Best Best & Krieger News Feed Best and Krieger is a Full Service Law Firmen-us27 Jan 2015 00:00:00 -0800firmwise and the Big Drought<p>BB&amp;K Attorneys Paeter Garcia and Charity Schiller are among the panelists on &ldquo;CEQA and the Big Drought&rdquo; at the Association of Environmental Professionals Conference March 22-25 in Santa Barbara.</p> <p>California&rsquo;s ongoing drought poses numerous challenges, with consequences for both the state&rsquo;s physical and regulatory environments. This panel will address how CEQA is being applied, or in some cases waived, for projects intended to provide drought relief, and it will also discuss challenges related to completing legally defensible CEQA documents for projects that will be built under drought conditions.</p> <p>Paeter will discuss the complexities of water supply planning and preparing Water Supply Assessments when almost any water source may be subject to unknown levels of future curtailment as the drought drags on.&nbsp; Charity will provide an overview of the exemptions to CEQA contained in Gov. Jerry Brown&rsquo;s two emergency drought declarations and how these apply, or don&rsquo;t, to many of the water supply projects that are being developed by local governments and water districts.&nbsp; She will also discuss legal defensibility as it relates to water supply conclusions contained in CEQA documents.&nbsp;</p> <p><strong>When<br /> </strong>March 22-25, 2015</p> <p><strong>Where</strong><br /> Fess Parker Resort, Santa Barbara</p> <p>For more information or to register, <a target="_blank" href=""><span style="color: #0000ff">click here.</span></a></p>Conferences & Speaking Engagements22 Mar 2015 00:00:00 -0800 Land Use Law & Policy<p>BB&amp;K Partner Michelle Ouellette co-chairs and BB&amp;K co-sponsors this two-day conference, which also features several BB&amp;K speakers. The economy has improved much throughout 2014 and is expected to continue to improve into 2015. Private development and municipal redevelopment is back. Private counsel, federal, state and municipal counsel, and land use consultants need to be ready to address the pent-up demand.</p> <p>Will you be ready? What are the new hurdles to private, federal, state and community development projects? Certainly climate change requirements, CEQA and related environmental requirements are in flux. And what about the newest high hurdle to clear&mdash;water supply? Even with recent heavy precipitation, the drought is far from over and water supply will likely remain a dominant hurdle to development in California.</p> <p>Other issues that need to be on your land use radar screen includes large-scale habitat and conservation planning projects; species and wetlands protection; coastal development challenges; medical marijuana sales and cultivation; and the controversial practice of &ldquo;ballot box&rdquo; end runs around traditional land use regulation and compliance.</p> <p>MCLE credit is available.</p> <p><b>BB&amp;K Speakers</b><br /> Shawn Hagerty: &ldquo;Stormwater Management and MS4 Permits &mdash; Get It Done Right the First Time&rdquo;<br /> Monday, March 9<br /> a.m.</p> <p>Charity Schiller: &ldquo;Life in the Country &mdash; Not Letting Climate Change Law Compliance Serve as a Barrier to Growth&rdquo;<br /> Monday, March 9<br /> 3:15 p.m.</p> <p>Jeffrey V. Dunn: &ldquo;Siting Medical Marijuana Dispensaries&rdquo;<br /> Monday, March 9<br /> 4:15 p.m.</p> <p><b>When</b><br /> Monday, March 9 &ndash; Tuesday, March 10, 2015</p> <p><b>Location</b><br /> Westin Hotel, Sacramento</p> <p>For see the entire program, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>. To register, <a target="_blank" href=";mmurlid=63143569"><span style="color: #0000ff">click here.</span></a></p>Conferences & Speaking Engagements09 Mar 2015 00:00:00 -0800 Regulation and Management in California<p>Best Best &amp; Krieger LLP Partner Paeter Garcia is co-chair of Law Seminars International&rsquo;s two-day conference and webcast &ldquo;Groundwater Regulation and Management in California: Updates on Legal and Policy Developments; Practical Tips and Strategies,&rdquo; which will be held March 2-3, 2015 in Sacramento. Paeter, along with BB&amp;K Managing Partner Eric Garner, will also be speaking on panels.</p> <p>California's new Sustainable Groundwater Management Act is perhaps the most significant water law to be passed in the last 100 years. For the first time, California will implement broad reaching regulations over groundwater that will be phased in over the next several years. These new requirements will substantially affect future decisions in the areas of land use, the environment, agriculture and municipal water use, and many other aspects of California life.</p> <p>Join industry experts, leading attorneys and agency officials for a two-day conference regarding the mechanics and implications of the new Act. Topics include statewide perspectives in groundwater management, legal implications of the new laws, practical approaches and requirements for forming Groundwater Sustainability Agencies and developing Groundwater Sustainability Plans, the role of state agencies, funding issues, and practical examples of how real life groundwater disputes are resolved today.</p> <p>This comprehensive conference will provide local government, agricultural, environmental, attorney and consultant interests with a working knowledge of how to plan for the future under the new groundwater legislation.</p> <p><b>What You Will Learn</b></p> <ul type="disc"> <li>Geohydrology science and engineering</li> <li>Existing groundwater law and what AB 3030 changes</li> <li>Development of Groundwater Sustainability Agencies (GSAs) and Plans (GSPs)</li> <li>What to expect in terms of state assistance and involvement</li> <li>Relationship between AB 3030 planning and other planning requirements and processes</li> <li>Financing issues</li> <li>Resolving groundwater disputes: Options when informal methods, such as mediation, fail</li> <li>Contingency planning: What if a plan fails?</li> <li>Case studies of the issues in the most controversial areas</li> </ul> <p><b>BB&amp;K Speakers</b></p> <p>Paeter Garcia: &ldquo;Relationship Between AB 3030 Planning and Other Planning Requirements and Processes&rdquo;<br /> Tuesday, March 3<br /> 8:45 &ndash; 10:15 a.m.</p> <p>Eric Garner: &ldquo;Resolving Groundwater Disputes: Options When Informal Methods, such as Mediation, Fail&rdquo;<br /> Tuesday, March 3<br /> 1:15 &ndash; 2 p.m.</p> <p><i>BB&amp;K is also co-sponsoring the reception for faculty and attendees at 5 p.m. on Monday, March 2.</i></p> <p><b>Where</b><br /> Tsakopoulos Library Galleria<br /> 828 I St.<br /> Sacramento, CA 95814</p> For more information or to register, please visit Law Seminars International by <a target="_blank" href=""><span style="color: #0000ff">clicking here.</span></a>Conferences & Speaking Engagements02 Mar 2015 00:00:00 -0800 Water Law<p>Roderick E. Walston, who is of counsel at Best Best &amp; Krieger, is co-chair of, and a featured panelist at, CLE International&rsquo;s Western Water Law. During this two-day event, experts from around the West and the nation, who are actively shaping the direction of water supply and quality issues, will share their experience and insights into the myriad of complex and legal issues surrounding water in the West.</p> <p>These topics will be addressed:</p> <ul> <li>Perspectives on Federal Water Policy</li> <li>Ethics and Water Law</li> <li>Western Water Law Recap</li> <li>Federal Reserved Water Rights: Overview and Current Status</li> <li>Does the Reserved Rights Doctrine Apply to Groundwater?</li> <li>The Dispute Over the Rio Grande: Texas v. New Mexico</li> <li>California Adopts Groundbreaking Groundwater Legislation</li> <li>Regulation of Groundwater and Surface Water in Arizona</li> <li>How Are Western States Managing Water Supplies</li> <li>Federal Permitting and River Management</li> <li>Climate Change</li> <li>Water and Energy Development in Wyoming</li> <li>Endangered Species Act Issues: Delta Litigation in California</li> <li>Developments on the Clean Water Act</li> </ul> <p>Rod will be speaking on a panel titled &ldquo;Federal Reserved Water Rights&rdquo; on Thursday, Feb. 19, 2015 at 1:45 p.m.</p> <p><strong>When</strong><br /> Thursday, Feb. 19 &ndash; Friday, Feb. 20</p> <p><strong>Where</strong><br /> The Westin San Diego</p> <p>For more information or to register, visit the CLE event page by <a target="_blank" href=";src=Featured&amp;page=Western_Water_Law"><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements19 Feb 2015 00:00:00 -0800 to Changing Water Supplies<p>Best Best &amp; Krieger Partner Joseph P. Byrne, who is also chair of the California Water Commission, is speaking on a panel titled &ldquo;Adapting to Changing Water Supplies&rdquo; during The Seminar Group&rsquo;s one-day event, &ldquo;Preparing for Climate Change &ndash; New Regulations and New Litigation.&rdquo; The panel will include discussions on:</p> <ul> <li>Permitting growth in times of drought</li> <li>Impacts of changing water levels</li> <li>Water rights transfers</li> <li>Water for municipalities</li> <li>Water for agriculture</li> <li>Water for utilities</li> <li>Water System: How it works from a state-wide perspective</li> <li>Drought: What people are doing to deal with it</li> <li>Water Bond</li> <li>Impacts on Development</li> </ul> <p>BB&amp;K Guests can receive $100 off the seminar rate by calling (206) 463-4400 and mentioning the code &ldquo;FAC100.&rdquo;</p> <p><strong>When</strong></p> <p>Wednesday, Feb. 11, 2015<br /> Conference: 9 a.m. &ndash; 5 p.m.<br /> Panel: 1:45 - 2:45 p.m.</p> <p>Where<br /> Le Meridien San Francisco<br /> 333 Battery St.<br /> San Francisco, CA<br /> <br /> <a target="_blank" href="/?t=18&amp;dd=7527"><span style="color: #0000ff">Click here</span></a> to see the conference brochure (.pdf).</p>Conferences & Speaking Engagements11 Feb 2015 00:00:00 -0800 Board Issues Notice of Potential Curtailment of Surface Water Rights Diversions<p>Despite some rainfall and the temporary lifting of certain 2014 surface water curtailment notices during the fall, the drought emergency in California continues. On Jan. 23, the State Water Resource Control Board issued a <a target="_blank" href=""><span style="color: #0000ff">Notice of Surface Water Shortage and Potential for Curtailment of Water Right Diversions</span></a> for the coming year. The Notice warns that, unless precipitation conditions substantially improve, surface water supplies in 2015 will continue to be low. As a result, the State Board expects that curtailment notices may again be issued in the spring or summer, with potential impacts to more than 9,000 water right holders in California.</p> <p>Under California law, the most recent or junior water right holders are required to discontinue diversion in times of water shortage, before more senior, riparian and pre-1914 water right holders have to do so. While the new Notice does not specify when such curtailment notices will be issued to the affected water rights holders, it is expected that the State Board will follow similar procedures as it did in curtailing water diversions in 2014.</p> <p>Prior to issuing diversion curtailments in May 2014, the State Board conducted analyses of the Sacramento-San Joaquin, the Russian River and the Eel River watersheds to determine water supply, demand and availability. Similar analyses were conducted after the 2014 curtailment notices were issued to monitor these watersheds and to determine if and when to lift the curtailments.</p> <p>For the past few months, the State Board has been soliciting <a target="_blank" href=""><span style="color: #0000ff">recommendations</span></a> from the public on how to best implement the water rights priority system in times of drought. State Board staff is expected to present its findings and suggested improvements to the State Board by Jan. 31. It is possible that curtailment procedures may change in 2015 based on the staff recommendations.</p> <p>For more information about how the potential curtailments 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 Alerts27 Jan 2015 00:00:00 -0800 BB&K Attorneys Named to the 2015 Southern California Super Lawyers List<p><b>RIVERSIDE, Calif.