Best Best & Krieger News Feed Best and Krieger is a Full Service Law Firmen-us23 Sep 2014 00:00:00 -0800firmwise in Drought: Development, Legislation and Litigation<p>BB&amp;K Managing Partner <b>Eric Garner</b>, who is the program chair of the event, and Partners <b>Paeter Garcia</b> and <b>Kelly Salt</b> will be participating in some of the panel discussions during this day-long seminar. This year is being touted as California&rsquo;s single driest year on record and severe drought conditions have brought the state to a crossroads. Is drought now going to be the new normal in California? This program will help attendees understand the impacts of drought on the competing needs of urban, agricultural and environmental water users. A diverse group of water leaders from state and local government, water associations, the legislature and engineers and attorneys will provide their insight on the legal and policy issues facing the state&rsquo;s surface water, groundwater and alternative water supplies. Come and discover how California&rsquo;s drought is creating challenges and prompting new solutions for water resource management.</p> <p><b>BB&amp;K Speakers:</b><br /> <br /> Eric Garner will deliver the event&rsquo;s opening introduction and overview at 9 a.m. At 11:30 a.m., he will moderate the discussion &ldquo;The Groundwater Conundrum,&rdquo; which will explore the following topics:</p> <ul> <li>Groundwater Use in an Arid State (Availability, Rights, Uses, Reserves and Overdraft)</li> <li>Whiskey is for Drinking (Adjudications Past, Present and Future)</li> <li>Common Ground (Groundwater Management Plans; Special Legislation; State Oversight)</li> </ul> <p>Paeter Garcia will appear as a panelist at 3 p.m. for a discussion titled, &ldquo;The Perfect Non-Storm: Permitting Development in Drought Conditions.&rdquo; Topics to be discussed include:</p> <ul> <li>California Growth and Related Development</li> <li>Tall Task for Water Supply Planning (Urban Water Management Plans; General Plans)</li> <li>Preparing Defensible Water Supply Analyses (Water Supply Assessments; Written Verifications; CEQA Analysis)</li> </ul> <p>Kelly Salt is participating on a panel at 4 p.m. called, &ldquo;Pricing the Way through a Water Shortage.&rdquo; Issues to be covered include:</p> <ul> <li>Declaring Water Shortage and Emergency Conditions (Ordinances, Conservation, Rationing)</li> <li>Pricing Structures and Challenges</li> <li>Public Issue with Private Implications</li> </ul> <p><b>Credits: </b><br /> <br /> CA CLE: 6.25 General CLE credits<br /> CDPH: 6.0 contact hours</p> <p><b>Topics Covered: </b></p> <ul> <li>Drought Response</li> <li>Environmental</li> <li>Groundwater Use and Management</li> <li>Stormwater and Greywater</li> <li>Water Purchases and Transfers</li> <li>Water Shortage and Emergency Conditions</li> </ul> <p><b>Who Should Attend:</b></p> <ul> <li>Attorneys/Legal Staff</li> <li>State and Municipal Officials</li> <li>Water Operators</li> <li>Developers/Land Owners</li> <li>Farmers/Ranchers</li> <li>Environmentalists</li> <li>Utility Managers</li> <li>Planners</li> </ul> <p><b>Where: </b><br /> <br /> DoubleTree by Hilton LA Downtown<br /> 120 S. Los Angeles St.<br /> Los Angeles, CA 90012</p> <p>For more information or to register, please click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements30 Oct 2014 00:00:00 -0800 and the Law<p>Program Co-Chair and BB&amp;K Managing Partner <b>Eric Garner</b> and Partner <b>Shawn Hagerty</b> are among the presenters at this one-day seminar titled &ldquo;Hydrology and the Law: Effective Tools for Resolving Water Rights and Damages Issues&rdquo; in Santa Monica, Calif. and webcast live. California is in the midst of a historic drought. Surface water deliveries are at an all-time low and many groundwater basins are being significantly drawn down. As the State, other public agencies and private interests struggle with how to maintain supplies in the short and long term, as well as protect the environment and comply with environmental regulations, understanding how hydrology and the law interrelate has never been more important.</p> <p>This one-day seminar will explain the basics of hydrology and how it interacts with the law in California for the benefit of practitioners in both fields. In particular, leading experts in both fields will examine the relationship between hydrology and the law as it relates to water quality and pending groundwater legislation, as well as how hydrology comes into play during litigation. This seminar will help practitioners in both fields improve their overall understanding of these very interrelated fields just as water issues are front page news.</p> <p style="text-align: left"><strong><em>Half-price registration is available to BB&amp;K guests. Please call (206) 567-4490 or email </em></strong><strong><a href=""><em><font color="#0000ff"></font></em></a><em> and mention BB&amp;K to obtain this special discount.</em></strong></p> <p><b>BB&amp;K Speakers</b></p> <p>Eric Garner<br /> 8:30 a.m., &ldquo;Introduction and Overview: Surface and Groundwater Law and Relevant Legal Concepts&rdquo;<br /> 2:30 p.m., &ldquo;The Practical Application of Science to New Groundwater Regulation&rdquo;</p> <p>Shawn Hagerty<br /> 1:30 p.m., &ldquo;The Practical Application of Science to Current Water Quality Issues: Challenges of Certainty in an Uncertain World&rdquo;</p> <p><b>What You Will Learn</b></p> <ul> <li>Hydrology of surface water, groundwater and sub-surface flows</li> <li>Water supply forecasting</li> <li>Application of science to water quality issues</li> <li>New groundwater regulations</li> <li>The use of science in resolving water quality disputes and damages</li> </ul> <p><b>Who Should Attend</b></p> <ul> <li>Attorneys</li> <li>Consultants</li> <li>Real estate developers</li> <li>Agricultural water users</li> <li>Agency and Tribal representatives</li> <li>Anyone else involved in water issues in California</li> </ul> <p><b>Date:</b><br /> Oct. 7, 2014<br /> 8 a.m. &ndash; 5 p.m.</p> <p><b>Location:</b><br /> DoubleTree Guest Suites Santa Monica Hotel or Live via Webcast</p> <p><b>Continuing Education Credits</b><br /> Live credits: Law Seminars International is a State Bar of California approved MCLE provider. This program qualifies for 6.75 California MCLE credits. Upon request, we will apply for, or help you apply for, CLE credits in other states and other types of credits.</p> <p>For more information, <a target="_blank" href=""><font color="#0000ff">visit the Law Seminars International event page by clicking here</font></a>.</p>Conferences & Speaking Engagements07 Oct 2014 00:00:00 -0800 Action Planning by Local Government<p>BB&amp;K attorneys <b>Fernando Avila</b> and <b>Charity Schiller</b> will present &ldquo;Urban Density, Transit, Water/Energy Conservation and Distributed Energy: Climate Action Planning by Local Government&rdquo; at CLE International&rsquo;s &ldquo;California Greenhouse Gas Regulations&rdquo; two-day program.</p> <p><b>When:</b><br /> Oct. 6, 2014<br /> 3:30 p.m.</p> <p><b>Location:</b><br /> Hotel Nikko, San Francisco<br /> For more information or to register, visit CLE International by <a target="_blank" href=";src=Featured&amp;page=California_Greenhouse_Gas_Regulations"><font color="#0000ff">clicking here</font></a>.</p>Conferences & Speaking Engagements07 Oct 2014 00:00:00 -0800 Summary of California Water Rights Systems and a Primer for Public Water Agency Directors<p>BB&amp;K attorneys Eric Garner and Jeff Ferre will be presenting at the Water Education Foundation&rsquo;s 2014 Water 101 Workshop. This course offers the opportunity to learn the California water basics and water district board member governance. It is open to anyone interested in learning more about the history of, and the management structure of, water in California, and about the key water issues facing the State &ndash; including the drought, groundwater management and the potential for a 2014 water bond.