Archives: July 2014

Court of Appeal Holds Federal Law Does Not Preempt CEQA for High-Speed Train Project; Upholds Program EIR for Bay Area to Central Valley Route

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The Third District Court of Appeal held that the application of CEQA to the California High-Speed Train project was not preempted by federal law in Town of Atherton v. California High Speed Rail Authority (July 24, 2014, Case No. C070877). On the merits, the Court ruled in favor of the Authority on all claims, finding that the Authority’s program EIR wholly complied with CEQA.

As California’s plans for a high-speed train system have developed over the past two decades, the system’s alignment from the Central Valley to the San Francisco Bay Area became an area of contention. The particular dispute was over the Authority’s decision that trains travelling between the Central Valley and the Bay should travel through the Pacheco Pass, which turns west from between Fresno and Merced, rather than farther north at the Altamont Pass, which turns west from the Central Valley south of Stockton. According to the Authority’s corridor evaluation report, the Altamont Pass would require additional tracks to provide train service to San Jose, resulting in less frequent service to San Francisco and San Jose absent the provision of additional trains. Based upon this determination, the Authority prepared an EIR identifying the Pacheco Pass as the preferred alternative.

After a legal challenge to the initial EIR, the Authority revised its program EIR and again selected the Pacheco Pass route as the preferred alternative. The South Bay town of Atherton challenged the adequacy of the revised EIR and approval of the Pacheco Pass alternative, arguing that the program EIR violated CEQA because it (1) provided an inadequate analysis of the vertical profile options for alignment (i.e., where to elevate the track) along the San Francisco Peninsula; (2) used a flawed revenue and ridership model; and (3) had an inadequate range of alternatives because it rejected an alternative proposed by one expert consulting company.

Preemption

Prior to oral argument, the Authority asked the court to dismiss the case, contending that federal law, specifically the Interstate Commerce Commission Termination Act (ICCTA), preempted any CEQA remedy. It argued that the ICCTA created exclusive federal regulatory jurisdiction and a federal agency, the Surface Transportation Board, had recently assumed jurisdiction over the High-Speed Train. The court found it did not need to decide whether the ICCTA preempts CEQA as to the train, however, because at least one exception to preemption applied here. Under the market participation doctrine, proprietary state actions are protected from federal preemption. The court found no evidence supporting the Authority’s contention that the market participant exception could only be asserted defensively. Accordingly, the court held that CEQA applies to the project and proceeded to address petitioners’ claims on the merits.

Adequacy of the Program EIR

The court next addressed petitioners’ claims regarding the adequacy of the program EIR. The court upheld the Authority’s use of a program EIR and held that the Authority properly deferred site-specific analysis, including the vertical alignment, to a later project EIR. The court stated that the precise vertical alignment of the train at specific locations is the type of site-specific consideration that must be examined in detail in a project-level EIR. Requiring such analysis at the program level, the court reasoned, would undermine the purpose of tiering and would create a burdensome level of detail in the larger-scale program EIR.

The court also held that the challenge to the revenue and ridership modeling presented a disagreement among experts that did not make the revised final project EIR inadequate. Petitioners failed to show that the Authority’s ridership model was “clearly inadequate or unsupported,” and the modelers had followed generally accepted professional standards. Thus, substantial evidence supported use of that model.

Finally, the court held that the Authority studied an adequate range of alternatives and was not required to analyze the Altamont Pass alternative proposed by petitioners’ consulting company, given that the alternative was substantially similar to the alternatives already studied and that range of alternatives was not shown to be inadequate.

Fifth District Court of Appeal Upholds EIR for Wind Farm in Kern County

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The court held that the EIR’s mitigation measure for aircraft safety impacts, requiring that wind turbines be reviewed by the Federal Aviation Administration before issuance of building permits, was feasible and enforceable. The court also held that substantial evidence supported the EIR’s conclusion that the mitigation measure would be effective to mitigate impacts on aviation safety. Citizens Opposing a Dangerous Environment v. County of Kern (June 30, 2014, Case No. F067567) was certified for partial publication on July 25.