</b>&nbsp;- We are pleased to announce that six Best Best &amp; Krieger LLP attorneys were named to the 2015 Southern California Super Lawyers list by <i>Super Lawyers Magazine</i>. Only five percent of Southern California lawyers receive this honor following a selection process that includes independent research, peer nominations and peer evaluations..</p> <p>The attorneys and the categories they were selected in are:</p> <p><a target="_blank" href=";A=1560&amp;format=xml"><span style="color: #0000ff">Scott H. Campbell</span></a> (State, Local and Municipal Law): A municipal lawyer and litigator with extensive trial experience, Scott represents public entities as both general counsel and public works construction counsel. He serves as city attorney for Avalon on Santa Catalina Island and as general counsel for the Lake Arrowhead Community Services District.</p> <p><a target="_blank" href=";A=1563&amp;format=xml"><span style="color: #0000ff">Sonia R. Carvalho</span></a> (State, Local and Municipal Law): Sonia is a municipal lawyer and serves as city attorney for the cities of Santa Ana and Claremont. Sonia&rsquo;s practice focuses on land use, ethics, open government laws and elections law.</p> <p><a target="_blank" href=";A=1586&amp;format=xml"><span style="color: #0000ff">Jeffrey V. Dunn</span></a> (Civil Litigation: Defense): Jeff represents public agencies in complex litigation matters, with an emphasis on municipal land use issues including water rights.</p> <p><a target="_blank" href=";A=1598&amp;format=xml"><font color="#0000ff">Eric L. Garner</font></a> (Environmental): Eric is the managing partner, overseeing the firm&rsquo;s nine offices and nearly 200 attorneys. He is one of the leading authorities on water law and has litigated cases and negotiated key agreements involving major water bodies across the West.</p> <p><a target="_blank" href=";A=1629&amp;format=xml&amp;/Kira%20L.%20Klatchko"><span style="color: #0000ff">Kira L. Klatchko</span></a> (Appellate): Kira handles both state and federal appeals arising from all areas of civil practice for clients as varied as cities, businesses and families. She is chair of the firm&rsquo;s Appellate Practice Litigation group and is an Appellate Law Specialist, certified by the State Bar of California Board of Legal Specialization.</p> <p><a target="_blank" href=";A=1650&amp;format=xml"><span style="color: #0000ff">Michelle Ouellette</span></a> (Environmental): A legal counselor and litigator, Michelle is a leading authority on federal and state endangered species laws, the California Environmental Quality Act and the National Environmental Policy Act. She steered two of the nation&rsquo;s largest habitat conservation plans through a maze of environmental requirements, protecting dozens of endangered species while allowing development to move forward.</p> <p align="center">###</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 nearly 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=""></a></i></span><i><span> or follow @BBKlaw on Twitter.</span></i>Press Releases22 Jan 2015 00:00:00 -0800 BB&K Attorneys in San Diego Included on the 2015 List of San Diego Super Lawyers or Super Lawyers Rising Stars<p><b>SAN DIEGO, Calif.</b> _ We are pleased to announce that five Best Best &amp; Krieger LLP attorneys were named to the 2015 list of San Diego Super Lawyers, while one was selected to the 2015 San Diego Super Lawyers Rising Stars list. Only five percent of San Diego lawyers receive this honor following a selection process that includes independent research, peer nominations and peer evaluations. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent are named to Rising Stars.</p> <p>The attorneys selected are:</p> <p><a target="_blank" href=";A=1551&amp;format=xml&amp;/Bruce%20W.%20Beach"><span style="color: #0000ff">Bruce W. Beach</span></a>: Bruce focuses his practice on eminent domain and property litigation. He has worked on projects for road rights-of-way, pipelines, light rail transit corridors, reservoir sites, as well as redevelopment and flood control projects.</p> <p><a target="_blank" href=";A=1600&amp;format=xml&amp;/James%20B.%20Gilpin"><span style="color: #0000ff">James B. Gilpin</span></a>: Jim practices in civil litigation with an emphasis on real property litigation including eminent domain, construction and other public works litigation. He represents clients in all phases of litigation, including writ proceedings, jury and court trials and appeals.</p> <p><a target="_blank" href=";A=1606&amp;format=xml&amp;/Shawn%20D.%20Hagerty"><span style="color: #0000ff">Shawn D. Hagerty</span></a>: Shawn provides both advisory and litigation services to municipalities in the area of land use and planning, including general plan, zoning, subdivision map act and other land use regulations. He also focuses on water quality regulations as applied to municipalities.</p> <p><a target="_blank" href=";A=1610&amp;format=xml&amp;/Robert%20J.%20Hanna"><span style="color: #0000ff">Robert J. Hanna</span></a>: Robert&rsquo;s practice includes real property, title insurance, business and commercial litigation.</p> <p><a target="_blank" href=";A=1657&amp;format=xml&amp;/Arlene%20%20Prater"><span style="color: #0000ff">Arlene Prater</span></a>: Arlene is managing partner of BB&amp;K&rsquo;s San Diego office. She provides counsel to public and private employers on personnel and labor issues in both litigation and in an advisory role.</p> <p><a target="_blank" href=";A=1748&amp;format=xml&amp;/Steven%20G.%20Martin"><span style="color: #0000ff">Steven G. Martin</span></a> (Rising Star): Steve assists clients with a variety of local governance, transactional and litigation issues, including endangered species, Indian law, water law and environmental review.</p> <p style="text-align: center">###</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 nearly 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=""></a></i></span><i><a target="_blank" href=""></a><span> or follow @BBKlaw on Twitter.</span></i>Press Releases22 Jan 2015 00:00:00 -0800 Water Update<p>A number of conversations are occurring in the U.S. House of Representatives, and between the House and the U.S. Senate (particularly Rep. David Valadao (R-Hanford, Calif.) and Sen. Dianne Feinstein (D.-Calif.)) to reintroduce a version of last year's drought legislation (<a target="_blank" href=""><span style="color: #0000ff">H.R. 5781</span></a>). The key short-term issue is providing flexibility under the Endangered Species Act, the biological opinions for the Delta Smelt and the winter run salmon. This flexibility would take the form of increased pumping at certain times of year. The two biological opinions, respectively on the smelt, from the U.S. Fish and Wildlife Service, and the salmon, from the National Marine Fisheries Service, were litigated, and the U.S. Supreme Court declined to take up the smelt case. The opinions are very prescriptive and severe about when pumping can occur from the Delta for conveyance to the South Bay, Central Coast, Central Valley and Southern California. A specific legislative solution amending the Endangered Species Act or directing how the Act would be applied in certain circumstances is likely to be extremely controversial and challenging to accomplish, so any bill will have to try to work through those constraints.The conversations also include Rep. Ken Calvert (R-Corona, Calif.), who wants to make sure that the stormwater flows can be integrated.</p> <p>One of the difficulties with this new approach is that it targets only California, and does not address any issues that may be problematic for other Western states. Since California only has two senators, despite such a large population, any bill will be difficult in the Senate. A broader bill dealing with other Western issues would be more likely to succeed, since it could gain more support in the Senate. Therefore, other issues may be taken up in the context of this bill, or separately, including facilitating storage projects and expediting permitting processes.This may potentially encompass some of the provisions of the recently introduced &ldquo;<a target="_blank" href=""><span style="color: #0000ff">Water in the 21st Century Act&mdash;H.R 291</span></a>,&rdquo; although the funding would be problematic. Congress could provide some matching funds for state development programs. In fact, it could be that Congress will use this opportunity to develop drought legislation that applies to all Western states, including Texas.</p> <p>All of these issues are being considered by the key players, including the new chairman of the House Natural Resources Committee, Rep. Rob Bishop (R-Utah), and the new chairman of the Senate Energy and Natural Resources Committee, Sen. Lisa Murkowski (R-Alaska). If a larger bill emerges, it could be an opportunity for municipalities and agencies to solve any number of problems, including funding, contracts, permitting and other legislative and regulatory matters.</p> <p>BB&amp;K&rsquo;s Washington D.C. office is following these conversations closely and is available to answer any questions. For more information or to discuss any possible implications for your agency, please contact the author of this legal alert in the firm&rsquo;s <span style="color: #0033ff"><a href=";LPA=2487&amp;format=xml">Government Relations&nbsp;Services</a></span>&nbsp;practice group listed at the right, 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 Alerts15 Jan 2015 00:00:00 -0800 BB&K Attorneys Named Partners<p><b>LOS ANGELES AND WASHINGTON D.C.</b>&nbsp;- Best Best &amp; Krieger LLP promoted two attorneys, the law firm announced today. Andre Monette, who focuses on water law in the firm&rsquo;s Washington, D.C. office, and Gail A. Karish, a telecommunications law attorney in the Los Angeles office, were named the newest partners.</p> <p>&ldquo;Both Andre and Gail representative &nbsp;of the diverse talents and skills BB&amp;K attorneys bring to their clients,&rdquo; said Managing Partner Eric Garner. &ldquo;They are recognized leaders who each have substantial experience in their practice areas, and I know they will be instrumental in the firm&rsquo;s continuing success.&rdquo;</p> <p>Andre works with both public and private clients in matters involving water quality, water rights, wetlands, and state and federal hazardous and solid waste issues. He is a member of the Environmental &amp; Natural Resources practice group. Andre is from San Diego, Calif., and earned his law degree at Case Western Reserve School of Law in Cleveland, Ohio.</p> <p>Gail specializes in federal communications law and assists her clients (principally local governments and municipal utilities) with regulatory and transactional matters involving cable, telecommunications, wireless, and broadband, as well as advocacy before the Federal Communications Commission and state utility commissions. Gail is a member of BB&amp;K&rsquo;s Municipal Law practice group. Gail earned her law degrees from McGill University and York University in her native Canada, and is a member of the California Bar.</p> <p style="text-align: center">###</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><span style="color: #0000ff"><i><a target="_blank" href=""><span style="color: #3366ff"></span></a></i></span><i> or follow @BBKlaw on Twitter.</i></p>Press Releases08 Jan 2015 00:00:00 -0800 Western Riverside County Multiple Species Habitat Conservation Plan: Looking Forward After 10 Years<p>Best Best &amp; Krieger LLP Partner Michelle Ouellette and Charles Landry, the executive director of the Western Riverside County Regional Conservation Authority, co-authored an in-depth analysis of the Western Riverside County Multiple Species Habitat Conservation Plan on its 10th anniversary. The article discusses the Plan&rsquo;s benefits, as well as its implementation impediments and ways the Riverside Conservation Authority over came funding challenges.</p> <p><a target="_blank" href="88E17A/assets/files/Documents/NRE_v29n03_feat10_OuelletteLandry.pdf"><span style="color: #0000ff">Click here </span></a>to see the whole article.