</p> <p>BB&amp;K Managing Partner Eric Garner will present &ldquo;Summary of California Water Rights Systems&rdquo; on Thursday, Oct. 2 at 10:30 a.m. Eric will discuss:</p> <ul> <li>Riparian Rights</li> <li>Appropriative Rights</li> <li>Groundwater Law and Cases</li> <li>Reasonable and Beneficial Use</li> <li>Public Trust Law and Cases</li> </ul> <p>BB&amp;K Partner Jeff Ferre will present &ldquo;Governance Primer for Water District Directors&rdquo; on Friday, Oct. 3 at 9 a.m. He will speak about:</p> <ul> <li>The Role and Responsibilities of a Water District Director</li> <li>Building an Effective Board</li> <li>The Brown Act &ndash; Basic Requirements</li> <li>The Fair Political Practices Act &ndash; Basic Requirements</li> <li>Conflict of Interest Code</li> <li>Requirements for Ethics Training</li> <li>Avoiding Common Legal and Political Pitfalls for Directors</li> </ul> <p><strong>Audience:<br /> </strong>The course will be especially beneficial to water resource industry staff, engineering and environmental firm personnel, legislators, legislative staff, press, advocates, stakeholders, environmentalists, public interest organizations and water district directors.</p> <p><strong>When:</strong><br /> Thursday, Oct. 2 &ndash; Friday, Oct. 3, 2014</p> <p>Where:<br /> The Cucamonga Valley Water District&rsquo;s Frontier Project in Rancho Cucamonga</p> <p>For more information or to register, please click <a target="_blank" href=""><span style="color: #0000ff"><span style="background-color: #ffffff">here</span></span></a>.</p>Conferences & Speaking Engagements02 Oct 2014 00:00:00 -0800 Law Requires Cities and Counties to Expedite Their Permitting Processes for Small Residential Rooftop Solar Systems<p>A new law imposes requirements on cities and counties regarding permitting for small residential rooftop solar energy systems. Under <a target="_blank" href=""><span style="color: #0000ff">AB 2188</span></a>, signed Sunday by Gov. Jerry Brown, cities and counties must adopt ordinances, or amend their current ordinances, to create expedited, streamlined permitting processes for small rooftop solar energy systems by Sept. 30, 2015.</p> <p>To comply with the new law, cities and counties must adopt permitting procedures that conform to the expedited permitting recommendations in the current version of the &ldquo;California Solar Permitting Guidebook.&rdquo; In addition, cities and counties must adopt a requirements checklist that small rooftop solar energy systems must comply with to be eligible for expedited review. Cities and counties must publish their checklists and other required permitting documentation on their websites.</p> <p>According to the new law, an application that meets the checklist&rsquo;s information requirements is deemed complete; and if an application is incomplete, the city or county must issue a written correction notice. AB 2188 also requires that cities and counties accept electronic submissions of applications and electronic signatures. After an application is complete, and if it is consistent with the city&rsquo;s or county&rsquo;s solar permitting ordinance, the city or county may approve the application. However, cities and counties cannot condition their approval on the approval of an association that manages a common interest development. Only one inspection, which is done in a timely manner, is required for a small rooftop solar energy system that is eligible for expedited review.</p> <p>The requirements outlined in AB 2188 apply only to residential rooftop solar energy systems that are no larger than 10 kilowatts or 30 kilowatts thermal. The systems must be installed on a single or duplex family dwelling, comply with local codes and the California Electrical Code, and not exceed the maximum legal building height. In addition, solar energy systems for heating water in single family residences and solar collectors that heat water in commercial or swimming pool applications must be certified by an accredited listing agency.</p> <p>For more details or questions about this new law, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=479&amp;format=xml"><span style="color: #0000ff">Renewable Energy group</span></a>, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.<br /> <br /> <em>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;</em></p>Legal Alerts22 Sep 2014 00:00:00 -0800 response to drought, California takes historic step to regulate groundwater<p>The crisis spawned by California's now three-year drought has led state leaders to pass a law thought politically impossible even just a few years ago - a statewide scheme imposing controls on groundwater pumping.</p> <p>Gov. Jerry Brown, who tried and failed to address the problem of rampant groundwater extraction during the last drought in the 1970s, signed the historic legislation into law last week.</p> <p>Groundwater use has been largely unregulated in the state and the new law comes as increased pumping is causing wells to go dry and land to subside around the state, particularly in the Central Valley.</p> <p>The bill was supported by a wide array of interests, from environmentalists to urban water suppliers. Agricultural interests, including the California Farm Bureau Federation, opposed it.</p> While hailing the significance of the law, water lawyers say it raises questions, including how the new law will interact with the well-developed common law on groundwater pumping rights, how local governments skill cooperate, and how aggressively the state will oversee local efforts. <br /> <br /> &hellip; <p>Eric L. Garner, another longtime water attorney, said he didn't think he'd see comprehensive groundwater law pass in his career but that it's enormously important.</p> <p>&quot;There are simply too many people in the state and too much demand on water, and groundwater is too important to not be managed,&quot; said Garner, managing partner at Best Best &amp; Krieger L.L.P. &quot;We have to manage this resource for the long term.&quot;</p> <p>&hellip;</p> <p>This new law- offers an alternative that is 'hopefully quicker and more efficient&quot; than adjudications, which can last 10 or 15 years, Garner said.</p> <p>&quot;Optimistically, one would like to say that the planning process, which is participatory and broad-based, will reduce litigation, but realistically, when some pumpers are faced with either reducing pumping or paying substantially more for what they pump, that's when litigation breaks out,&quot; Garner said.</p> <p>Another incentive that could motivate people to take a more cooperative approach is a desire to keep the State Water Resources Control Board from stepping in and imposing a plan, Garner said.</p> <p><i>Click <a target="_blank" href=""><span style="color: #0000ff">here</span></a>&nbsp;to read the entire article published on Sept. 22, 2014 in the Daily Journal (subscription required).</i></p>BB&K In The News22 Sep 2014 00:00:00 -0800 California Environmental Quality Act<p>BB&amp;K attorneys Michelle Ouellette and Fernando Avila are among the faculty at this day-long seminar on CEQA. As the cornerstone of the state's environmental protection laws, CEQA tends to be a focus for lawsuits challenging the land-use decisions of public agencies. Developing strategies for surviving potential litigation is an important aspect of preparing sound CEQA documents.</p> <p>Attend this seminar and get the tools you need to develop effective CEQA compliance strategies. The essentials of preparing legally defensible CEQA documents and examination of solutions to real projects will be discussed.</p> <p><strong>When:</strong><br /> Friday, Sept. 19, 2014<br /> 9 a.m. &ndash; 4:30 p.m.</p> <p><strong>Where:</strong><br /> Hampton Inn &amp; Suites Riverside/Corona East<br /> 4250 Riverwalk Parkway<br /> Riverside, CA 92505</p> <p>For more information or to register, click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements19 Sep 2014 00:00:00 -0800 Attorney Named to State Bar and League of California Cities Committees<p><b>SAN FRANCISCO, Calif.</b>&nbsp;- Christopher Diaz, of counsel in Best Best &amp; Krieger&rsquo;s Walnut Creek, Calif. office, was appointed at the California State Bar&rsquo;s annual meeting on Friday to the Bar&rsquo;s Public Law Section Executive Committee.&nbsp;Diaz also recently served on the League of California Cities&rsquo; Resolutions Committee.</p> <p>&ldquo;I&rsquo;m looking forward to being a part of the Public Law Section Executive Committee, which serves current and up-and-coming public law attorneys,&rdquo; Diaz said. &ldquo;I&rsquo;ve always been drawn to public law issues, and I&rsquo;m honored to be able to serve in this capacity.