The case arose from the County of Kern’s approval of a conditional use permit for the operation of a wind farm in the Tehachapi Wind Resource Area. The county approved the CUP for the construction of wind turbines, up to 500 feet tall, after preparing an EIR. The EIR determined that the wind turbines might pose significant safety hazards to aircraft and gliders using a nearby private airport. The county, therefore, adopted a mitigation measure requiring the project applicants to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each wind turbine prior to issuance of building permits. Citizens Opposing a Dangerous Environment (CODE) filed a petition challenging the EIR on various grounds. The trial court denied the petition and CODE appealed.

CODE’s principal challenge on appeal was to the validity of the aircraft safety mitigation measure. CODE argued that the EIR failed to describe an adequate mitigation measure as a matter of law because the measure would not avoid or minimize significant impacts to aviation safety. The court disagreed, noting the mitigation measure’s requirement that the applicant obtain FAA certification for each wind turbine prior to construction. The court then pointed to other CEQA cases holding that mitigation measures requiring compliance with existing regulatory schemes are common and reasonable. And since federal law occupies the entire field of aviation safety, the court found it reasonable to expect compliance with FAA regulations by the applicants.

CODE also argued the aircraft safety mitigation measure was infeasible because the FAA could not legally block the project through enforcement of its “hazard/no-hazard” determinations. But the court noted the evidence suggested the hazard/no-hazard determinations can have a substantial practical impact on projects, even if the FAA did not directly have the power to halt the project. In any event, the mitigation measure made issuance of building permits for each wind turbine contingent on FAA approval. So while the FAA could not directly halt construction of the project, the county, through its police power, could. Therefore, the court determined the mitigation measure adopted to protect aircraft safety was feasible and enforceable, and the EIR’s conclusion that the mitigation measure would be effective was supported by substantial evidence.

The court also rejected CODE’s claims that the EIR should be set aside because the county failed to respond to late comments and that the county was required to adopt either CODE’s proffered mitigation measure or the EIR’s “environmentally superior alternative.”

First District Court of Appeal Upholds EIR for San Francisco’s Treasure Island Redevelopment Project

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The Court of Appeal rejected petitioner’s argument that the city was required to prepare a program-level EIR rather than project-level EIR for a long-term development plan in the San Francisco Bay.  In Citizens for a Sustainable Treasure Island v. City and County of San Francisco (July 7, 2014, Case No. A137828), the court held that the EIR provided sufficient project-level information and properly relied on regulatory standards and guidelines. The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the Tidelands Trust. In addition, the court held that the draft EIR did not need to be recirculated.

Background

The Treasure Island/Yerba Buena Island Project is a comprehensive plan to redevelop the former naval station located on Treasure Island and Yerba Buena Island in San Francisco into a mixed-use community. Among other amenities, the project will include up to 8,000 residential units, up to 140,000 square feet of commercial and retail space; up to 100,000 square feet of office space; 300 acres of parks, playgrounds, and open public space; restoration and reuse of historic buildings; bike and transit facilities; and a new ferry terminal and intermodal transit hub. Build-out of the project is planned to occur in phases over a 15- to 20-year period.

The City and County of San Francisco, along with the Treasure Island Development Authority, approved the project in June 2011. A group called Citizens for a Sustainable Treasure Island (CSTI) filed a petition for writ of mandate challenging the EIR for the project on various grounds. The trial court denied the petition in its entirety and CSTI appealed.

The Appellate Court’s Opinion

Before reaching the merits of CSTI’s arguments, the court clarified the applicable standard of review. Despite CSTI’s efforts to frame the issues to allege procedural violations under CEQA, the court determined that most of the issues raised on appeal were properly reviewed under the substantial evidence standard because they involved the sufficiency of the information provided to the public and to the decision makers. The court clarified that because CEQA requires an EIR to reflect a good faith effort at full disclosure, rather than perfect or exhaustive analysis, the absence of information in an EIR will normally rise to a failure to proceed in the manner required by law only if the analysis in the EIR is clearly inadequate or unsupported.