</p>BB&K In The News07 Jan 2015 00:00:00 -0800 Associate - Riverside or Irvine<p><span style="font-size: medium"><span style="font-family: Arial">Our Environmental &amp; Natural Resources Group has an immediate opening for an associate with 2-4 years of CEQA experience (both transactional and litigation), as well as land use experience. The attorney can be based in our Riverside or Irvine office; however, if Irvine, he/she must be willing to work out of our Riverside office regularly and as needed.<br /> <br /> </span></span><span style="font-size: medium"><span style="font-family: Arial">Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</span></span></p> <p><a target="_blank" href=";%3db8=8_CG"><span style="font-size: medium"><span style="font-family: Arial"></span></span></a><span style="font-size: medium"><span style="font-family: Arial"><br /> <br /> Please address your cover letter to:</span></span></p> <p><span style="font-size: medium"><span style="font-family: Arial"><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls or emails please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></span></span></p>Job Openings at BB&K06 Jan 2015 00:00:00 -0800 Spurs New Court Rulings, Legislation Governing State Water Rights<p>By Fiona Smith</p> <p>As California ends a third year of drought and prepares to enter a possible fourth dry year, water users and environmentalists have been fighting increasingly high-stakes battles over the scarce resource.</p> <p>Legislation and regulations have been approved while court battles gained new urgency as supplies shrink. This year saw major decisions out of the state and federal courts including how much water can be pumped from the Sacramento San Joaquin River Delta, a major source of drinking water for more than 25 million Californians and the lifeblood for much Central Valley agriculture.</p> <p>&hellip;</p> <p>In January, Gov. Jerry Brown made his first attempt at getting all Californians to conserve water - issuing an official drought declaration as reservoir levels visibly dropped and the Sierra Nevadas had only a thin smattering of snow.</p> <p>As farmers began doubling down on groundwater pumping, concern also grew over the rapid depletion of the state's vast but unseen groundwater aquifers. Brown signed legislation that for the first time imposed state regulations on groundwater pumping.</p> <p>And after several years of attempting to get a water bond on the ballot, the Legislature and the Governor agreed on, and voters approved, a $7.5 billion bond to invest in water infrastructure.</p> <p>&quot;You could argue this is the biggest year ever in California water,&quot; said Eric L. Garner, managing partner with Best Best &amp; Krieger LLP.</p> <p>The drought was the catalyst that led to passage of both the bond and the groundwater regulations, Garner said. And of all the developments this year, he and others steeped in California water issues point to the groundwater law as the most significant.</p> <p>'The law of California groundwater has essentially been, 'Pump until a judge tells you not to,' Garner said. It's a big deal because groundwater is an integral and essential part of our water supply and we need to manage it so it's there when we need it and this legislation is the first step toward doing it.&quot;</p> <p><i>To read the full article in the Daily Journal, which ran Dec. 30, 2014, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a> (subscription required).</i></p>BB&K In The News30 Dec 2014 00:00:00 -0800 Department of Fish and Wildlife Increases CEQA Document Filing Fees<p align="left">The California Department of Fish and Wildlife will increase its filing fees for all CEQA Notices of Determination filed on or after Jan. 1.&nbsp;</p> <p align="left">As was the case in 2014, no DFW fee will be assessed for the filing of Notices of Exemption in 2015. Please note, however, that a local clerk&rsquo;s processing fee may be charged for the filing of any NOD or NOE, depending on local county policy.</p> <p align="center"><b>DFW Fee Schedule<u><br /> </u> <table style="width: 555px; height: 153px" border="1" cellspacing="1" cellpadding="1" width="555"> <tbody> <tr> <td style="text-align: center"><u>NOD Pertains To:</u></td> <td style="text-align: center"><u>2014 Fees</u></td> <td style="text-align: center"><u>Fees Effective January&nbsp;1, 2015</u></td> </tr> <tr> <td style="text-align: center">Negative Declaration or Mitigated Negative Declaration</td> <td style="text-align: center">$2,181.25</td> <td style="text-align: center">$2,210.00</td> </tr> <tr> <td style="text-align: center">Environmental Impact Report</td> <td style="text-align: center">$3,029.75</td> <td style="text-align: center">$3,069.75</td> </tr> <tr> <td style="text-align: center">Environmental Document Pursuant to a Certified Regulatory Program*</td> <td style="text-align: center">$1,030.25</td> <td style="text-align: center">$1,043.75</td> </tr> </tbody> </table> </b>*Including, but not limited to, timber harvesting plans and other state agency regulatory programs.<span style="mso-spacerun: yes">&nbsp; </span>(Public Resources Code, &sect; 21080.5; State CEQA Guidelines, &sect; 15251).</p> <p style="text-align: left">The DFW fee may be charged only once per project. In the event that a project requires the filing of multiple NODs by lead or responsible agencies, the DFW fee is required at the time the lead agency files the first NOD. If a copy of the DFW fee receipt for the filing of the first NOD can be shown, subsequent NODs for the same project will not be charged any additional DFW fees.<br /> <br /> Should you have any questions regarding theses changes, 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>practice group, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>. <o:p></o:p></p> <p style="text-align: left; margin: 0in 0in 0pt; mso-margin-top-alt: auto; mso-margin-bottom-alt: auto" class="MsoNormal"><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> <p style="text-align: justify; margin: 0in 0in 0pt; mso-margin-top-alt: auto; mso-margin-bottom-alt: auto" class="MsoNormal"><o:p></o:p></p>Legal Alerts18 Dec 2014 00:00:00 -0800 Attorneys Successfully Defend City Client from Brown Act and Other Claims<p>In <i>Ontario Mountain Village Association et al v. City of Ontario</i>, Best Best &amp; Krieger LLP attorneys Michelle Ouellette, Richard T. Egger and Sarah Owsowitz successfully defended the legality of an ordinance by the City of Ontario that extended by one-year the expiration dates for all development plans, conditional use permits and variance approvals. The extension was challenged in a lawsuit on the alleged grounds that the City violated the Ralph M. Brown Act and the California Environmental Quality Act (CEQA). The plaintiffs also alleged violation of their due process rights.</p> <p>The lawsuit was filed after the City approved extension of the expiration dates in December 2011 &mdash; as it had done several times previously to support development and economic recovery in the City. The plaintiffs claimed the City violated the Brown Act, which guarantees the public&rsquo;s right to attend and participate in meetings of local legislative bodies, and their due process rights by failing to disclose a legal memorandum. They also alleged the City violated CEQA by not substantiating that the ordinance extending the expiration dates was exempt from environmental review, among other claims.</p> <p>As the trial court had done, the 2nd District Court of Appeal, in an opinion issued Dec. 11, sided with BB&amp;K attorneys and rejected all the plaintiffs&rsquo; claims.</p>Client Successes12 Dec 2014 00:00:00 -0800's New Groundwater Law Seeks to Guide Planning Without Adjudication<p><strong>By Susan Bruninga</strong></p> <p>California's new law establishing a framework for the sustainable management of its groundwater attempts to accomplish what previously had mostly been produced through protracted litigation, a water law attorney said Dec. 4.</p> <p>Moreover, the Groundwater Sustainable Management Act gives local water districts the time and opportunity to develop their own plans through a public process and work toward long-term sustainability without state interference unless their plans fall short, Eric Garner, managing partner with Best, Best &amp; Krieger LLP in Los Angeles, said. Garner, who sits on the advisory board for Water Law &amp; Policy Monitor, spoke at the fall conference of the Association of California Water Agencies.</p> <p>Prior to the act, Garner said, conflicts about groundwater pumping were resolved by a judge.</p> <p>&ldquo;Just sue them all and let a judge sort it out,&rdquo; he said of the approach often used to resolve groundwater conflicts.</p> <p>The new law, he said, provides a generous timeline for establishing a sustainability agency and then developing and implementing a plan to manage groundwater use.</p> <p>Sustainable management of the state's groundwater is important because 80 percent of Californians rely on the resource, he said. Fifteen million acre-feet were pumped last year, and California withdraws more groundwater than the rest of the states combined, he said.</p> <p>As California's population continues to grow from its current 38 million, a more sustainable system for managing withdrawals is critical to ensure the state can meet demand.</p> <i>To read the full article in Bloomberg BNA, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</i>BB&K In The News11 Dec 2014 00:00:00 -0800 2014 Fall Conference & Exhibition<p>BB&amp;K managing partner <b>Eric Garner</b> served as the keynote speaker during the Association of California Water Agencies&rsquo; 2014 Fall Conference. Partner <b>Kelly Salt</b> and Of Counsel<b> Joseph </b><strong>Byrne</strong> participated on two separate panels discussing recycled water rates and water storage in California.</p> <p><b>BB&amp;K Speakers</b></p> <p>Eric Garner delivered the keynote address on &ldquo;Groundwater Legislation: History in the Making or Another Dead End?&rdquo; from <b>11:45 a.m. &ndash; 1:15 p.m. on Thursday, Dec. 4</b>. Eric explored the impact the passing of the historic California groundwater legislation will have on water management and how to put this vital issue into a practical and historical perspective.</p> <p>Kelly Salt appeared as a panelist discussing &ldquo;Fairness and Equity in Recycled Water Rates&rdquo; from <b>2 -3:15 p.m. on Wednesday, Dec. 3</b>. The panel discussed the various options available for public agencies for developing fair and equitable recycled water rates, and the impacts of Proposition 218 on implementing such rates.</p> <p>Joseph Byrne sat on the Statewide Issue Forum &ldquo;Making Every Drop Count: The Future of Water Storage in California&rdquo; from <b>3:45 &ndash; 5 p.m. on Wednesday, December 3</b>. The forum discussed new storage projects and how the state can make sure these projects maximize available resources.</p> <p><b>When:</b><br /> Tuesday, Dec. 2 - Thursday, &nbsp;Dec. 4</p> <p><b>Where: </b><br /> Manchester Grand Hyatt Hotel<br /> 1 Market Place<br /> San Diego, CA 92101</p>Conferences & Speaking Engagements02 Dec 2014 00:00:00 -0800 of Truth: One State, One Water Future<p>BB&amp;K Partner Eric Garner&nbsp;was the keynote speaker and Partner Kelly Salt&nbsp;was a panelist at the Association of California Water Agencies 2014 Fall Conference &amp; Exhibition Dec. 2-5.</p> <p>Kelly discussed &quot;Fairness and Equity in Recycled Water Rates&quot; on Wed., Dec. 3, from 2 - 3:15 p.m.</p> <p>Eric presented &quot;Groundwater Legislation: History in the Making or Another Dead End?&quot; at the luncheon on Thurs., Dec. 4, from 11:45 a.m. - 1:15 p.m. Statewide regulation of groundwater is one of the most important &ndash; and controversial &ndash; challenges facing this generation of water managers. That&rsquo;s why the groundwater legislation passed this year is so important, whether you were for it or not. This once-in-a-century statute will change how water is managed in California.</p> For more information, visit the ACWA event page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.Conferences & Speaking Engagements02 Dec 2014 00:00:00 -0800 100 Law Firms with the Most Environmental Partners<p>Best Best &amp; Krieger ranked No. 32 on <i>Law360&rsquo;s</i> list of The 100 Law Firms with the Most Environmental Partners with 15 environmental partners. The list is for U.S.