&rdquo;</p> <p>During his three-year commitment on the 16-member committee, Diaz will help promote the practice of public law for Section members and will assist the Section with conferences, mentoring, outreach, training and editing its <i>Public Law Journal</i>.</p> <p>&ldquo;Chris has brought an amazing work ethic and passion for public agency representation to our firm, and I'm eager to see him share those talents with public lawyers throughout the state,&quot; said BB&amp;K Partner Scott Smith, who has one more year in his term on the Section committee.</p> <p>Diaz represents public agencies in a wide range of government law issues, with an emphasis on the California Environmental Quality Act, land use, conflicts of interest and ethics laws, and the Brown Act. He is a member of the firm&rsquo;s Municipal Law, Environmental Law &amp; Natural Resources and Special Districts practice groups. He currently serves as assistant city attorney for the Town of Colma and the cities of Lafayette and Clayton. He also serves as assistant general counsel for Local Agency Formation Commission of Santa Clara County.</p> <p>As a member of the League&rsquo;s Resolutions Committee, Diaz helped formulate positions for the influential group of municipal officers and representatives on upcoming policy matters. This year, the Committee addressed the issue of illegal marijuana cultivation and its impact on habitat and water supply. Diaz previously served on the League&rsquo;s Community Services Policy Committee from 2013-14.&nbsp;</p> <p>&ldquo;The League serves as an invaluable resource to local government, and it has been an honor to work closely with other local government representatives from across the state in setting policy objectives for the League,&rdquo; Diaz said.</p> <p>Diaz earned his law degree from the University of California, Los Angeles and his bachelor&rsquo;s degree from the University of California, San Diego.</p> <p style="text-align: center">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ###</p> <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><i><a target="_blank" href=""><font color="#0000ff"></font></a> or follow @BBKlaw on Twitter.</i></p>Press Releases15 Sep 2014 00:00:00 -0800 Management Services That Provide a Water Supply Source May Be Funded With Water Service<p>Assembly Bill 2403 amends the definition of &ldquo;water&rdquo; contained in the Proposition 218 Omnibus Implementation Act to &ldquo;include improvements for producing, storing, supplying, treating, or distributing water from <i>any source</i>.&rdquo; This legislation is intended to clarify that fees imposed to fund the capture (including recharge into a groundwater basin), treatment, production and distribution of stormwater as a water supply source are fees imposed for water services, and therefore are not subject to the more burdensome voter approval requirements of California Constitution article XIII D, section 6(c) (commonly referred to as Proposition 218). The legislation offers one alternative to address the evolving nature of California&rsquo;s stormwater management programs, especially the growing development of &ldquo;stormwater recapture&rdquo; programs for recharging groundwater aquifers &mdash; a valuable water supply source for public agencies throughout California.</p> <p>In November 1996, California voters approved Proposition 218, which amended the state Constitution by adding articles XIII C and XIII D. Article XIII D established a new category of fees and charges referred to as &ldquo;property-related fees and charges,&rdquo; and created new procedural requirements for their adoption. Under these requirements, water, sewer and solid waste service fees are subject to a public hearing, notice and majority protest procedure for their approval. All other property-related fees, however, must comply with these requirements and an additional voter approval process &mdash; majority approval by the affected property owners or a two-thirds registered voter approval.</p> <p>In 2002, in <i>Howard Jarvis Taxpayers Association v. City of Salinas,</i> a court of appeal considered a challenge to fees imposed by the City of Salinas to fund a stormwater drainage and flood control program developed to address water quality challenges created by the stormwater runoff. The court held that stormwater captured and discharged into a stream, river or ocean is a &ldquo;drainage&rdquo; function, not a water or sewer service function. As such, the fees were subject to the additional voter approval requirement of article XIII D, section 6(c).</p> <p>In 2013, in <i>Griffith v. Pajaro Valley Water Management Agency</i>, a court of appeal was asked to consider whether a groundwater augmentation charge imposed to fund a supplemental water supply program was a fee for water service. The supplemental water supply program included improvements to capture and treat stormwater for groundwater recharge. The court concluded that the Agency&rsquo;s groundwater augmentation charges are &ldquo;water service fees&rdquo; and therefore are within the express exemption of article XIII D, section 6(c)&rsquo;s voter approval requirements. The court recognized that &ldquo;water service&rdquo; means more than just supplying water &mdash; it includes managing a groundwater basin and ensuring an ongoing, potable supply of groundwater to the entire basin.</p> <p>In adopting AB 2403, the Legislature made specific findings that the legislation is declaratory of existing law, which would include the decisions in <i>Howard Jarvis Taxpayers Association </i>and <i>Griffith</i>. It further declared that the legislation is in furtherance of the policy contained in California Constitution article X, section 2, and the policy that the use of potable domestic water for nonpotable uses, including, but not limited to, cemeteries, golf courses, parks, highway landscaped areas and industrial and irrigation uses, is a waste or an unreasonable use of the water within the meaning of article X, section 2 if recycled water is available. AB 2403 was signed into law by Gov. Jerry Brown on June 28.</p> <p>If you have any questions about this legislation or how it may impact your agency, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=497&amp;format=xml"><span style="color: #0000ff">Public Finance</span></a> practice group, or your <a target="_blank" href=""><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 Alerts10 Sep 2014 00:00:00 -0800 Attorneys to Appear on Panels Covering Telecommunications, the Environment, Hot Federal Issues and More<p>Best Best &amp; Krieger is pleased to sponsor and participate in the International Municipal Lawyers Association&rsquo;s 2014 Annual Conference.</p> <p>TELECOMMUNICATION CHALLENGES FACING LOCAL GOVERNMENTS<br /> Sept. 10, 2014<br /> 1 &ndash; 2 p.m.</p> <p style="margin-left: 40px">&quot;How Converging Technologies and Mega-Mergers May Affect Your Community &ndash; A View From Municipal Perspectives&quot;<br /> <strong>BB&amp;K Speaker</strong>: Joseph Van Eaton, Partner<br /> Changes in technology present enormous opportunities for community development and delivering government services more efficiently &ndash; but also pose challenges. This presentation will discuss how localities can use existing laws and pending FCC proceedings to protect their interests.</p> <p style="margin-left: 40px">&quot;An Industry Perspective &ndash; What Do Changes In Technology Mean to Your Community?&quot;<br /> Speaker: Michael Ruger, Executive Director, Government Affairs, Comcast Cable Communications, LLC<br /> <br /> &quot;Wireless Siting &ndash; How Local Control is Faring at the FCC and in the Courts&quot;<br /> <strong>BB&amp;K Speaker</strong>: Matt Schettenhelm, Associate<br /> The FCC is in the midst of a major rulemaking that may redefine local authority over cell tower placement and modification. This presentation will provide an update on the status of the FCC rulemaking, and recent court rulings, and what steps localities can take locally and nationally to protect their interests.<br /> <br /> To view this presentation <a target="_blank" href="88E17A/assets/files/Documents/Matt_Schettenhelm_IMLA 2014.PPTX"><span style="color: #0000ff">click here</span></a>.