Project-Level v. Program-Level Analysis

CSTI’s primary argument on appeal was that the city was required to prepare a program EIR rather than a project EIR. It claimed that the project was only developed at a conceptual level by design, and therefore, the city was required to prepare a program EIR and analyze the project using “tiered” environmental review. The court rejected the argument, pointing out that CSTI failed to cite any authority suggesting that the city was required to prepare any particular type of EIR. The court emphasized that the label assigned to an EIR is less important than the EIR’s sufficiency as an informative document. Instead of focusing on labels when reviewing EIRs for legal adequacy, courts focus on whether EIRs provides decision makers and the public with sufficient analysis to intelligently consider the environmental consequences of a project. 

Adequacy of Project Description

The court next addressed CSTI’s argument that the project description was inadequate. Similar to its previous argument, CSTI claimed that the EIR analyzed only an “abstract and indeterminate ‘conceptual’ development scenario” lacking necessary project-level detail. It complained, for example, that the specific configuration and design for particular buildings is left for future review and the street layout is only conceptual, with the final layout also subject to future review by responsible agencies.

The court rejected these criticisms. While the EIR did not include the exact, final plans for each building or street, it identified numerous design standards “governing virtually every aspect of project development.” The court determined these design standards provided stable information regarding final building details, including heights, mass, bulk, and other design specifications, while still allowing flexibility at the early stage in the planning process to allow future revisions. The court also noted that future revisions would likely be the subject of further supplemental environmental review. Accordingly, the court determined the EIR’s project description was adequate.

Presence and Remediation of Hazardous Substances

The court next rejected CSTI’s argument that the EIR did not include enough detail about the hazardous materials on the project site and how the city might remediate them. It explained that the EIR included extensive information on the presence of toxic or hazardous substance in the project area. It also noted that the Navy assumed primary responsibility for the remediation of each parcel of land before transferring it to the City. Further, in the event the city or developer assumed responsibility for any cleanup efforts in the future, they would be subject to the same environmental regulations and regulatory oversight as the Navy, and these numerous regulatory requirements were described in a mitigation measure adopted with the EIR.

CSTI also argued the mitigation measure was improperly deferred because a remediation plan would not be developed until a future time. The court found this argument unconvincing. The EIR relied on the existing regulatory scheme and performance standards to ensure any potential future remediation would occur without generating significant environmental impacts.

Recirculation

CSTI also argued that the City was required to recirculate the draft EIR in light of “significant new information.” During the comment period, the Coast Guard submitted a comment suggesting the project could interfere with vessel safety and homeland security on San Francisco Bay by interfering with the Coast Guard’s Vessel Traffic Service (VTS).

In response to the comment, the City met with the Coast Guard and conducted additional technical studies to determine potential impacts of buildings on VTS equipment operations. The final EIR amended design standards for the project to require consultation with the Coast Guard if future proposals included buildings tall enough to interfere with VTS equipment. The design standards also require any building developer to work with the Coast Guard to make space for additional equipment, or reach a similar solution, to preserve the effectiveness of the VTS. The Coast Guard submitted an additional comment letter, indicating the consultation process addressed the agency’s prior concerns. When approving the project, the city explicitly found that this binding consultation process would eliminate any impacts to vessel safety on San Francisco Bay.

Finding that the Coast Guard’s letter did not raise significant new information within the meaning of CEQA, the court explained that the record contained substantial evidence indicating the continued effectiveness of the VTS system would be ensured, despite urban development on Treasure Island and the refinements made to the EIR to satisfy the Coast Guard’s concerns did not constitute the type of significant new information requiring recirculation of an EIR.

Historic Resources

CTSI also argued the EIR did not adequately disclose or mitigate potential impacts to two historic buildings in the project area because the EIR did not identify the precise and final disposition of those buildings. But again, the EIR identified binding design standards which would apply to any final architectural design proposals. The design standards require that rehabilitation of the historic buildings be conducted in accordance with the Secretary of the Interior’s Standards for the Rehabilitation and Guidelines for Rehabilitating Historic Buildings. The court noted that these standards serve as an explicit benchmark to establish whether a project will have a significant adverse impact to historic buildings. The court also noted that if a non-conforming use of the historic buildings was proposed in the future, the use would not be covered in the EIR and would therefore require supplemental environmental review. But the city was not required to study a hypothetical future change to the project in the current EIR.