-based firms with partners who practice globally. <br /> <br /> The rankings were determined by the number of partners based on a survey of 300 U.S.-based law firms, including 198 of the largest 200 firms in the country. The partners have to spend at least 75 percent of their time on matters related to environmental law practice.</p> To see the full list on <i>Law360</i>, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.BB&K In The News01 Dec 2014 00:00:00 -0800, Pendulum, Swing: California's Historic Drought and Unprecedented Responses<p style="text-align: left"><b><u>Introduction</u></b></p> <p style="text-align: left">Most know by now that California is facing one of its driest years in recorded history. Yet droughts are not new to California, and to put things in context we can be thankful that current drought conditions are only as bad as they are.&nbsp;The &ldquo;dustbowl drought&rdquo; of the 1920s and 1930s nearly crippled the state. And even that could have been worse: tree-ring data show that centuries ago California and other western states were gripped by mega-droughts spanning 20 to 50 years.</p> <p style="text-align: left">Water is said to be our most critical natural resource (try going without it for a couple days).&nbsp;Ironically, however, it is something most Californians have taken for granted.&nbsp;But that dynamic is now beginning to change.&nbsp;Water education is catching up and catching on, and the conundrum we face with increasing demand and shrinking supply is practically impossible to ignore.&nbsp;Recent projections show the statewide population growing by almost 10 million over the next 20 years, to a total of 45 million.&nbsp;But the supply curve is going the other way.&nbsp;Over the last 10 years, various legal and regulatory decisions have substantially decreased the amount of water available from the State&rsquo;s largest water supply projects, the State Water Project (SWP), the federal Central Valley Project (CVP), and the Colorado River.</p> <p style="text-align: left">The SWP and CVP combined deliver water to more than 25 million people throughout California and to millions of acres of prime farmland in the Central and San Joaquin Valleys.&nbsp;Both projects require moving water through the Sacramento-San Joaquin Delta (the Delta), which has been subject to an increasing set of operating and delivery restrictions to protect in-Delta water users, water quality, and rare and endangered fish species in the Delta. &nbsp;Recent restrictions have resulted from biological opinions issued under the federal Endangered Species Act by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to protect Delta smelt and anadromous salmon. &nbsp;Delta water supplies are now also the subject of various state and federal court litigation.&nbsp;Supplies from the Colorado River are facing similar pressures. &nbsp;California shares the Colorado River with other states whose reliance on the system has increased as their populations have grown.&nbsp;Whereas California used to rely on &ldquo;surplus&rdquo; water from the Colorado, that surplus is gone, and the state must now live within its annual allotment of 4.4 million acre-feet per year.&nbsp;The Quantification Settlement Agreement (QSA), California&rsquo;s plan for the allocation, transfer, use, and conservation of its share of Colorado River water, was attacked through state and federal litigation for over a decade.&nbsp;Fortunately, the QSA withstood challenge, but the availability and reliability of Colorado River supplies continue to decline as problems relating to climate change, water quality, endangered species, and legal issues become more prevalent.</p> <p style="text-align: left">Add multi-year drought conditions to the equation, and suddenly everyone is talking about water.&nbsp;And for good reason.&nbsp;The winter and spring seasons of 2012-2013 were below normal and many knew &ldquo;things were going to get bad in California&rdquo; if the state did not have good rain and snowfall numbers in late 2013.&nbsp;But the rain and snow did not come.&nbsp;Indeed, the numbers were so dismally low that the California Department of Water Resources (DWR) has declared the 2013-2014 period as the driest year in recorded history.&nbsp;In early 2014, a zero percent allocation was initially declared for the SWP, and the final allocation was bumped to a mere five percent.&nbsp;Vast portions of the CVP will go entirely without deliveries this year.&nbsp;As of early September, Lake Oroville (the largest SWP reservoir) was at 31 percent of capacity and Lake Shasta (the largest CVP reservoir) was at 28 percent of capacity.&nbsp;The San Luis Reservoir, a key south-of-Delta supply and regulating pool for the SWP and CVP, holds only 19 percent of capacity.</p> <p style="text-align: left">Throughout the state, many watersheds and surface water supplies are much drier than normal.&nbsp;Some areas are badly parched and others are literally out of water.&nbsp;In response, the State Water Resources Control Board (State Board) has taken regulatory action to limit diversions from certain river systems.&nbsp;And with less surface water available, many local agencies, businesses, and individuals are ramping up production from already strained or overdrafted groundwater supplies.&nbsp;For those who rely on groundwater, some have reached the bottom of the well, and there is nothing left to pump.&nbsp;This in turn has brought sweeping legislative reform to California&rsquo;s groundwater management laws.&nbsp;In addition, the drought has prompted aggressive state action to promote recycled water use and increase water conservation.</p> <p style="text-align: left">Current drought conditions have brought California to a crossroads.&nbsp;While opinions vary on which way to go, most agree that clear direction is needed. &nbsp;Big steps are being taken already, thrusting key legal and policy issues into the spotlight.</p> <p style="text-align: left"><b><u>The Governor&rsquo;s Declaration and Proclamation of Drought Emergency</u></b></p> <p style="text-align: left">On January 17, 2014, Governor Jerry Brown declared a state of drought emergency (the Declaration) in response to record low water levels in California&rsquo;s rivers and reservoirs and an abnormally low snowpack.&nbsp;The Declaration took several extraordinary steps, including the following:</p> <ul> <li style="text-align: left">Directed local urban water suppliers and municipalities to immediately implement local water shortage contingency plans and update urban and agricultural water management plans;</li> <li style="text-align: left">Required DWR to undertake a statewide water conservation program to encourage Californians to reduce water use by 20 percent;</li> <li style="text-align: left">Directed the State Board to expedite the processing of water transfers to enable the efficient use of water;</li> <li style="text-align: left">Instructed DWR and the State Board to accelerate funding for water supply enhancement projects that are capable of breaking ground this year;</li> <li style="text-align: left">Directed the State Board to place state water right holders on notice that they may be required to cease or reduce water diversions;</li> <li style="text-align: left">Required DWR to evaluate changing groundwater levels, land subsidence, and agricultural land fallowing as the drought persists and to provide a public update by April 30, 2014, to identify groundwater basins with water shortages;</li> <li style="text-align: left">Directed the California Department of Food and Agriculture to connect farmers to state and federal programs for assistance during the drought; and</li> <li style="text-align: left">Required the Governor&rsquo;s Drought Task Force to develop a plan to provide emergency food, financial assistance, and unemployment services in communities expected to suffer high levels of unemployment as a result of the drought.</li> </ul> <p style="text-align: left">The Governor&rsquo;s Declaration also exempted the state from compliance with aspects of water quality plans and the California Environmental Quality Act (CEQA) when undertaking certain actions necessary to make water immediately available during the drought.&nbsp;For example, the Declaration suspends CEQA from applying to the State Board&rsquo;s approval of petitions requesting water transfers and exchanges between users within the SWP and CVP.&nbsp;It also suspends CEQA from applying to State Board decisions to modify reservoir release requirements or diversion limitations in place to implement a water quality control plan.</p> <p style="text-align: left">On April 25, 2014, the Governor issued a Proclamation of a Continued State of Emergency (the Proclamation) due to persisting record-low water conditions and in anticipation of extended dry months throughout the summer.&nbsp;The Proclamation builds upon the January drought Declaration, and strengthens the state&rsquo;s ability to effectively manage water resources while calling on all Californians to redouble their efforts to conserve water.&nbsp;The Proclamation moved beyond the Declaration by further waiving CEQA compliance for certain actions taken by state agencies. Specifically, the Proclamation suspends CEQA to allow the following:</p> <ul> <li style="text-align: left">Processing of DWR and/or State Board requests to transfer water to areas of need;</li> <li style="text-align: left">Implementation of water reduction plans to reduce potable water usage for outdoor irrigation at recreational facilities and large institutional complexes;</li> <li style="text-align: left">Immediate monitoring of endangered species (such as the Sacramento River&rsquo;s winter-run Chinook salmon) by the Department of Fish and Wildlife;</li> <li style="text-align: left">Implementation of projects by DWR to benefit fish and wildlife impacted by the drought, including certain projects in priority watersheds designed to protect threatened and endangered species;</li> <li style="text-align: left">Implementation of pump-back water deliveries by DWR through SWP facilities on behalf of water districts;</li> <li style="text-align: left">Adoption of statewide general waste discharge requirements by the State Board to facilitate the use of recycled water and reduce demand on potable supplies;</li> <li style="text-align: left">Provision of DWR and State Board assistance to public agencies and private water companies to establish temporary water supply connections;</li> <li style="text-align: left">Implementation of an agricultural assistance program by the California Department of Food and Agriculture; and</li> <li style="text-align: left">Adoption of emergency regulations by the State Board relating to water conservation.</li> </ul> <p style="text-align: left">In addition, the Proclamation suspends CEQA for local agency actions necessary to implement measures recommended by the Department of Public Health to abate acute drinking water shortages, subject to certain conditions.&nbsp;The Proclamation also requires the State Board to direct any urban water suppliers that are not already implementing drought response plans to limit outdoor irrigation and other wasteful water practices, and to request an update from urban water suppliers on the effectiveness of their current actions to reduce water usage.</p> <p style="text-align: left"><b><u>The Groundwater Puzzle</u></b></p> <p style="text-align: left">Although California enacted a statewide surface water law in 1914 requiring permits for appropriative surface water diversions and use, the state has never broadly regulated groundwater.&nbsp;This is unusual because nearly all other states have some form of statewide groundwater regulation.&nbsp;The drought has forced many water users to seek alternative supplies, and in many parts of the state this has involved pumping more native groundwater, or using more water previously stored in a regional or local groundwater banking program. &nbsp;Yet increased production from a basin and/or multiple &ldquo;calls&rdquo; from a groundwater bank can lead to rapid groundwater level declines, competing demands for pumping and conveyance capacity, and water quality concerns. &nbsp;These issues, particularly without an enforceable management structure, can spark disputes between and among landowners, water providers, and other public agencies.