and ideas should be submitted to Jessica Bean at <a href="mailto:Jessica.Bean@waterboards.ca.gov"><font color="#0000ff">Jessica.Bean@waterboards.ca.gov</font></a> by April 13. More information about public input can be found in this <a target="_blank" href="http://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/docs/emergency_regulations/regulations_fact_sheet.pdf"><span style="color: #0000ff">fact sheet</span></a>.</p> <p>It is important that water agencies act quickly and be in-the-know about all the new drought-related measures. BB&amp;K attorneys stand ready to assist in navigating these fast-moving and complex regulations, and have already helped numerous clients take immediate steps to ensure compliance. <b>Kelly Salt</b> has assisted agencies in revising their water conservation and water shortage contingency plans to comply with the Executive Order and Water Board drought regulations. She has also helped public agencies develop new water rate structures, drought surcharges and penalties to encourage water conservation, as well as draft water efficient landscape ordinances.</p> <p><span style="background-color: #ffffff">In the face of prolonged drought conditions and increasingly constrained supplies, BB&amp;K attorneys&nbsp;<span style="color: #0000ff"><b><a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1598&amp;format=xml&amp;/Eric L. Garner"><span style="color: #0000ff">Eric Garner</span></a></b></span><span style="color: #0000ff">,</span> <span style="color: #0000ff"><b><a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1544&amp;format=xml&amp;/Steven M. Anderson"><span style="color: #0000ff">Steven Anderson</span></a></b></span><b>,&nbsp;</b><span style="color: #0000ff"><b><a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1597&amp;format=xml&amp;/Paeter E. Garcia"><span style="color: #0000ff">Paeter Garcia</span></a></b></span><b> </b>and others&nbsp;are advising public agency and private clients throughout California on water rights issues involving surface supplies, groundwater and adjudicated basins. <span style="color: #0000ff"><b><a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1644&amp;format=xml&amp;/Andre Monette"><span style="color: #0000ff">Andre Monette</span></a></b></span> is working with clients on initiatives to recycle waste water&nbsp;for direct use and&nbsp;groundwater recharge&nbsp;as part of their conservation measures.</span></p> <p>If you have any questions about the current emergency regulatory process or how it may impact your agency, please contact the attorney authors of this legal alert listed to the right in the firm&rsquo;s <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a>&nbsp;and <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice groups, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts08 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38751&format=xmlOne Way to Ration Water: Raise the Pricehttp://www.bbklaw.com/?t=40&an=38760&format=xml<p>On the same day that the State Water Resources Control Board released their draft water conservation emergency regulations, Best Best &amp; Krieger LLP Partner Kelly Salt discussed water rates and fees on National Public Radio&rsquo;s Marketplace. <a target="_blank" href="http://www.marketplace.org/topics/sustainability/water-high-price-cheap/one-way-ration-water-raise-price"><span style="color: #0000ff">Listen to a podcast of the show by clicking here.</span></a></p>BB&K In The News08 Apr 2015 00:00:00 -0800http://www.bbklaw.com/?t=40&an=38760&format=xml