Consistency with the Tidelands Trust

Finally, CSTI argued the EIR did not adequately discuss and analyze the potential impacts of the project on land subject to the Tidelands Trust. CSTI’s argument again centered on that fact that not all proposed uses within the Project area are known at this time. But the court rejected CSTI’s insinuations that non-trust uses would be permitted on lands subject to the trust. The EIR explained that the project must conform to the legal requirements of the Trust. The EIR also acknowledged the use restrictions the trust would impose on tidelands. And any proposed use is subject to the Tidelands Trust overlay zone and final approval and review by the Treasure Island Development Authority.

RMM Partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest and Cross-Appellant Treasure Island Community Development, LLC.

Court of Appeal Upholds San Jose’s Eighth Addendum to Airport Master Plan EIR

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The First District Court of Appeal held that changes to the City of San Jose’s Airport Master Plan did not constitute a new project as a matter of law and did not require supplemental review under Public Resources Code section 21166. The court ordered publication of the opinion – Citizens Against Airport Pollution v. City of San Jose (June 6, 2014, Case No. H038781) – on July 2, 2014.

The center of the dispute was an addendum to the City of San Jose’s 1997 EIR prepared for its International Airport Master Plan. The city had also prepared a Supplemental EIR for the plan in 2003. The addendum, which was the city’s eighth addendum to the 1997 EIR, assessed the impacts of proposed amendments to the Airport Master Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.

Petitioner Citizens Against Airport Pollution’s (CAAP) primary argument was that the amendments to the Airport Master Plan addressed in the eighth addendum constituted a new project as a matter of law, and therefore, an EIR addendum was barred under CEQA. Alternatively, CAAP argued that an EIR addendum could not be used to analyze the environmental impacts of the plan changes, since those changes were substantial and required major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and biological resources.

The Court of Appeal was not persuaded by CAAP’s argument that the changes to the Airport Master Plan constituted a new project as a matter of law, and that the city was therefore required to prepare a new EIR. The court confirmed that the an agency’s determination on whether supplemental environmental review is required is review under the substantial evidence test, distinguishing previous cases that applied the “fair argument” standard to the question of whether a subsequent approval was “within the scope” of a previous approval.

The court next turned to CAAP’s alternative argument that the city was required to prepare a supplemental EIR for the plan amendments because they were “substantial changes” requiring “major revisions” in the EIR. CAAP claimed that there would be new or more severe impacts in several areas including noise, greenhouse gas emissions, air quality, and biological resources.

Notably, the court rejected CAAP’s argument that the city was required to analyze Greenhouse Gas Emissions for the project since CEQA Guidelines section 15064.5, which requires analysis of GHG impacts in EIRs, was added to the Guidelines after the 1997 and 2003 EIRs were prepared. Relying on CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court held that the potential for GHG impacts was not substantial new information triggering the need for a supplemental EIR. Rather, the potential for GHG impacts have been known since well before the first EIR for the Master Plan was adopted.

The court also held that there was substantial evidence demonstrating that there would be no new or more severe impacts to biological resources. The addendum acknowledged that the project changes would result in the loss of four acres of burrowing owl habitat and included mitigation measures to mitigate the impact. The court explained that mitigation measures can be modified in an addendum if there is a legitimate reason and the changes are supported by substantial evidence. The mitigation measures in the addendum met that standard because they completely offset the loss of the four acres by establishing new permanent habitat. Moreover, the mitigation measure was only a change in the location of habitual preserved under a burrowing owl mitigation plan that as established for the 1997 EIR and it would be managed within the parameters of the established plan.

The court also upheld the city’s determination that potential changes in noise and air quality impacts did not trigger a supplemental environmental review because jet engines of today and the future are quieter and cleaner than the engines of 1997.