</p> <p>STORMWATER: NEW REQUIREMENTS FOR DEVELOPMENT PROJECTS AND EPA&rsquo;S PROPOSED RULE RE-DEFINING &ldquo;WATERS OF THE U.S.&rdquo; WILL HAVE MAJOR COST AND OPERATIONAL IMPACTS FOR MUNICIPALITIES<br /> Sept. 10, 2014<br /> 2 &ndash; 3 p.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Andre Monette, Associate <br /> Other Presenters: Ryan Baron, Senior Deputy County Counsel, Orange County, California; Marc E. Gori, Assistant County Attorney, Fairfax County, Virginia<br /> Comments on the EPA&rsquo;s Proposed Rule broadly defining &ldquo;Waters of the U.S.&rdquo; under the Clean Water Act are due in October. The controversial proposed changes are important to local government and public agencies because, if adopted, they will greatly expand the jurisdictional reach of the CWA and change how municipal stormwater systems are categorized.</p> <p>STORMWATER MANAGEMENT/MS4 PERMITTING<br /> Sept. 11, 2014<br /> 9:15 &ndash; 10:15 a.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Gene Tanaka, Partner<br /> Other Presenters: Steve Roy, Larry Coffman and Lee Epstein<br /> <br /> To view this presentation <a target="_blank" href="88E17A/assets/files/Documents/2014.7.14_IMLA Conf. -Stormwater Management_MS4.PPTX"><span style="color: #0000ff">click here</span></a>.</p> <p>HOT FEDERAL ISSUES: TAXES, TRANSPORT AND COMMUNITY DEVELOPMENT<br /> Sept. 11, 2014<br /> Noon &ndash; 1 p.m.</p> <p style="margin-left: 40px">A review of critical federal issues that may affect your community&rsquo;s bottom line and economic development plans &ndash;and the opportunities and risks they present to municipalities.</p> <p style="margin-left: 40px"><em>&quot;</em>Update on Congressional Actions Affecting Your Community and Your Budget&quot;<br /> <strong>BB&amp;K Speaker</strong>: Gerard Lederer, Partner<br /> Congress is considering a number of measures &ndash; including some that could block taxation of Internet access, allow taxation of e-commerce and could affect the funds available for transportation projects &mdash; that could significantly affect communities throughout the country. This presentation will provide an update on Congressional actions, including those affecting he Highway Trust Fund, and what those actions mean for communities.</p> <p style="margin-left: 40px">&quot;Rail Transport and Public Safety -&nbsp; Is There a Solution?&quot;<br /> <strong>BB&amp;K Speaker</strong>: Harriet Steiner, Partner<br /> Cities have raised significant concerns regarding the safety of rail freight transiting through their communities. This presentation will focus on the status of federal rules regarding train safety &ndash; and their effectiveness.<br /> <br /> &quot;Speeding Development By Planning for the Endangered Species Act&quot;<br /> <strong>BB&amp;K Speaker</strong>: Michelle Ouellette, Partner<br /> The Endangered Species Act can block development projects or it can be used to help clear the way for future development. This presentation will discuss how communities are working with the ESA to speed development.<br /> <br /> To view this presentation <a target="_blank" href="88E17A/assets/files/Documents/Gerry_Michelle_2014IMLA.PPTX"><span style="color: #0000ff">click here</span></a>.<br /> &nbsp;</p> <p>WONK Breakfast<br /> Sept. 12, 2014<br /> 7:30-8:30 a.m.</p> <p style="margin-left: 40px">&quot;Disruptive Technologies: Responding To Uber, Lyft, AirBnB, Drones, Small Cells and other Technologies and Applications That Are Challenging Our Communities&quot;<br /> <strong>BB&amp;K Hosts: </strong>Harriet Steiner and Gerard Lederer<br /> <br /> To view&nbsp;flyers from this&nbsp;presentation click on the links below:<span style="color: #0000ff"><br /> </span><span style="color: #0000ff"><br /> </span><span style="color: #0000ff"><a href="88E17A/assets/files/Documents/WONK Breakfast ALPR.pdf"><span style="color: #0000ff">Automated License Plate Readers</span></a></span><span style="color: #0000ff"><br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/Drones.pdf"><span style="color: #0000ff">Unmanned Aerial Vehicles (Drones)</span></a></span><span style="color: #0000ff"><br /> <br /> </span><a target="_blank" href="88E17A/assets/files/Documents/WONK Breakfast TNCs.pdf"><span style="color: #0000ff">Transportation Network Companies</span></a><span style="color: #0000ff"><br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/BWC.pdf"><span style="color: #0000ff">Body Worn Cameras</span></a></span><span style="color: #0000ff"><br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/E-Cigs.pdf"><span style="color: #0000ff">E-Cigarettes</span></a></span><span style="color: #0000ff"> <br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/Online Rental Marketplaces.pdf"><span style="color: #0000ff">Online Rental Marketplaces</span></a><br /> <br /> <a target="_blank" href="88E17A/assets/files/Documents/Small Cells and Distributed Antenna Systems.pdf"><span style="color: #0000ff">Small Cells and Distributed Antenna Systems</span></a></span></p> <p><br /> Where:<strong><br /> </strong>Baltimore, Maryland</p>Conferences & Speaking Engagements10 Sep 2014 00:00:00 -0800 Attorneys Discuss Fair Housing Claims, Environmental Legal Issues and Social Media<p>BB&amp;K attorneys <b>Jeffrey Ballinger</b>, <b>Danielle Sakai</b> and <b>John Brown</b> will be joined by many other esteemed California city officials at the League of California Cities&rsquo; Annual Conference and Expo, Sept. 3-5, 2014, in Downtown Los Angeles.</p> <p>BB&amp;K is a sponsor of this event.<br /> <br /> Friday, Sept. 5<br /> 10:30 &ndash; 11:45 a.m.<br /> <strong>&ldquo;Citizen Engagement: New Uses of Social Media and the Body Politic&rdquo; </strong><br /> BB&amp;K Speaker: John Brown, City Attorney of Ontario and the Town Attorney of Apple Valley<br /> Other Speakers: Ontario Assistant City Manager and Public Information Officer Jacob Green, Apple Valley Marketing &amp; Public Affairs Officer Kathie Martin and TW2 Marketing Principal Teresa Warren<br /> <br /> To view a PowerPoint of this presentation, please <a target="_blank" href="88E17A/assets/files/Documents/LCC_ Social Media Presentation.pdf"><span style="color: #0000ff">click here.</span></a><br /> <br /> <u>City Attorneys' Department Track</u><br /> <br /> Wednesday, Sept. 3<br /> 1 &ndash; 2:45 p.m.<br /> General Session<br /> <strong>&ldquo;Fair Housing Claims and Enforcement Actions&rdquo;&nbsp;</strong><br /> BB&amp;K Speaker: Jeffrey Ballinger, City Attorney, Fontana and San Jacinto, Assistant City Attorney, Big Bear Lake</p> <p>Thursday, Sept.&nbsp; 4<br /> 8 &ndash; 9:30 a.m.<br /> General Session<br /> <strong>&ldquo;Environmental Legal Issues and Due Diligence When Cities Acquire Real Property&rdquo;</strong><br /> BB&amp;K Speaker:&nbsp; Danielle G. Sakai, Partner Environmental &amp; Natural Resources</p> <p>For more information on the City Attorneys' Department Track, <a target="_blank" href=""><span style="color: #0000ff">click here.</span></a><br /> <br /> Visit us at Expo booth #507.</p> <p><b>Location</b><br /> Los Angeles Convention Center</p> <p>For more information or to register, please visit the <a target="_blank" href=""><span style="color: #0000ff">League of California Cities Annual Conference &amp; Expo event page.</span></a></p>Conferences & Speaking Engagements03 Sep 2014 00:00:00 -0800 Adopts Historic Sustainable Groundwater Management Act<p>On Friday night, the California Legislature adopted a lawmaking package, including Senate Bills 1168 and 1319 and Assembly Bill 1739, and the bills are now awaiting Gov. Jerry Brown&rsquo;s signature. Once signed, the bills would establish the Sustainable Groundwater Management Act and comprehensively regulate groundwater for the first time in California&rsquo;s history. In light of the ongoing drought, the Act intends to provide local and regional agencies with the authority to sustainably manage groundwater basins within their respective jurisdictions.<br /> <br /> To do so, the Act requires that all high and medium priority groundwater basins, as characterized by the Department of Water Resources, be governed by one or more groundwater sustainability agencies by June 30, 2017. Counties will be presumed to be the groundwater sustainability agency for unmanaged areas. Groundwater sustainability agencies for all high and medium priority basins must adopt a groundwater sustainability plan by Jan. 31, 2022. For basins subject to critical overdraft conditions, the plan must be adopted by Jan. 31, 2020.