</p> <p style="text-align: left">Several features of California groundwater law have contributed to the problem.&nbsp;First, landowner based rights to groundwater (overlying rights) are correlative, meaning in theory that each has a shared priority to make reasonable and beneficial use of the safe yield.&nbsp;However, because correlative rights are unquantified and any needed reductions are based on a standard of reasonableness that varies with the facts and circumstances of each basin, they create great uncertainty among landowners as to which pumpers will need to cut back and how much they will need to cut back when supplies are not sufficient to meet the collective demand.&nbsp;Furthermore, the threat of prescription pits overlying rights against non-overlying rights, such as those held by cities and other public water purveyors.&nbsp;This fosters a system where there is little information on pumping, it is unclear who has to cut back in a shortage, and thus pumpers have an incentive to keep pumping to protect their rights.&nbsp;Often these conditions can lead to overdraft and the many undesirable effects that result from overdraft.&nbsp;Ultimately, litigation is the only way to sort this out.&nbsp;While groundwater adjudications can have the positive effect of providing certainty and an efficient and effective management structure, they are very expensive and typically take a decade or more to resolve.</p> <p style="text-align: left">In early March 2014, the Governor&rsquo;s Office of Planning &amp; Research (OPR) sought stakeholder input on actions to improve groundwater management in California, consistent with the Governor&rsquo;s January 27 California Water Action Plan (Action Plan). &nbsp;A major objective of the Action Plan is to establish a legal framework to expand groundwater storage capacity and improve groundwater management. &nbsp;The Action Plan calls for state legislation to provide local and regional agencies with comprehensive groundwater management authority, and proposes allowing the state to temporarily assume groundwater management responsibility if local agencies fail to achieve &ldquo;sustainable management.&rdquo;&nbsp;OPR initiated a public process and sought written comments on a wide variety of questions relating to the Action Plan and a new approach for statewide groundwater management.</p> <p style="text-align: left">In March and April, OPR organized sustainable groundwater management workshops in Sacramento, facilitated by the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Natural Resources Agency.&nbsp;The workshops were attended by a diverse group of water leaders from the legislature, state and local government, agribusiness, water associations, and other interests. The discussions focused on (1) the potential definition of &ldquo;sustainable groundwater management,&rdquo; and how to measure progress and success in that arena; (2) tools, authorities, and incentives to help local agencies manage groundwater; (3) key funding mechanisms, barriers, and solutions; and (4) the state&rsquo;s role in assisting local agencies with groundwater management.&nbsp;In response to OPR&rsquo;s request for written comments,&nbsp;position papers were submitted by the Association of California Water Agencies, California Water Foundation, National Heritage Institute, Planning and Conservation League, Valley Agricultural Water Coalition, and others.</p> <p style="text-align: left">Soon after the close of the OPR workshop and comment process, on April 30, 2014, DWR released a report concluding that groundwater levels throughout the state had reached all-time historic lows and that many areas lacked adequate groundwater monitoring.&nbsp;The key conclusions of DWR&rsquo;s report were as follows:</p> <p style="text-align: left">1.&nbsp;&nbsp;Groundwater levels throughout the state have reached all-time historic lows.</p> <ul> <li style="text-align: left">Groundwater levels have decreased statewide since spring 2013;</li> <li style="text-align: left">Groundwater levels have decreased even more significantly since spring 2010;</li> <li style="text-align: left">Groundwater levels have dropped most significantly in the San Francisco Bay Hydrologic Region, the South Lahontan and South Coast areas, and the San Joaquin Valley;</li> <li style="text-align: left">Nevada, Placer and El Dorado counties have the greatest concentration of well deepening activity;</li> <li style="text-align: left">Thirty-six alluvial groundwater basins in the state serve as the primary water source for their regions and are most likely to incur drought-related shortages; these basins are in the North Coast, Central Coast, Sacramento River, Tulare Lake, and South Coast regions and serve a total population of about 6.18 million.</li> </ul> <p style="text-align: left">2.&nbsp; Areas throughout the state lack adequate groundwater monitoring.</p> <ul> <li style="text-align: left">Groundwater monitoring is critical for maintaining the health of basins, especially in drought conditions;</li> <li style="text-align: left">Only 169 out of 515 alluvial groundwater basins in the state are fully or partially monitored under the California Statewide Groundwater Elevation Monitoring (CASGEM) program;</li> <li style="text-align: left">Of the 126 high and medium priority groundwater basins, 40 are not monitored under CASGEM;</li> <li style="text-align: left">Some basins are partially monitored but have data gaps;</li> <li style="text-align: left">The lack of monitoring and absence of groundwater management plans subject these basins to increased stress under drought conditions.</li> </ul> <p style="text-align: left">The DWR report analyzed data from the CASGEM program, the Water Data Library, the draft Bulletin 160 California Water Plan Update 2013, and well drillers&rsquo; logs submitted to DWR. &nbsp;The report also notes that DWR is working with NASA and NOAA to evaluate land subsidence and agricultural land fallowing using satellite monitoring.&nbsp;DWR is required to issue a follow-up report by November 30, 2014, which will address areas where the drought has had significant impacts on groundwater resources.</p> <p style="text-align: left"><b><u>California Groundwater Legislation &ndash; Baby Steps to Full Sprint</u></b></p> <p style="text-align: left">As part of the November 2009 extraordinary legislative session, a new water law was enacted (SBX7-6, Water Code 10920 et seq.) which created the California Statewide Groundwater Elevation Monitoring (CASGEM) program.&nbsp;For the first time in state history, SBX7-6 established a requirement for local monitoring agencies to coordinate with DWR to collect and report groundwater elevation data that must be made available to the public.&nbsp;If local agencies do not volunteer or if they otherwise fail to perform the groundwater monitoring functions, DWR is authorized to assume those functions and the local agencies become ineligible for water grants or loans from the state.&nbsp;Many considered SBX7-6 to be the first &ldquo;baby step&rdquo; in what <i>some day</i> might lead to <i>some form</i> of a statewide groundwater management program.&nbsp;Yet few believed the baby would be sprinting like an NFL wide receiver in just a couple of years.</p> <p style="text-align: left">In Spring 2014, around the time OPR was conducting its public workshop and comment process discussed above, two bills swept into the legislative process that proposed to change California groundwater law as we have known it for the last 100 years. &nbsp;Senate Bill 1168 (Pavley; D-Agoura Hills) and Assembly Bill 1739 (Dickinson; D-Sacramento) would require local agencies to develop groundwater sustainability plans and create new enforcement tools for managing groundwater resources.&nbsp;SB 1168 and AB 1739 conveyed the same message:&nbsp;the state&rsquo;s current groundwater management system is broken.</p> <p style="text-align: left">In late August, after various amendments, and a last minute gut-and-amend to Senate Bill 1319 (Pavley, D-Agoura Hills), the Legislature passed SB 1168, AB 1739, and SB 1319 as a package to establish the Sustainable Groundwater Management Act.&nbsp;The legislation was signed by the Governor on September 16, 2014.</p> <p style="text-align: left"><b><u>Summary and Key Components of the Sustainable Groundwater Management Act</u></b></p> <p style="text-align: left">The Sustainable Groundwater Management Act (the Act) declares that groundwater is a critical natural resource for the state and must be sustainably managed.&nbsp;The Act defines &ldquo;sustainable groundwater management&rdquo; as the management and use of groundwater in a manner that can be maintained during a 50-year planning and implementation horizon without causing &ldquo;undesirable results,&rdquo; such as &ldquo;significant and unreasonable&rdquo; lowering of water levels, reduction in storage capacity, seawater intrusion, degraded water quality, land subsidence, or depletions of interconnected surface water.&nbsp;The Act also states that sustainable management best occurs at the local level, but provides authority for state management when local agencies are unwilling or unable to implement the new requirements.&nbsp;For purposes of the Act, groundwater does not include subsurface water that flows in known and definite channels, which in large part is already subject to the permitting jurisdiction of the State Board.</p> <p style="text-align: left"><u>Application</u></p> <p style="text-align: left">The Act requires DWR to categorize each groundwater basin in the state, as identified and defined in DWR&rsquo;s Bulletin 118, as high, medium, low, or very low priority by January 31, 2015.&nbsp;All basins designated as high or medium priority <i>and</i> also designated in Bulletin 118 as being subject to critical conditions of overdraft must be managed under a groundwater sustainability plan or plans in accordance with the Act by January 31, 2020.&nbsp;All basins designated as high or medium priority <i>but not</i> also designated in Bulletin 118 as being subject to critical conditions of overdraft must be managed under the Act by January 31, 2022.&nbsp;Basins designated by DWR as low and very low priority are not subject to the requirements of the Act, but are &ldquo;encouraged&rdquo; to be managed under groundwater sustainability plans.&nbsp;</p> <p style="text-align: left">Certain adjudicated areas, and local agencies that conform to the requirements of those adjudications, are expressly exempt from the Act, subject to ongoing reporting requirements. &nbsp;To the extent authorized under federal or tribal law, the Act applies to Indian tribes and the federal government, but the Act provides that federally reserved water rights to groundwater &ldquo;shall be respected in full.&rdquo;&nbsp;The Act authorizes a groundwater sustainability agency to regulate, limit or suspend groundwater extractions from individual wells, but it does not authorize such agencies to make a binding determination of the water rights of any person or entity.</p> <p style="text-align: left"><u>Establishment of Groundwater Sustainability Agencies</u></p> <p style="text-align: left">The Act authorizes any local agency or a combination of local agencies overlying a basin to become a groundwater sustainability agency for that basin.&nbsp;A local agency is defined as a public agency having water supply, water management or land use responsibilities within the basin.&nbsp;Where a combination of local agencies seeks to form a single groundwater sustainability agency, it must be done pursuant to a joint powers agreement or other legal agreement.&nbsp;A water corporation regulated by the California Public Utilities Commission may participate in a groundwater sustainability agency formed by a combination of local agencies, but the local agencies must agree.&nbsp;For some areas of the state, specific agencies that already have been created by statute to manage groundwater are deemed by the Act to be the exclusive groundwater sustainability agencies within their respective boundaries, although such agencies may opt out of that role by providing notice to DWR.