Sacramento Kings Request CEQA Petitioners Post $100 Million Bond to Cover Potential Lost Revenue

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This week, Sacramento Kings CFO John Reinhart stated in court papers filed by the Kings and the city that even a short delay in the arena construction could result in huge losses for the team. Both parties urged the Sacramento Superior Court to require petitioners who oppose the project to post a hefty bond covering the potential losses.

If the arena does not open by 2017, the NBA has a right to buy back the team and move them out of town—a transfer the team avoided last year when it was purchased by Vivek Ranadive after the league vetoed another group’s attempt to move the Kings to Seattle. The team has already spent $60 million purchasing the Downtown Plaza and paying architect fees.

The NBA’s 2017 buy-back deadline is not the only source of potential loss, however. A delay could push completion of excavation activities into the winter rainy season, which would cause serious problems for the construction timeline. With arena construction delayed, the team would also face increased financing costs, potential NBA penalties, and substantial revenue losses.

The bond request comes after a group of petitioners filed a CEQA lawsuit seeking to enjoin the $477 million project.  In total, two groups have filed CEQA lawsuits against the city. The hearing on the injunction request is set for July 25. The Kings request that the petitioners post a $100 million bond, and the city requests an additional $5.7 million bond to cover its own investments.

The bond request was reported by the Sacramento Bee. Click here for the full article.

Fifth District Holds Interim Renewal Contracts for Central Valley Project Water are Exempt from CEQA

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Even though the renewal contracts have expired, and thus the case was moot, the Court of Appeal nevertheless resolved the case, finding the renewal contracts both statutorily and categorically exempt from CEQA. In North Coast Rivers Alliance v. Westlands Water District, Case No. F067383 (July 3, 2014), the Fifth District Court of Appeal upheld the Westlands Water District’s interim renewal contracts with the United States Bureau of Reclamation, which continued the existing terms for water delivery from the Central Valley Project (CVP.) The court upheld the District’s findings that the interim contracts fell under the statutory exemption for ongoing pre-CEQA projects as well as the categorical exemption for the continued operation of existing facilities.

Westlands Water District and its related distribution districts serve more than 600,000 acres of farmland in San Joaquin Valley, and have a right to receive over one million acre-feet of water per year from the CVP, due to water service contracts that have been in place with the Bureau of Reclamation since the 1960s. In 2012, the Bureau and the water districts entered into two-year contracts to renew the districts’ contractual rights to receive CVP water, during which time the Bureau was set to complete the environmental review required for 25-year renewal contracts.

The water districts found that the renewals were statutorily and categorically exempt from CEQA because they involved ongoing receipt and delivery of water on identical terms as the prior water service contracts, with no expansion of service and no new facilities, and any changes related solely to minor administrative matters.

The court first rejected the water districts’ assertion that the renewal contracts were statutorily exempt under the statutory exemption for rate-setting activities under Public Resources Code section 21080, subdivision (b)(8). The court found no evidence that the renewal contracts involved any rate-setting activity.

But the court did uphold the water districts’ conclusion that the renewal contracts were statutorily exempt as ongoing projects approved before CEQA was enacted. (See CEQA Guidelines, § 15261 subd. (a).) The court found that the original contracts and construction of facilities predated CEQA’s enactment in November of 1970. Any assignment agreements and renewals entered into after CEQA’s enactment, the court found, did not result in an expansion or material modification of the underlying activity that was initially approved; rather, the agreements merely facilitated the districts’ ability to receive a stable and adequate water supply within the scope of the original project.

The court found that the renewal projects also came within the categorical exemption for operation of existing facilities. (CEQA Guidelines, § 15301.) Categorical exemptions, unlike statutory exemptions, are subject to exceptions. While the courts of appeal disagree on whether a fair argument standard or substantial evidence standard applies to exceptions, the court here found the disagreement irrelevant because it would reach the same conclusion under either standard.