&nbsp;</p> <p>Groundwater sustainability plans must include long-term planning, objectives and goals to achieve basin sustainability within 20 years of plan implementation. Upon adoption of a groundwater sustainability plan, the groundwater sustainability agency must submit an annual report to the Department of Water Resources of groundwater data for the basin, including elevation, aggregate extraction, water usage and any changes in groundwater storage to monitor progress toward this sustainability goal.</p> <p>The Act will impose a number of new requirements on public agencies related to groundwater management and provides avenues for state intervention when local agencies are unwilling or unable to manage the state&rsquo;s groundwater basins. With more than 100 years of experience representing public agencies, and its national reputation on water and environmental issues, BB&amp;K is equipped to handle all issues for complying with these new legal requirements. Among other areas, BB&amp;K attorneys have extensive experience in the following:</p> <ul> <li>Water Rights/Water Usage/Water Supply Planning: Groundwater sustainability agencies have the power to regulate, limit or suspend water extractions from the basin. BB&amp;K has extensive experience with the exercising of water rights and assisting water supply agencies with contingency planning.</li> <li>General Plan Adoption/Amendment: The substantial amendment or adoption of a general plan must consider any adopted groundwater sustainability plan. As experts on general plan issues, BB&amp;K can assist with integrating the review and requirements of those plans with the general plan process.</li> <li>Joint Powers Authorities/Agreements: A groundwater sustainability agency can consist of multiple local agencies. Particularly, where groundwater basins underlie more than one county, coordination and potential exercise of joint powers may be necessary.</li> <li>Negotiation/Mediation: The Act does not include guidance for resolving disputes amongt agencies who may wish to form a groundwater sustainability agency. Additionally, the Act provides that it can apply to Native American Tribes to the extent permitted by law. Thus, negotiating and handling outreach amongt multiple agencies/entities may be crucial.</li> <li>Validation Actions/Administrative Writ Litigation: The Act would allow groundwater sustainability plans to be verified via validation action. Unless the validation statutes are relied upon, the Act also provides that agency actions may be challenged via petition for a writ of administrative mandate.</li> <li>Imposing Fees/Fines and Enforcement Actions: Groundwater sustainability agencies are given the authority to impose fees, and also to impose fines and to undertake enforcement proceedings for violations of groundwater sustainability plans. BB&amp;K attorneys have expertise in the process and requirements for such actions, including the applicability of Proposition 218.</li> <li>Inspection Warrants/Property Access Agreements: The Act requires agencies to conduct baseline studies of groundwater conditions, requiring access to lands overlying the basin.&nbsp;</li> <li>Open Meeting/Public Hearing/Notice Requirements: The Act would impose a variety of public consultation, notice, public hearing and other outreach requirements.</li> </ul> <p>For more information about how the Sustainable Groundwater Management Act will affect your agency, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> or <a target="_blank" href=";LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts </span></a>practice groups, or your <a target="_blank" href=""><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 Aug 2014 00:00:00 -0800 BB&K Attorneys Named to The Best Lawyers in America 2015 List<p><b>RIVERSIDE, Calif.</b>&nbsp;- Best Best &amp; Krieger LLP is pleased to announce that 14 of its attorneys were selected by their peers for inclusion on <i>The Best Lawyers in America</i>&copy; 2015 list. The attorneys are from BB&amp;K offices throughout California and represent a diverse cross-section of the firm&rsquo;s practices.</p> <p><i>Best Lawyers</i>, first published in 1983, is based on an exhaustive peer-review survey in which more than 52,000 leading attorneys cast nearly 5.5 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed. To read more about <i>Best Lawyers</i>, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</p> <p>The BB&amp;K attorneys included on <i>The Best Lawyers in America</i>&copy; 2015 list, along with their BB&amp;K office and practice areas for which they were recognized, are:</p> <ul> <li>Eric L. Garner, Los Angeles, Environmental Litigation and Water Law<br type="_moz" /> &nbsp;</li> <li>Arthur L. Littleworth, Riverside, Environmental Litigation, Energy, Natural Resources and Water law<br type="_moz" /> &nbsp;</li> <li>George M. Reyes, Riverside, Corporate Law<br type="_moz" /> &nbsp;</li> <li>Gregory K. Wilkinson, Riverside, Environmental Litigation, Energy, Natural Resources and Water law<br type="_moz" /> &nbsp;</li> <li>Michelle Ouellette, Riverside, Environmental Litigation, Energy, Environmental and Natural Resources law<br type="_moz" /> &nbsp;</li> <li>Edward J. Quinn, Jr., Sacramento, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Harriet A. Steiner, Sacramento, Municipal Litigation and Municipal Law<br type="_moz" /> &nbsp;</li> <li>Iris P. Yang, Sacramento, Municipal Litigation, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Joseph E. Coomes, Jr., Sacramento, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>T. Brent Hawkins, Sacramento, Municipal Law<br type="_moz" /> &nbsp;</li> <li>John E. Brown, Ontario, Municipal Law<br type="_moz" /> &nbsp;</li> <li>Stephen P. Deitsch, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Robert J. Hanna, San Diego, Commercial Litigation<br type="_moz" /> &nbsp;</li> <li>Roderick E. Walston, Walnut Creek, Natural Resources and Water law</li> </ul> <p style="text-align: left">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>Press Releases19 Aug 2014 00:00:00 -0800 Supply and Infrastructure Bond to be Placed on November Ballot<p>How public agencies seek funding for water quality and storage projects will be impacted if voters approve the state water bond measure passed by the Legislature and signed by Gov. Jerry Brown late Wednesday.<br /> <br /> Just before the deadline for inclusion on the November ballot, AB 1471, also known as the Water Quality, Supply, and Infrastructure Improvement Act of 2014, was approved to replace the previous bond measure of $11 billion, which was deemed too costly. If passed by voters, the new bond measure includes $7.5 billion for a water quality, supply and infrastructure improvement program.<br /> <br /> Specifically, the measure would allocate $520 million for projects to improve water quality and wastewater treatment, and provide more reliable safe drinking water. Priority for this funding would be given to projects benefitting disadvantaged communities. Also, of the $7.5 billion made available by the bond measure, $2.7 billion would be available for water storage projects. Storage projects would be selected by the California Water Commission through a competitive process that ranks projects based on expected return and overall public benefit. However, to be eligible, applicants for storage project funds must first complete feasibility studies and draft environmental documents.</p> <p>Additionally, the measure would allocate nearly $1.5 billion for watershed protection and restoration projects; $900 million for groundwater cleanup and management; $810 million for integrated regional water management, water conservation and stormwater capture; $725 million for water recycling projects and facilities; and $395 million for flood management projects.</p> <p>In various parts of this bill, statements are made that funds from this bond shall not be expended to pay the costs of Delta conveyance facilities (i.e. twin tunnels), and that those costs shall be the responsibility of the agencies that benefit from those facilities.