&nbsp;In that case, any other local agency or agencies may notify DWR of an election to be the groundwater sustainability agency in accordance with required procedures.</p> <p style="text-align: left">Any local agency or agencies electing to be a groundwater sustainability agency must first hold a noticed public hearing in the county or counties overlying the basin, and must submit a notice of intent to DWR describing the proposed boundaries of the basin (or portion thereof) that the agency or combination of agencies intends to manage.&nbsp;Within 30 days of electing to be or forming a groundwater sustainability agency, the agency must notify DWR, and provide a list of &ldquo;interested persons&rdquo; and an explanation of how their interests will be considered in the development and implementation of the agency&rsquo;s sustainability plan.&nbsp;Under the Act, interested persons include:&nbsp;agricultural water users; domestic well owners; municipal well owners; public water systems; local land use planning agencies; environmental users of groundwater; users of surface water with a hydrologic connection to groundwater; federal agencies; affected California Native American Tribes; disadvantaged communities; and entities monitoring and reporting groundwater elevations under the CASGEM program.</p> <p style="text-align: left"><u>Basin Coverage Under Groundwater Sustainability Plans</u></p> <p style="text-align: left">The Act identifies a clear legislative intent that the entirety of each high and medium priority groundwater basin must be covered by one or more groundwater sustainability plans. &nbsp;In other words, there can be no &ldquo;dead zones&rdquo; or unmanaged areas.&nbsp;In this regard the Act provides that a basin plan may be: (1) a single plan covering the entire basin developed and implemented by one groundwater sustainability agency; (2) a single plan covering the entire basin developed and implemented by multiple groundwater sustainability agencies; or (3) multiple plans implemented by multiple groundwater sustainability agencies and coordinated pursuant to a single coordination agreement that covers the entire basin.&nbsp;If multiple coordinated plans are prepared to cover a basin, the groundwater sustainability agencies must ensure that the plans utilize the same data and methodologies for developing assumptions regarding groundwater elevations, groundwater extractions, surface water supplies, total water use, changes in groundwater storage, water budget, and sustainable yield.</p> <p style="text-align: left">The Act mandates that in less than three years&mdash;by June 30, 2017&mdash;every portion of a high or medium priority basin must be covered by the boundaries of at least one groundwater sustainability agency.&nbsp;If an area within a basin is not within the management area of a groundwater sustainability agency, the county within which the unmanaged area lies is presumed to be the sustainability agency for that area, unless the county opts out of that role by notifying DWR.&nbsp;If an entire basin is not covered by one or more groundwater sustainable agencies by the June 30, 2017 deadline, groundwater extractions in that area become subject to specific reporting requirements, and the State Board may designate the basin as a &ldquo;probationary basin&rdquo; and step in to adopt an interim plan for the basin.</p> <p style="text-align: left"><u>Contents of Groundwater Sustainability Plans</u></p> <p style="text-align: left">Groundwater sustainability plans must include the following components:</p> <ul> <li style="text-align: left">The physical setting and characteristics of the aquifer system underlying the basin;</li> <li style="text-align: left">Measurable objectives, and interim milestones in five-year increments to achieve the sustainability goal in the basin within 20 years of implementation;</li> <li style="text-align: left">A planning and implementation horizon, defined by the Act as a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure it is operated within its sustainable yield;</li> <li style="text-align: left">Components relating to the monitoring and management of groundwater levels; groundwater quality, inelastic land surface subsidence, and changes in surface flow and surface water quality that directly affect groundwater levels or quality or are caused by groundwater extraction in the basin; mitigation of overdraft; how recharge areas contribute to basin replenishment; and surface water supplies used or available for groundwater recharge or in lieu use;</li> <li style="text-align: left">A summary of monitoring sites, type of measurements, and frequency of monitoring various factors;</li> <li style="text-align: left">Monitoring protocols designed to detect changes in groundwater levels, groundwater quality, inelastic surface subsidence, and flow and quality of surface waters that directly affect groundwater levels or quality or are caused by groundwater extractions in the basin; and</li> <li style="text-align: left">A description of how applicable county and city general plans have been considered and a description of the various adopted water resource-related plans and programs within the basin and an assessment of how the groundwater sustainability plan may affect such other plans and programs.</li> </ul> <p style="text-align: left">In addition, groundwater sustainability plans shall include basin-specific measures where appropriate, such as:</p> <ul> <li style="text-align: left">Control of saline water intrusion;</li> <li style="text-align: left">Wellhead protection and recharge areas;</li> <li style="text-align: left">Migration of contaminated groundwater;</li> <li style="text-align: left">Well construction, abandonment and destruction programs and policies;</li> <li style="text-align: left">Activities and opportunities for conjunctive use;</li> <li style="text-align: left">Measures addressing cleanup of groundwater contamination, groundwater recharge, diversions to storage, conservation, water recycling, conveyance, and extraction projects;</li> <li style="text-align: left">Efficient water management practices;</li> <li style="text-align: left">Efforts to develop relationships with state and federal regulatory agencies;</li> <li style="text-align: left">Processes to review land use plans and efforts to coordinate with land use planning agencies to assess activities that potentially create risks to groundwater quality or quantity; and</li> <li style="text-align: left">Impacts to groundwater dependent ecosystems.</li> </ul> <p style="text-align: left"><u>Adoption of Groundwater Sustainability Plans and DWR Review</u></p> <p style="text-align: left">Prior to initiating the development of a groundwater sustainability plan, the sustainability agency or agencies must notify the public, DWR, and any city or county located within the area to be covered by the plan about how interested parties may participate in the plan&rsquo;s development and implementation.&nbsp;The sustainability agency must also encourage the active involvement of diverse social, cultural, and economic communities within the groundwater basin prior to and during the development and implementation of the plan.</p> <p style="text-align: left">A groundwater sustainability plan may only be adopted after a public hearing held at least 90 days after notice was provided to any city or county within the area affected by a groundwater sustainability plan.&nbsp;Upon adoption of a plan, the groundwater sustainability agency must submit the plan to DWR for review.&nbsp;DWR must post the plan on its website and provide a 60-day public comment period.&nbsp;In addition, DWR must evaluate and issue an assessment of the plan within two years of submission and may include corrective actions to any perceived deficiencies in the plan.&nbsp;The Act also allows an adopting agency to file a validation action on its plan 180 days after the plan is adopted.</p> <p style="text-align: left"><u>Alternatives to Groundwater Sustainability Plans</u></p> <p style="text-align: left">The Act provides local agencies with alternatives to preparing a new groundwater sustainability plan, but the options are limited to:</p> <ul> <li style="text-align: left">A groundwater management plan prepared in accordance with Water Code 10750 et seq. (AB 3030) or other law authorizing groundwater management;</li> <li style="text-align: left">Management pursuant to an adjudicated action; or</li> <li style="text-align: left">A professional analysis of basin conditions that shows the basin has operated with sustainable yield for a period of at least 10 years.</li> </ul> <p style="text-align: left">An alternative plan must be submitted to DWR no later than January 1, 2017 for an assessment and evaluation by DWR to determine if the alternative satisfies the objectives of the Act.</p> <p style="text-align: left"><u>Powers of Groundwater Sustainability Agencies</u></p> <p style="text-align: left">Groundwater sustainability agencies that adopt sustainability plans will have broad new powers and authorities.&nbsp;The agencies &ldquo;may do anything necessary or proper&rdquo; to carry out the purposes of the Act, which includes the authority to:</p> <ul> <li style="text-align: left">Adopt rules, regulations, ordinances, and resolutions;</li> <li style="text-align: left">Conduct investigations to determine the need for groundwater management, including investigations of surface waters, groundwater, and surface and groundwater rights, and inspections of property or facilities by consent or through an inspection warrant;</li> <li style="text-align: left">Propose, update, and impose fees, and levy groundwater charges;</li> <li style="text-align: left">Require registration of and impose requirements on wells and other groundwater extraction facilities;</li> <li style="text-align: left">Require water measuring devices (i.e., meters) on all groundwater wells within the agency&rsquo;s boundaries;</li> <li style="text-align: left">Acquire, use, and dispose of real and personal property, such as land, rights-of-way, water rights, structures and infrastructure;</li> <li style="text-align: left">Import surface and/or groundwater into the agency, conserve and store water within or outside the agency, and purchase, transfer, deliver or exchange water or water rights of any type with any person to carry out any purposes of the Act;</li> <li style="text-align: left">Transport, reclaim, purify, desalinate, treat, or otherwise manage and control polluted water, wastewater, or other waters for subsequent use;</li> <li style="text-align: left">Control groundwater extractions by regulating, limiting, or suspending extractions from individual groundwater wells or wells in the aggregate;</li> <li style="text-align: left">Authorize temporary and permanent transfers of groundwater extraction allocations within the agency boundaries; and<br /> Enforce violations of the Act or agency rules, regulations, ordinances or resolutions, including the ability to impose civil penalties and bring legal actions.</li> <li style="text-align: left">The Act also provides groundwater sustainability agencies with broad financial powers.&nbsp;For example, sustainable agencies will be authorized to impose a wide variety of fees covering matters such as: permitting; groundwater extractions; preparation, adoption, and amendment of groundwater sustainability plans; investigations; inspections; compliance; enforcement; program administration; reserves; acquisition of lands or other property, facilities or services; and water supply, production, treatment or distribution.</li> </ul> <p style="text-align: left"><u>State Intervention</u></p> <p style="text-align: left">While the Act clearly acknowledges that sustainable groundwater management occurs best at the local level, if local agencies are either unwilling or unable to implement the new requirements of the Act, the state may step in.&nbsp;To this end, the Act provides the State Board with broad discretion to determine that a high or medium priority basin should be designated as a &ldquo;probationary basin&rdquo; and thereby trigger State Board management authority.&nbsp;When state action is required, the Act provides various mechanisms to return local control whenever feasible.