Petitioners first argued that “unusual circumstances” exception applied. The court, however, agreed with the water districts that the project did not involve unusual circumstances because it was not uncommon for utility-type public agencies to have large-scale facilities operating at a large volume and to impact the environment to some extent simply by existing and functioning as utilities. The court noted that even if the large scale of the water diversion at issue constituted unusual circumstances, as petitioners argued, petitioners would still have to establish that there was a reasonable possibility the activity will have a significant effect on the environment due to such circumstances. Using the established levels of operations as the baseline, the court concluded there was insufficient evidence that there would be a substantial adverse change from the environmental baseline, and thus the exception did not apply. The court also rejected petitioners claim that the renewal contracts fell within cumulative impacts exception to the exemption. The court stated that the present litigation was not the proper time for petitioners to raise the cumulative-impact claim because the short-term interim renewal contracts did not constitute “successive projects of the same type” and therefore did not fit within the definition of the exception.

First District Upholds EIR for Project to Redevelop Former Naval Station on Treasure and Yerba Buena Islands

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In a decision published July 7, 2014, the First District Court of Appeal upheld the EIR for a project designed to transform a former naval station on San Francisco’s Treasure Island into a vibrant mixed-use community. The project is a comprehensive plan to redevelop Naval Station Treasure Island, which ceased operations in 1997.  The project will be constructed over 15 to 20 years. It includes up to 8,000 new homes (with at least 25 percent designated as affordable units available at below-market prices); 500 hotel rooms; commercial, retail, and office space; and 300 acres of parks, playgrounds, and open space. The project also includes restoration and re-use of historic buildings, public utilities, bike and transit facilities, updated infrastructure, and a new Ferry Terminal and intermodal Transit Hub. Because the project will be built over time, with changing market conditions, it includes flexible parameters for certain project elements. All told, the project is expected to cost around $1.5 billion.

The City and County of San Francisco, along with the Treasure Island Development Authority, certified the EIR for the Treasure Island / Yerba Buena Island Project in June 2011. A group called Citizens for a Sustainable Treasure Island challenged the decision, claiming the environmental documents violated CEQA on several grounds. The trial court denied the petition in its entirety. On appeal, the First District Court of Appeal affirmed the trial court’s judgment.

The petitioner’s main argument on appeal was that the lead agencies abused their discretion by preparing a “project” EIR instead of a “program” EIR. Essentially, the petitioner argued that the project was too “flexible” and uncertain to support project-level review.  The court disagreed, noting that the question under CEQA case law is not whether a particular type of EIR is prepared, but rather whether the EIR meets CEQA’s mandate to adequately identify and address the environmental impacts of a project.

The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the “Tidelands Trust.” In addition, the court held that the draft EIR did not need to be recirculated.

RMM partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest Treasure Island Community Development, LLC, in the case. (Citizens for a Sustainable Treasure Island v. City and County of San Francisco, Case No. A137828, can be read here.)

U.S. Supreme Court Does Not Take Up Constitutionality of California’s Low Carbon Fuel Standard

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The Supreme Court denied a petition for review in Rocky Mountain Farmers Union v. Corey, letting stand the Ninth Circuit’s holding that the state’s low carbon fuel standard (LCFS) is constitutional on its face. RMM previously wrote about the Ninth Circuit decision here. The issue before the court was whether the LCFS discriminates against out-of-state businesses, thereby violating the dormant commerce clause. The court held that the LCFS is neither facially discriminatory nor discriminatory in purpose or effect with respect to the regulation’s crude oil provisions.

On remand, the district court will be tasked with determining whether the regulation’s ethanol provisions place burdens on interstate commerce that outweigh the benefits, rendering the LCFS invalid, and also whether the Clean Air Act preempts the LCFS program.

Court of Appeal Upholds State Water Board’s Broad Authority to Prohibit Unreasonable Use of Water

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The court held that the State Water Resources Control Board has broad regulatory authority to prevent the unreasonable use of water, upholding a Board regulation that prohibits certain diversions by grape growers in the Russian River watershed. The First District Court of Appeal issued a partially published opinion in Light v. State Water Resources Control Board (2014) __Cal.App.4th __ (Case No. A138440) on June 16, 2014.

In April 2008, young salmon were found to have been fatally stranded along the banks of the Russian River stream system. Scientists from the National Marine Fisheries Service concluded the deaths were caused by abrupt declines in water level that occurred when water was drained from the streams and sprayed on vineyards and orchards to prevent frost damage, a common practice in the watershed.