</p> <p>If approved by voters, public agencies seeking funding for any projects will need to evaluate how their project will be prioritized and ranked for eligibility based on the various criteria used for each category of funding. This includes the availability of additional federal, local or private funding, and an evaluation of both technological and economic feasibility.</p> <p>For more information about how the Water Quality, Supply, and Infrastructure Improvement Act may affect your agency and its water projects, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> and <a target="_blank" href=";LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice groups, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K</span></a> attorney.</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 Alerts14 Aug 2014 00:00:00 -0800 BB&K Attorneys Among Daily Journal's Top 50 California Development Attorneys for 2014<p><b>LOS ANGELES</b>&nbsp;- Please join Best Best &amp; Krieger LLP in congratulating Scott Campbell, Steven DeBaun and Michelle Ouellette for being among an elite group of attorneys working to transform California&rsquo;s infrastructure. Whether it&rsquo;s improving water supply or quality or transportation systems, these BB&amp;K attorneys are standouts and have earned spots on the competitive <i>Daily Journal</i> Top 50 Development Lawyers list for 2014.</p> <p>Campbell&rsquo;s work improving the City of Avalon&rsquo;s water infrastructure&nbsp;&mdash; a transformation that got the Catalina Island tourist enclave off Heal the Bay&rsquo;s &ldquo;Beach Bummer&rdquo; list &mdash; was recognized by the <i>Daily Journal</i> editors. Campbell, who serves as Avalon&rsquo;s city attorney, used ingenuity and creativity to secure the funds for the much-needed improvements following Gov. Jerry Brown&rsquo;s dismantling of redevelopment agencies, the <i>Daily Journal </i>reported.</p> <p>&ldquo;People go in the water and there are no posting of warning signs by the County of Los Angeles,&rdquo; Campbell told the <i>Daily Journal</i>. &ldquo;This year&rsquo;s Beach Bummer list didn&rsquo;t have Avalon on it and, next year, we are hoping to get an &lsquo;A&rsquo; on the Heal the Bay list.&rdquo; <a target="_blank" href=";A=1560&amp;format=xml"><span style="color: #0000ff">Campbell</span></a> practices in BB&amp;K&rsquo;s Los Angeles office and is a partner in the Municipal Law and Litigation practice groups.</p> <p>DeBaun is overseeing a $1.2 billion toll lane project for the State Route 91 freeway, as well as a mixed-flow lane for the same freeway, and is also working on a $250 million commuter rail line project to expand Metrolink between Riverside and Perris. Both projects, noted the <i>Daily Journal</i>, have had significant hurdles. DeBaun drafted legislation so the Riverside County Transportation Commission, to which he has served as general counsel for 20 years, could construct and operate the toll facility. Then, there were many other property acquisition and agency coordination issues to work through.</p> <p>&ldquo;It&rsquo;s been a real struggle moving through these agreements,&rdquo; DeBaun told the <i>Daily Journal</i>. &ldquo;I had wondered if we&rsquo;d ever get to the end point, but it&rsquo;s clearly going to happen.&rdquo; <a target="_blank" href=";A=1576&amp;format=xml"><font color="#0000ff">DeBaun</font></a> works in BB&amp;K&rsquo;s Riverside office and is a partner in the Special Districts, Municipal Law and Education Law practice groups.</p> <p>Ouellette was recognized for her work leading the Santa Margarita Water District legal team to a significant victory in a case stemming from a project to supply approximately 50,000 acre-feet of water per year, over 50 years, to water users throughout Southern California. The project is a unique private/public partnership and it&rsquo;s environmental review and designation of the Water District as lead agency were challenged in six different lawsuits. In a separate matter, the <i>Daily Journal</i> editors also noted that, on behalf of the City of Riverside, Ouellette and the BB&amp;K legal team prevailed on a transmission grid project, which addressed potential power shortages.</p> <p>Both of &nbsp;these cases addressed the issue of who should be the lead agency under the California Environmental Quality Act, and, in the Cadiz case, for public/private partnerships. Ouellette told the <i>Daily Journal</i>. &ldquo;I think that if we want to encourage such partnerships, the public agency who is entering into them should be the lead agency, which I believe is fully supported by the relevant [California Environmental Quality Act] statute and guidelines.&rdquo; <a target="_blank" href=";A=1650&amp;format=xml"><font color="#0000ff">Ouellette</font></a> also practices in BB&amp;K&rsquo;s Riverside office and is a partner in the Environmental Law &amp; Natural Resources and Municipal Law practice groups.</p> <p>Read more about the <i>Daily Journal&rsquo;s</i> Top 50 Development Attorneys by visiting the publication&rsquo;s <a target="_blank" href=""><font color="#0000ff">website</font></a> (subscription required).</p>Press Releases14 Aug 2014 00:00:00 -0800 Supreme Court Rules Local Governments Are Not Required to Comply With CEQA Before Adopting a Voter-Sponsored Initiative<p>Local governments may adopt voter-sponsored initiatives without conducting environmental review pursuant to the California Environmental Quality Act, the California Supreme Court has ruled. In a unanimous decision handed down Thursday, the court held in <i>Tuolumne Jobs &amp; Small Business Alliance v. Superior Court</i> that the City of Sonora properly adopted a land-use ordinance brought by a voter-sponsored petition, even though the City did not undertake an environmental review.</p> <p>The opinion clarifies that land-use initiatives proposed by voters are not subject to CEQA review, even when a local government adopts an initiative proposed by voters. The court also distinguished initiatives generated by city councils, confirming the existing rule that cities must comply with CEQA before placing a <u>city-generated</u> initiative on the ballot.</p> <p>At issue in <i>Tuolumne Jobs</i> was the expansion of a Wal-Mart store into a Wal-Mart Supercenter. Before the City approved the project, a group of citizens brought an initiative petition to the City that would streamline approval of the project. The City had three choices: (1) adopt the initiative, (2) submit the initiative to a vote at a special election or (3) order a report prepared regarding the project, and, after review of the report, either adopt the initiative or submit it to the electorate. The City chose to have a report prepared and, afterward, adopted the ordinance that the initiative proposed.</p> <p>Tuolumne Jobs &amp; Small Business Alliance sued, arguing that the City should have conducted CEQA review before adopting the voter-sponsored initiative ordinance. After reviewing the statutory language, legislative history and public policy, the Supreme Court disagreed. It found that it would be impossible for a city to complete a CEQA review within the timeframes allowed for adopting a voter-sponsored initiative. It also noted that several bills that attempted to require CEQA or other environmental review of local initiatives had failed. In addition, the court determined that, from the inception of the initiative power, cities have had the option to directly adopt voter initiatives. Accordingly, the Supreme Court held that the City was not required to conduct a CEQA review before adopting the ordinance.</p> <p>For more information about this case and how&nbsp;it may affect your agency, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=492&amp;format=xml"><font color="#0000ff">Environmental Law &amp; Natural Resources</font></a> practice group, or your <a target="_blank" href=""><font color="#0000ff">BB&amp;K attorney</font></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 Alerts08 Aug 2014 00:00:00 -0800 Court of Appeals Rules that California Water District May Recover Expectancy Damages from the United States<p>A recent federal appellate decision may clear the way for water purveyors to collect damages when the federal government shortens water deliveries, in breach of water supply contracts. The U.S. Court of Appeals for the Federal Circuit reversed a Court of Federal Claims (trial court) for its denial of expectancy damages in a decades-long breach of contract case, ruling on Aug. 1 that the trial court erred in its analysis of how expectancy damages are to be calculated based on the facts of the case. The decision opens the door to the possibility for water districts with federal government water supply contracts to obtain monetary damages from the government if their water deliveries are shorted due to an inexcusable breach of contract.