</p> <p style="text-align: left"><u>CEQA Implications</u></p> <p style="text-align: left">The Act provides that the preparation and adoption of groundwater sustainability plans is exempt from CEQA, but any project that would implement actions taken pursuant to an adopted plan are <i>not</i> exempt from CEQA.</p> <p style="text-align: left"><b><u>Issues Unresolved by the New Act</u></b></p> <p style="text-align: left">The Sustainable Groundwater Management Act will influence and affect other areas of California water law and policy.&nbsp;One key area is the legal intersection of water rights, water supply planning, and land use decision making.&nbsp;The drought creates legal, practical, and policy issues for land use planning. With the economy improving and entitlements and permitting on the rise, developers are seeking to demonstrate that they have sufficient water supplies for new construction. &nbsp;Various documents and analyses, prepared under various laws, are used to show water supply sufficiency for new projects. &nbsp;Examples include Urban Water Management Plans, Water Supply Assessments, Written Verifications, and water supply analyses under CEQA&mdash;all of which can be lightning rods for challenges to proposed development. &nbsp;These analyses generally address whether sufficient water supplies will be available to serve the proposed development and other existing and planned future uses over a 20-year projection during normal, single-dry and multiple dry periods, and whether the uses of surface water, groundwater, and other supplies identified to serve a project are likely to have a significant environmental impact on water resources. &nbsp;Drought conditions typically widen the divide between water resources and development, and often complicate a developer&rsquo;s ability to demonstrate water supply sufficiency under applicable legal standards.</p> <p style="text-align: left">The Act seeks to address this relationship.&nbsp;Yet, whether by design or oversight, the Act only scratches the surface of the inevitable overlap of a &ldquo;groundwater sustainability plan,&rdquo; other water supply sufficiency determinations, and the land use decision-making process.</p> <p style="text-align: left">Current general planning laws declare the importance of having close coordination and consultation between water supply agencies and land use approval agencies to ensure proper water supply planning for projects resulting in increased water demands.&nbsp;(Govt. Code &sect; 65352.5(a)-(b).)&nbsp;For the most part, this coordination process is found in the requirement that a city or county, prior to adopting or substantially amending its general plan, must refer the proposed action to the public water system that serves water to customers within the area covered by the proposal.&nbsp;(Govt. Code &sect; 65352(a)(7).)&nbsp;In turn, the public water system is required to submit the current versions of its Urban Water Management Plan (UWMP), Capital Improvement Plan, and other water-related information to the city or county, including:</p> <ul> <li style="text-align: left">A description of the source(s) of the total water supply currently available to the water provider by water right or contract, taking into account historical data concerning wet, normal, and dry runoff years;</li> <li style="text-align: left">A description of the quantities of surface water and groundwater purveyed by the water provider in each of the previous five years;</li> <li style="text-align: left">A description of all proposed additional sources of water for the water provider, including the estimated quantities and dates by which those additional supplies are expected;</li> <li style="text-align: left">A description of the total number of customers currently served by the water provider according to different categories of water users;</li> <li style="text-align: left">A quantification of the water provider&rsquo;s expected reduction in total water demand for each category of water customer associated with future implementation of water use reduction measures identified in the provider&rsquo;s UWMP; and</li> <li style="text-align: left">Any additional information relevant to determining the adequacy of existing and planned future water supplies to meet existing and planned future demands.&nbsp;(Govt. Code &sect; 65352.5(c).)</li> </ul> <p style="text-align: left">A similar requirement is for cities and counties, when adopting or substantially amending a general plan, to use &ldquo;as a source document&rdquo; any UWMP submitted by the public water provider, presumably for purposes of preparing the CEQA analysis related to the proposed land use action.&nbsp;(Govt. Code &sect; 65302.2.)</p> <p style="text-align: left">The Act amends the Government Code to require that cities and counties also consider any groundwater sustainability plan adopted under the Act that applies to the area affected by the city or county general plan.&nbsp;While this appears to be a sensible requirement, the Act does not address several other related issues.</p> <p style="text-align: left">For example, both UWMPs and the new groundwater sustainability plans are required to include detailed information and analyses regarding basin conditions, management efforts, and the sufficiency of groundwater supplies to serve existing and projected demands.&nbsp;However, different standards apply to these different planning documents, and they often will be prepared by different agencies.&nbsp;Despite the potential for inconsistent information, analyses, conclusions, and timing of preparation, the Act does not amend the UWMP Act to require the findings of a groundwater sustainability plan to be included within, relied upon, or accounted for in preparing an UWMP.&nbsp;Similarly, the Act does not require an agency developing a groundwater sustainability plan to consider the groundwater information, analyses or conclusions contained in a duly adopted UWMP.&nbsp;If the information and analyses of a UWMP and a groundwater sustainability plan are not in perfect harmony, the Act does not address whether a city or county must or should choose one over the other in preparing its general plan.&nbsp;The Act does provide that a groundwater sustainability plan does not supersede the land use decision making of a city or county, but it does not provide guidance on how the city weighs the evidentiary strength of both the UWMP and a sustainability plan.&nbsp;Thus, the potential for conflict and difficulties for cities or counties in charting an analytical path are heightened by the new requirements of the Act.</p> <p style="text-align: left">In a similar vein, the Act does not address the relationship between groundwater sustainability plans and project-level water supply sufficiency determinations made by retail water providers under the Water Supply Assessment (WSA) and Written Verification (WV) statutes.&nbsp;The WSA statute (commonly referred to as &ldquo;SB 610&rdquo;) and CEQA require a city or county undertaking CEQA review for certain projects defined by Water Code section 10912 to request a WSA from the public water system that will provide retail water service to the project.&nbsp;(Water Code &sect; 10910(b); Pub. Res. Code &sect; 21151.9.)&nbsp;The following types of projects trigger the need to prepare a WSA:</p> <ol> <li style="text-align: left">A residential development of more than 500 units;</li> <li style="text-align: left">A business/shopping center with more than 1,000 employees or more than 500,000 square feet of floor space;</li> <li style="text-align: left">A commercial office building with more than 1,000 employees or more than 250,000 square feet of floor space;</li> <li style="text-align: left">A hotel/motel with more than 500 rooms;</li> <li style="text-align: left">An industrial/manufacturing/processing plant or industrial park with more than 1,000 employees, encompassing more than 650,000 square feet of floor space, or occupying more than 40 acres of land (provided, until January 1, 2017, a photovoltaic or wind energy generation facility is not a project that requires a WSA if the facility would demand no more than 75 acre-feet of water annually);</li> <li style="text-align: left">A mixed-use development project that includes one or more of the projects specified in subsections (1) through (5) above;</li> <li style="text-align: left">A project that would demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling unit project; or</li> <li style="text-align: left">For a supplier with 5,000 or fewer connection, a project that will increase the number of connections by 10% or more.&nbsp;(Water Code &sect; 10912(a)-(b); State CEQA Guidelines &sect; 15155.)</li> </ol> <p style="text-align: left">Among other requirements, a WSA must provide comprehensive information and analyses regarding groundwater basin conditions, adjudicatory and/or&nbsp;management efforts regarding groundwater resources, and groundwater sufficiency.&nbsp;(Water Code &sect; 10910(f).)&nbsp;Once prepared and adopted by the public water system, the WSA must be provided to the city or county as the CEQA lead agency and included in the CEQA document being prepared for the proposed project.&nbsp;Based on the WSA and other evidence, the city or county must determine whether total projected water supplies, including groundwater, are sufficient to serve the project in addition to existing planned future uses.&nbsp;(Water Code &sect; 10911(b)-(c).)&nbsp;The WSA can also be used to evaluate a project&rsquo;s potential environmental impacts to groundwater resources under applicable CEQA standards.</p> <p style="text-align: left">The WV statute (commonly referred to as &ldquo;SB 221&rdquo;) requires a city or county to condition its approval of a development agreement or tentative map that includes a &ldquo;subdivision&rdquo; (a proposed residential development of more than 500 units) on the requirement that a sufficient water supply will be available to serve the project.&nbsp;(Govt. Code &sect;&sect; 65867.5; 66473.7.)&nbsp;Proof of a sufficient water supply must be based on a WV prepared by the public water system that will provide retail water service to the project.&nbsp;Like WSAs, a WV must provide comprehensive information and analyses regarding groundwater basin conditions, adjudicatory, and/or&nbsp;management efforts regarding groundwater resources, groundwater rights, and groundwater sufficiency.&nbsp;(Govt. Code &sect; 66473.7(c), (h).)&nbsp;Moreover, the WV statutes expressly provide that information and analyses from an UWMP and/or WSA can be used as evidence in support of the WV.&nbsp;(Govt. Code &sect; 66473.7(c).)</p> <p style="text-align: left">However, the Act does not amend the WSA statute, the WV statute, or CEQA to expressly require that the findings of a groundwater sustainability plan be included within, relied upon, or accounted for in preparing a WSA, WV, or water supply analysis under CEQA.&nbsp;Consequently, a number of questions unanswered by the Act arise:&nbsp;Is a WSA, WV, or CEQA analysis that fails to account for the framework and conclusion of a duly adopted groundwater sustainability plan &nbsp;invalid per se?&nbsp;Conversely, is a WSA, WV, or CEQA analysis that incorporates the findings of a groundwater sustainability plan valid per se for purposes of the information and conclusions regarding groundwater management, groundwater sufficiency, and potential groundwater impacts?&nbsp;If the information, analyses, or conclusions of a WSA, WV, or CEQA analysis are inconsistent with those of an adopted groundwater sustainability plan, how will those inconsistencies be resolved?</p> <p style="text-align: left">On this issue, the Act could signal an important shift in the traditional land use decision-making process.&nbsp;When the WSA and WV statutes were adopted in 2001, both included express provisions that gave cities and counties the final say in whether sufficient water supplies exist to serve a proposed project.&nbsp;(See Water Code &sect; 10911(c); Govt. Code &sect; 66473.7(b)(3), (f).)&nbsp;Those provisions were specifically included to ensure that water agencies would not be empowered with a decision that ultimately could determine whether or not a land use decision is approved.