Following a series of hearings and the preparation of an EIR, the Board adopted Regulation 862 in September 2011. Regulation 862 is likely to require a reduction in diversion of water from the stream system for frost protection, at least under certain circumstances. It applies to “any diversion of water from the Russian River stream system … for purposes of frost protection from March 15 through May 15.” The regulation itself contains no substantive regulation of water use, instead delegating the task of formulating regulatory programs to “water demand management programs” (WDMPs), which will be created by self-organized groups of agricultural diverters who will act as the “governing bodies.” Each WDMP must be submitted annually to the Board for approval. The regulation declares that any water use inconsistent with the programs, once they have been formulated and approved by the Board, is unreasonable, and therefore prohibited.

Regulation 862 was challenged in two petitions for writ of mandate. The petitions alleged that the Board lacked regulatory authority to adopt the regulation and that the regulation would unlawfully interfere with plaintiffs’ use of water drawn from the Russian River stream system. The trial court granted a writ invalidating the regulation on several grounds. The Board appealed. The Court of Appeal reversed.

The Court of Appeal first addressed plaintiffs’ argument that Regulation 862 was invalid because the Board lacked sufficient regulatory authority to adopt the regulation. Plaintiffs argued that the Board lacked authority to adopt the regulation because, according to them, the Boards’ authority to regulate the unreasonable use of water was limited to enforcement actions. The Court of Appeal disagreed, finding that the Board may exercise its regulatory powers through the enactment of regulations, as well as through the pursuit of judicial and quasi-judicial proceedings. The court noted that the Board is charged with acting to prevent unreasonable and wasteful uses of water, regardless of the claim of right under which the water is diverted, and that the Board’s authority to enact regulations in furtherance of this purpose was addressed and upheld nearly 40 years ago in People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743. The court concluded that, given the Board’s statutory charge to “prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state” and the recognized power of the Legislature to pass legislation regulating reasonable uses of water, the Board’s grant of authority to “exercise the … regulatory functions of the state” necessarily includes the power to enact regulations governing the reasonable use of water.

The Court of Appeal next addressed Plaintiffs’ contention that the Board lacks regulatory authority to limit water use by riparian users and early (pre-1914) appropriators, whose diversion is beyond the permitting authority of the Board. Rejecting this argument, the court explained that, although the Board has no authority to require such users to obtain a permit to divert, that does not mean their use of California’s water is free from Board regulation. Preventing these users from the unreasonable use of water necessarily requires the imposition of limits on that use by the Board. The Court explained that there is “no question” the Board has the power to prevent riparian users and early appropriators from using water in an unreasonable manner.

The court also determined that the regulation did not violate the rule of priority. When the supply of water is insufficient to satisfy all persons and entities holding water rights, it is ordinarily the function of the rule of priority to determine the degree to which any particular use must be curtailed. Yet, as the court explained, even in these circumstances, the Board has the ultimate authority to allocate water in a manner inconsistent with the rule of priority, when doing so is necessary to prevent the unreasonable use of water. Because no one can have a protectable interest in the unreasonable use of water, when the rule of priority clashes with the rule against unreasonable use of water, the latter must prevail. The court was careful to point out that since this was a facial challenge, its holding extended only to whether the regulation was valid on its face. It explained that the regulation does not declare any specific diversion of water for frost protection unreasonable, much less all such use. Rather, frost protection diversion is unreasonable only when it occurs in violation of the WDMP. As among individual water rights holders, the regulation requires the WDMP’s to respect the rule of priority in assigning corrective actions. Thus, a determination of whether specific regulatory measures adopted by the WDMP’s violate the rule of priority, must await implementation of the regulation.

The court also concluded that the Board properly found the regulation to be necessary to enforce water use statutes and did not unlawfully delegate its authority by requiring local governing bodies to formulate the substantive regulations.

Lastly, in an unpublished portion of the opinion, the court upheld the Board’s certification of the EIR for the regulation.

 

 

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