</p> <p>In 1983, Central San Joaquin Water Conservation District contracted with the United States Bureau of Reclamation for an appropriation of water from the New Melones Reservoir within the San Joaquin Valley to support agricultural interests in the Valley. However, nearly 10 years later, the Bureau informed the District it would not be able to meet the contract&rsquo;s demands, and the District eventually purchased water from the South San Joaquin Irrigation District instead.</p> <p>The District sued the United States for breach of contract in federal court in 1993. The trial and appellate courts disagreed on liability, and the appellate court reversed the trial court and determined that the United States was liable for breach of contract from 1999 to 2004. It returned the case to the trial court for a damages determination for the breaches that occurred during that time.</p> <p>On remand, the trial court found that the District was entitled to recover damages in the amount of $149,950 &mdash; the difference between what the District paid to SSJID for water and the total amount it would have paid to the Bureau for the water in 2002 to 2004. The trial court denied any expectancy damages, finding that the District had failed to present evidence demonstrating how much water it might have needed from 1999 to 2004 in a non-breach circumstance. Expectancy damages are based on the value of the injured party's interest lost by the failure of the other party to fulfill its contractual obligations. The appeal followed.</p> <p>Here, the appellate court ruled that the trial court erred in its expectancy damages analysis because it only examined the conduct during the period of liability (1999 to 2004) instead of beginning in 1993, and focused on the District&rsquo;s failure to request water in certain years, following years of announcements from the Bureau that it could not provide the District water.</p> <p>To determine expectancy damages, one must consider what would have happened had the contract been performed. The appellate court excused the District&rsquo;s failure to request water from the Bureau in certain years because, at &ldquo;some point, most people stop asking for what they have been told they are not going to get, and they make other plans to meet their needs.&rdquo;</p> <p>Thus, the appellate court vacated the trial court&rsquo;s judgment in part and remanded the case for a reconsideration of expectancy damages with instructions for the trial court to consider the effect of the Bureau&rsquo;s announcements of non-delivery, beginning in 1993, on the expectations of the District and the agricultural community it served. The District was also awarded costs on appeal.</p> <p>Based upon the court&rsquo;s decision, it appears likely that the District will receive damages in excess of the $149,950 it originally received.</p> <p>If you have questions about this case, or how your agency may be affected, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href=";LPA=425&amp;format=xml"><span style="color: #0000ff">Water Rights group</span></a>, or your <a target="_blank" href=""><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 Alerts07 Aug 2014 00:00:00 -0800 of Planning and Research Issues Draft Update to State CEQA Guidelines for Analyzing Traffic Impacts<p>As mandated by 2013&rsquo;s Senate Bill 743, the Office of Planning and Research has released its draft update to the State CEQA Guidelines, <a target="_blank" href=""><span style="color: #0000ff">available here</span></a>. SB 743 requires OPR to update the Guidelines to set forth alternative methods of measuring transportation impacts under CEQA. These methods are to replace the frequently relied upon Level of Service method, which assesses traffic impacts by measuring automobile delay.</p> <p>The draft update proposes adding a new section 15064.3 to the Guidelines and amending Guidelines Appendix F (Energy Impacts) to describe possible mitigation measures and alternatives to mitigate traffic impacts. The update also amends the threshold questions related to transportation contained in Guidelines Appendix G section XVI to conform to the proposed new section 15064.3.</p> <p>Specifically, the update states that a project&rsquo;s effect on automobile delay, or LOS, does <u>not</u> constitute a significant environmental impact for traffic purposes. Instead, it provides that the Vehicle Miles Traveled method (i.e. assessing the amount and distance of automobile travel associated with a project) is &ldquo;generally&rdquo; the &ldquo;best&rdquo; measurement of whether a traffic impact is significant. The proposed amendments to the Guidelines do not, however, address whether LOS may be an appropriate metric for determining impacts to other environmental resources.</p> <p>Where a significant traffic impact is identified using the VMT method, updated Appendix F contains a list of potential mitigation measures and project alternatives to reduce the impact&rsquo;s significance. The mitigation measures include increasing access to transit and improving transit services, and the alternatives include locating projects near transit and increasing the mix of uses in a project.</p> <p>If adopted, the update would apply immediately to projects within &ldquo;transit priority areas,&rdquo; which are areas within one-half mile of an existing or planned major transit stop. Outside of those areas, a lead agency may elect to be immediately governed by the provisions of the update. However, after January 1, 2016, the update would apply statewide.</p> <p>Should your agency wish to submit input to OPR on the proposed updates, including the use of the VMT method or the proposed mitigation measures, comments must be submitted by 5p.m. on October 10. Comments may be submitted either electronically to <a href=""><font color="#0000ff"></font></a>, or by mail or hand delivery to:</p> <p>Christopher Calfee, Senior Counsel<br /> Governor&rsquo;s Office of Planning and Research<br /> 1400 Tenth Street<br /> Sacramento, California 95814</p> <p>If your agency would like assistance preparing and/or submitting comments to OPR, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law &amp; Natural Resources practice group, or your BB&amp;K attorney.</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 Alerts07 Aug 2014 00:00:00 -0800 shortage threatens global security<p>By: Rebecca Lowe and Emily Silvester</p> <p><i>Global Insight</i>, a publication of the International Bar Association, examines the growing danger that the lack of water poses on global security. Noting that, by 2050, almost 40 percent of the world population will live in areas where water is in demand, the risk of conflict will increase exponentially as countries and territories fight for the scarce resource. Tension is expect to continue to increase in Central Asia, where the shrinking Aral Sea basin, which sits between Uzbekistan and Kazakhstan, is vital to the 43 million people who live in the region. Plans by two states upstream to build dams could drastically decrease the Aral Sea. <i>Global Insight</i> reports:</p> <p>&ldquo;Due to these divided interests, construction of Tajikistan&rsquo;s colossal Rogun dam over the Vakhsh River was suspended in August 2012 pending a World Bank assessment. While tensions remain high, Uzbekistan and Kazakhstan have jointly called for the UN to review the potential impact of the dams, and voiced a desire for dialogue between the four states to resolve the issue cooperatively.</p> <p>&ldquo;The key to success for such dialogue, stresses Eric Garner, Managing Partner of US law firm Best Best &amp; Krieger and former Chair of the IBA Water Law Committee, is information and transparency &ndash; something easier said than done in regions lacking democracy and effective governance. &lsquo;In terms of building really successful water security there are three important elements,&rsquo; he says. &lsquo;Communication between states at the technical level, the legal level and the governmental level.