</p> <p style="text-align: left">Under the Act, when a city or county proposes to adopt (or substantially amend) its general plan, a groundwater sustainability agency (which could be the local water supply agency) must provide a report on the &ldquo;<i>anticipated effect</i>&rdquo; of the proposed land use action on the groundwater sustainability plan.&nbsp;In preparing a sustainability plan, the Act requires the plan to &ldquo;take into account&rdquo; the most recent planning assumptions stated in local general plans of jurisdictions overlying the basin.&nbsp;But this does not require a sustainability plan to <i>use</i> the same planning assumptions as the general plans, nor does it provide a mechanism to prevent the two documents from repeatedly chasing and potentially working at odds with each other.&nbsp;Thus, the evidentiary effect of the sustainability agency&rsquo;s report and whether the city or county acting as the lead agency under CEQA must or should agree with the findings of the sustainability agency are not&nbsp;resolved by the Act.&nbsp;On the one hand, the Act states that a sustainability plan shall not be interpreted as superseding the land use authority of cities and counties or their general plans.&nbsp;On the other hand, the Act requires the groundwater sustainability agency to report on the anticipated effect of the general plan proposal on the 50-year sustainability plan.&nbsp;Whether groundwater management agencies could seek to use the Act as a trump card or as leverage in certain land use decisions by cities and counties remains to be seen.</p> <p style="text-align: left">The opposite effect is also possible.&nbsp;Assuming a city or county wants to rely upon and incorporate the findings of a groundwater sustainability plan, it must beware the fruit of a poisonous tree.&nbsp;This potential complication has arisen in connection with the relationship between UWMPs and project-specific water supply analyses.&nbsp;On the one hand, WSAs, WVs, and CEQA analyses can be buttressed by the information and conclusions of a current UWMP.&nbsp;On the other hand, if the legal sufficiency of the UWMP has been challenged or if the UWMP is otherwise deficient, subsequent project-specific analyses can get caught in the crossfire.&nbsp;As the Courts of Appeal have noted:</p> <p style="text-align: left">If an UWMP is inadequate the public and the various governmental entities that rely on the UWMP may be seriously misled by it and, if the wrong set of circumstances occur, the consequences to those who relied on the UWMP, as well as those who share a water supply with them, could be severe.&rdquo;&nbsp;(<i>Sonoma County Water Coalition v. Sonoma County Water Agency</i> (2010) 189 Cal.App.4th 33, 61-62; quoting <i>Friends of the Santa Clara River v. Castaic Lake Water Agency</i> (2004) 123 Cal.App.4th 1, 15.)</p> <p style="text-align: left">Groundwater sustainability plans substantially affect a wide variety of stakeholders, and thus may be controversial.&nbsp;If such a plan is legally challenged, it may cloud the record for purposes of preparing UWMPs, WSAs, WVs, and water supply analyses under CEQA that seek to rely on the challenged plan.</p> <p style="text-align: left"><b><u>Drought Response Actions on Surface Water, Reclaimed Water, and Public Conservation</u></b></p> <p style="text-align: left">In addition to the proposals for regulating groundwater, state agencies have been acting in response to the drought on measures to conserve surface water, promote the use of recycled water, and mandate public conservation efforts.</p> <p style="text-align: left"><u>New Curtailment Orders for Surface Water Diversions</u></p> <p style="text-align: left">Drought conditions are also affecting surface water rights in unprecedented ways.&nbsp;In parallel with the Governor&rsquo;s January 2014 Declaration of drought emergency, on January 17, 2014, the State Board announced that it may issue &ldquo;curtailment notices&rdquo; requiring holders of surface water rights to limit or stop diversions under their water rights permits.&nbsp;The announcement advised water rights holders to seek out alternative water supplies, including groundwater, purchased water, and recycled water.&nbsp;The curtailment process is designed to follow California&rsquo;s &ldquo;first in time, first in right&rdquo; surface water right system.&nbsp;Junior water rights holders are generally those with water rights granted after 1914, which is when the state began regulating and permitting surface water diversions on a statewide level.&nbsp;Senior water rights holders are generally those whose surface water rights existed before 1914 and those with riparian rights who own property adjacent to water courses.&nbsp;Under a curtailment notice, junior water rights holders can be ordered to limit or stop diverting water.&nbsp;Curtailment orders also require the completion of a compliance certification form.</p> <p style="text-align: left">On July 2, 2014, the State Board adopted emergency regulations to provide a more streamlined process to curtail surface water diversions to prevent the unreasonable method of diversion or use of water such that appropriate minimum amounts of water are available for (1) senior water right users, (2) public trust needs for state and federally protected fish, and (3) minimum health and safety needs.</p> <p style="text-align: left">As of this writing, the State Board has issued curtailment notices and orders for post-1914 appropriative water rights in the Mill, Deer, and Antelope Creek watersheds, the Scott River Watershed, the Sacramento and San Joaquin River watersheds, the Russian River watershed, and the Eel River watershed.&nbsp;Those who divert water in violation of a curtailment order or beyond their senior legal rights are subject to administrative fines, cease and desist orders, and court action.&nbsp;Under the emergency regulations, the State Board is authorized to impose fines of $1,000 per day per violation, and $2,500 for each acre-foot diverted or used in excess of a valid water right. &nbsp;(See Water Code &sect;&sect; 1052, 1055.)&nbsp;In addition, failure to comply with a cease and desist order is punishable by a fine of $10,000 per day.&nbsp;(See Water Code &sect;&sect; 1831, 1845.)</p> <div style="text-align: left"><u><br clear="all" /> </u></div> <p style="text-align: left"><u>State Board Efforts to Streamline Recycled Water Use Permits</u></p> <p style="text-align: left">On June 3, 2014, as another response to the Governor&rsquo;s Declaration and Proclamation of continued emergency, the State Board adopted a General Order that enables Regional Water Quality Control Boards to streamline the permitting process for recycled water uses.</p> <p style="text-align: left">The General Order establishes standard conditions for certain uses of recycled water which, according to the State Board, relieves producers, distributors, and users of recycled water from the often lengthy permitting and approval process.&nbsp;The General Order applies to most non-potable uses of treated municipal wastewater found in Title 22 of California&rsquo;s Code of Regulations, such as dust control, agricultural irrigation, landscape irrigation, cooling towers, and other industrial processes.&nbsp;The General Order does not provide permitting coverage for groundwater recharge.</p> <p style="text-align: left">All recycled water use under the General Order must be consistent with applicable Salt and Nutrient Management Plans approved by the Regional Boards, and any violations of the General Order are subject to enforcement action.&nbsp;The State Board indicates that recycled water use under the General Order will help the state meet its water recycling goals in the California Water Action Plan.&nbsp;Pursuant to the Governor&rsquo;s emergency drought declarations, adoption of the General Order was exempt from CEQA review.</p> <p style="text-align: left"><u>Emergency Regulations for Statewide Water Conservation</u></p> <p style="text-align: left">On July 15, 2014, the State Board adopted emergency regulations for water conservation regulations.&nbsp;The regulations apply to individuals, urban water suppliers (a supplier providing water for municipal purposes directly or indirectly to more than 3,000 customers or supplying more than 3,000 acre-feet of water annually), and other distributors of public water that are not defined as urban water suppliers (including publicly and privately owned water suppliers and mutual water companies).</p> <p style="text-align: left">As to individuals, the regulations prohibit the application of water to outdoor landscapes in a manner that causes visible runoff, the use of a hose to wash an automobile except where the hose is equipped with a shut-off nozzle, the application of potable water to driveways and sidewalks, and the use of potable water in non-recirculating decorative water fountains. Violations would be punishable by a fine of up to $500 for each day in which the violation occurs, although local agencies retain their enforcement discretion in enforcing the regulations.</p> <p style="text-align: left">As to urban water suppliers, the regulations require each supplier to implement all requirements and actions of the stage of its water shortage contingency plan that imposes mandatory restrictions on outdoor irrigation of ornamental landscapes or turf with potable water.&nbsp;As an option, urban water suppliers may develop an alternate plan that does not include mandatory restrictions on outdoor irrigation if allocation-based water rate structures, combined with other measures, achieve a level of conservation that would be greater than that achieved by limiting outdoor irrigation to two days per week. &nbsp;For urban water suppliers without a water shortage contingency plan or with an insufficient plan, and for all distributors of public water supplies, the regulations require, within 30 days, the implementation of limits on outdoor irrigation of ornamental landscapes or turf with potable water to no more than two days per week, or other conservation measures to achieve a reduction in water consumption from 2013 levels.</p> <p style="text-align: left">The regulations also require all urban water suppliers to submit a monthly monitoring report to the State Board, indicating the amount of potable water produced (including water provided by a wholesale agency) in the preceding month and an estimate of the gallons of water used per person per day. &nbsp;Further, the initial report must state the number of people served by the urban water supplier.</p> <p style="text-align: left">Depending on local water supply portfolios, the State Board&rsquo;s emergency regulations may require many water providers to declare water shortage emergencies and impose mandatory conservation, rationing or allocation-based water pricing (many already have voluntary measures in place). &nbsp;The authority to impose these restrictions derives from specific provisions of the Water Code, general police powers, and other express powers of special act agencies. &nbsp;Legal challenges may arise as water supply agencies seek to allocate limited supplies and the effects of those efforts begin to manifest.</p> <p style="text-align: left"><b><u>Conclusion</u></b></p> <p style="text-align: left">California&rsquo;s historic drought is eliciting historic and unprecedented responses from the Legislature, the Governor, the State Water Resources Control Board, the courts, and interested parties throughout the state.&nbsp;The drought highlights the reality we face in California, where water demands will continue to increase, while supplies will continue to face both hydrologic and regulatory constraints.&nbsp;This growing tension between demand and supply will bring challenges, opportunities, and a host of consequences.&nbsp;Fasten your seatbelts as California water law speeds into the 21<sup>st</sup> century.</p> <p style="text-align: left; margin: 0in 0in 0pt" class="MsoNormal"><i><font face="Calibri">*This article originally appeared in the Fall 2014 issue of Environmental Law News, a publication of the State Bar of California&rsquo;s Environmental Law Section. Reprinted with permission.</font></i></p> <p style="text-align: left; margin: 0in 0in 0pt" class="MsoNormal"><i><font face="Calibri"><o:p></o:p></font></i></p>BB&K In The News01 Dec 2014 00:00:00 -0800