Fourth District Court of Appeal Holds That Irrigation District Can Rely on a Previous Negative Declaration and Does Not Need to Perform Subsequent Environmental Review When Making Certain Updates to Water Distribution Regulations

James A. Abatti et al., v. Imperial Irrigation District (4th Dist. April 26, 2012)      Cal.App.4th              (Case No. D058329)

Factual and Procedural Background

In 2006, the Imperial Irrigation District adopted a resolution related to a plan for the distribution of water in the event of a water shortage.  Concurrently with its adoption of a resolution, the District adopted a negative declaration in which it concluded that the distribution plan would not have a significant effect on the environment.  In 2007, the District adopted regulations implementing the distribution plan.  There were no challenges to either the resolution adopting the plan or to the initial regulations implementing the plan.

In 2008, the District adopted additional regulations that revised the 2007 regulations. Concurrently with the 2008 regulations, the District adopted an environmental compliance report that concluded the 2008 regulations did not warrant further environmental assessment under CEQA.  The District relied on Public Resources Code section 211166 and CEQA Guidelines section 15162, which provide limitations on the necessity for subsequent environmental review under certain circumstances.  Section 21166 provides that once an agency prepares an EIR, no EIR shall thereafter be required for the project unless certain circumstances occur, such as substantial changes to the project or to the circumstances under which the project is being undertaken.  Guidelines section 15162 provides a similar limitation on subsequent environmental review following the agency’s adoption of a negative declaration. 

Appellants, owners of agricultural land in Imperial County, filed a petition alleging that the District failed to comply with CEQA in adopting the 2008 regulations.  The trial court denied the petition, holding there was substantial evidence to support the District’s determination that the adoption of the 2008 regulations did not require additional CEQA review.  According to the trial court, the project being evaluated here (the 2008 regulations) included the 2007 regulations and there was substantial evidence to support the District’s determination that there had been no changes in the project or in the surrounding circumstances since the adoption of the 2007 regulations that warranted additional review under section 21166.  The court found the 2008 regulations simply served to clarify an omission made in the 2007 regulations – that the District could limit new industrial contracts to less than the contract amount if appropriate, and notably, this was a limitation on water deliveries.  The change to the regulation was not an expansion of water distribution rights as appellants had asserted.  The decision was appealed and the appellate court affirmed.      

Appellate Jurisdiction

The first issue addressed by the appellate court was whether it had jurisdiction over the appeal in light of the fact that appellants dismissed several causes of action without prejudice prior to the entry of judgment on the CEQA causes of action.  Under the final judgment rule, an appeal cannot generally be taken from a judgment that fails to complete the disposition of all the causes of action between the parties.  The court held that claims that have been dismissed, with or without prejudice, do not remain pending within the meaning of the final judgment rule unless there is a stipulation between the parties facilitating the future litigation of the dismissed claims, such as an agreement tolling the statute of limitations. Here, there was no such stipulation so the court was able to exercise jurisdiction. 

CEQA Claim

The court first addressed the appellants’ argument that Guidelines section 15162 was invalid because it improperly purports to extend section 21166 to negative declarations.  Section 21166 mentions only EIRs and not negative declarations.  Guidelines section 15162 has been held to be a valid regulation that implements the principles of section 21166.  (Benton v. Board of Supervisors (1991) Cal.App.3d 1467, 1479-1481).  Appellants argued, however, that Benton was wrongly decided.  The court disagreed and held that section 15162 validly implements the principles contained in section 21166.  The court agreed with Benton that section 15162 is valid because it furthers the purpose of section 21166, notwithstanding that the text of section 21166 refers only to EIRs. Therefore it held that section 15162 is valid when applied to cases, such as this, in which an initial negative declaration was prepared. 

Appellants also argued that, even if section 21166 applied, the District was required to prepare an EIR due to the significant changes in the 2008 regulations.  The court rejected this argument as well, finding that there was substantial evidence to support the District’s determination that the adoption of the 2008 regulations did not constitute a substantial change to the Project requiring additional environmental review. After reviewing the respective regulations, the court found the 2008 regulations did not substantially increase the priority preference that industrial users of water would receive over agricultural users in times of shortage, as appellants had alleged.  Its view of the 2008 regulations was that they made only a minor change to the 2007 regulations. The 2008 regulations, which allowed the apportionment of water to existing users based on “past use” and the apportionment of water to new users based on “anticipated use” is one that actually limited water delivery to future industrial users from the amounts they would have received under the 2007 regulations and was not a substantial change requiring subsequent environmental review.  Therefore, the court held that no further environmental review was required and affirmed the trial court’s decision to deny the petition.


This case confirms the holding in Benton that section 21166 allows a public agency to forego subsequent environmental review under certain circumstances regardless of whether the preceding environmental review document was an EIR or a negative declaration.  Unless the specific events described in Public Resources Code section 21166 or Guidelines section 15162 have occurred, an agency does not need to conduct further review when making minor changes to a project if an EIR or negative declaration has already been completed. Although the court does not expressly state what satisfies the “substantial changes” standard requiring subsequent review under CEQA and CEQA Guidelines, the case nonetheless provides useful guidance regarding the limits of the provisions and helps clarify when the need for subsequent review has been triggered.