&rsquo; The first of these is the most significant, he believes. &lsquo;Technical work is the foundation for good water management and there really cannot be enough of it [&hellip;]. You need experts to sit down and talk to each other, and establish some baseline from which the lawyers and governments can start to resolve these disputes. Without that baseline, you&rsquo;re nowhere.&rsquo;&rdquo;</p> To read the entire article in <i>Global Insight</i>, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.BB&K In The News03 Aug 2014 00:00:00 -0800 Barbara County Plans for Utility-Scale Solar Projects on Farmland<p>By: Leora Broydo Vestel</p> <p>Santa Barbara County may soon have its first utility-scale renewables project. The county&rsquo;s planning commission has approved a 40 MW solar-energy project proposed by First Solar, to be built on prime farmland in Cuyama Valley. The county is moving forward with land-use changes that would allow for utility-scale solar development totaling 75 MW in the valley, as officials try to strike a balance between resource protection and renewable-energy development.</p> <p>The Santa Barbara County Planning Commission on July 22 unanimously approved a proposal by First Solar to build a 40 MW solar energy-generation facility, the Cuyama Solar Project, on 327 acres of prime farmland. If built, the project would be the first large-scale renewable-energy facility in the county.</p> <p>The commission also green-lighted changes to the county&rsquo;s land-use development code to allow for utility-scale solar projects on up to 600 acres of prime agricultural land in the Cuyama Valley Rural Region, including the site for the First Solar project.</p> <p>The 600 acres can accommodate solar projects totaling 75 MW given existing transmission infrastructure, according to county estimates. The area is said to have the highest levels of insolation in the county.</p> <p>The project and code changes, which still require the approval of the Santa Barbara County Board of Supervisors, would provide a permitting pathway for solar-energy project development in a county that has yet to see the construction of any large-scale renewables projects. A 97.5 MW wind project by Acciona Energy approved by the county in 2009 would have been the first, but remains unbuilt.</p> <p>Commissioner C. Michael Cooney said the project represents &ldquo;a great opportunity&rdquo; for the county to join other jurisdictions in California that have permitted utility-scale solar projects.</p> <p>County officials are trying to strike a balance between competing goals of resource protection and renewable-energy development.</p> <p>The First Solar project site has been used to grow crops such as carrots, onions and potatoes since the early 1980s. It consists of about 250 acres of prime farmland and 75 acres of farmland of statewide impor&shy;tance, as classified by the state Department of Con&shy;servation.</p> <p>Converting the land to solar production requires the partial cancellation of a Williamson Act contract that encumbers 167 acres of the 327-acre site. The project would result in a loss of approximately 0.03 percent of all land currently enrolled in the county&rsquo;s Williamson Act program.</p> <p>The Williamson Act, or California Land Conser&shy;vation Act, was approved by the Legislature in 1965 to stem conversion of farmland to urban uses. Under the act, landowners can sign a contract in which they agree not to develop farmland for a minimum of 10 years in exchange for reduced property taxes.</p> <p>State law provides that a county can cancel a Williamson contract if it con&shy;cludes the public benefits of a proposed project substantially outweigh the objectives of the act&mdash;a determination that was made for the Cuyama Solar Project.</p> <p>The project benefits outlined by the county include support for local and state renewable-energy goals, a reduction in energy-related greenhouse-gas emissions, and reduced water usage in an overdrafted water basin.</p> <p>About 960 acre-feet per year of water extracted from the Cuyama Valley groundwater basin is used to irrigate crops at the project site, a report by county staff notes.</p> <p>&ldquo;Solar uses very little water,&rdquo; observed Sarah Owsowitz, a land-use and California Environmental Quality Act attorney at Best Best &amp; Krieger. &ldquo;That can&rsquo;t be a bad thing right now.&rdquo;</p> <p>Owsowitz also noted that it is in the county&rsquo;s financial interest to approve the project, given the state no longer reimburses local jurisdictions for lost property taxes due to Williamson Act contracts.</p> <p>Further, the voiding of the Williamson contract to make way for the Cuyama Solar Project will net the county a $125,000 cancellation fee, to be paid by the landowner.</p> <p>&ldquo;It seems to me that the county would have very little incentive to prevent a project like this from going forward,&rdquo; Owsowitz said.</p> <p>In order to mitigate the &ldquo;significant and unavoidable&rdquo; impacts to agricultural resources, solar projects in Cuyama Valley will be required to permanently preserve off-site agricultural land at a ratio of 1:1 through the purchase of an agricultural conservation easement, buying credits from an agricultural farm-land mitigation bank or by other means spelled out in an environmental impact report.</p> <p>The commission received close to 60 letters from individuals and groups expressing support for the First Solar project. The county&rsquo;s Agricultural Preserve Advisory Committee voted in favor of it.</p> <p>At the July 22 meeting, commissioners approved additional avian protections to the project at the behest of the Santa Barbara Audubon Society. The group expressed opposition to the facility on the grounds that it would harm California condors.</p> <p>The Board of Supervisors will consider approving the project and the proposed changes to the land-use development code in September.</p> <p>&ldquo;I am very proud to be a part of the commission that&rsquo;s recommending this project to the board,&rdquo; said Commissioner Joan Hartmann.</p> <p>If the project gets the green light from the board, construction would begin in early 2015 and entail the installation of about 600,000 solar-photovoltaic modules that use single-axis tracking technology.</p> <p>Pacific Gas &amp; Electric will buy the power generated from the facility under a long-term power-purchase agreement.</p> <p>Meanwhile, the California Roundtable on Agriculture and the Environment&mdash;a coalition of farm and environmental organizations, including American Farmland Trust&mdash;issued a policy document this month that calls on state policymakers to &ldquo;take urgent action&rdquo; to prevent widespread conversion of farmland to other uses.</p> <p>California loses an average of 30,000 acres of farmland per year to non-agricultural uses, according to CRAE.</p> <p>&ldquo;Today, the pressures on California agricultural land seem to be gathering additional momentum rather than being dissipated by effective policies,&rdquo; CRAE states. &ldquo;New and significant threats such as high speed rail, increased oil and gas development, and utility-scale solar development put tens, if not hundreds of thousands of acres of agricultural land at risk.&rdquo;</p> <p>Laurel Perez, a planning and permitting consultant for First Solar, noted that the power generated by the Cuyama Solar Project will help local farmers, given the region is prone to occasional brownouts, which impact the operation of well pumps.</p> <p>&ldquo;Adding this power to the local grid provides a safety net for farmers,&rdquo; Perez said. &ldquo;There&rsquo;s a need.&rdquo; Leora Broydo Vestel</p> <p>To read the full issue of California Energy Markets, <span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/Cem1293.pdf">click here</a></span><span style="color: #0000ff"> </span>(pdf).</p> <p><i>This article was reprinted with permission from the California Energy Markets and <a target="_blank" href=""><span style="color: #0000ff">Energy NewsData Corp</span></a>.</i></p>BB&K In The News25 Jul 2014 00:00:00 -0800