Tag: groundwater

SECOND DISTRICT FINDS QUANTIFICATION OF EXISTING WATER RIGHTS NOT REQUIRED UNDER CEQA FOR WATER DIVERSION AND STORAGE PROJECT

On March 3, 2022, the Second District Court of Appeal ordered published its decision in Buena Vista Water Storage District v. Kern Water Bank Authority (Feb. 23, 2022) 76 Cal.App.5th 576, in which the court held that an EIR for a project to divert and store unappropriated flood flows need not quantify all existing water rights. The court also held that CEQA does not require the project description to specify the exact amount of water that would be diverted, since that amount will vary from year to year based on the weather. Additionally, the court held that substantial evidence supported the EIR’s conclusion that the project would not adversely affect the long-term recovery of the groundwater basin in which it is located, as the project would cause a net benefit to the aquifer.

Factual & Procedural Background

Although the Kern River had been designated a fully appropriated stream for many years—such that only those who held an appropriative right could divert from it—in 2010, the State Water Resources Control Board (SWRCB) found that in certain wet years, Kern River water was available in excess of the amount appropriated. In particular, following construction of the Kern River-California Aqueduct Intertie in 1977, the Kern River water master began occasionally releasing reservoir water into the intertie to alleviate flooding. This release only occurs when flows are in excess of those held by existing water rights holders. The SWRCB concluded that this flood-released water was unappropriated and stated that it would allow applications to appropriate that water.

Respondent, the Kern Water Bank Authority, thereafter filed an application with the SWRCB seeking a permit for a water right to divert and store up to 500,000 acre-feet-per-year of the unappropriated water. The Authority also certified an EIR for the project. Buena Vista Water Storage District filed a petition for writ of mandate, seeking to set aside the Authority’s certification of the EIR and its approval of the project.

The trial court granted Buena Vista Water Storage District’s writ petition, holding: (1) the EIR’s project description was inadequate because it did not quantify existing water rights and it was unstable; (2) the EIR’s discussion of the existing baseline was inadequate because it did not quantify competing existing rights to Kern River water; and (3) the EIR’s impact analysis was inadequate because it did not adequately assess impacts on senior rights holders and impacts on groundwater during long-term recovery operations. The Court of Appeal reversed, concluding that the EIR complied with CEQA.

The Court of Appeal’s Opinion

The EIR’s Project Description is Accurate and Stable

Unlike the trial court, the Second District Court of Appeal held that the EIR’s project description is adequate under CEQA. As explained by the court, the EIR consistently and adequately describes the project as “‘high flow Kern River water, only available under certain hydrologic conditions and after the rights of senior Kern River water right holders have been met, that otherwise would have (1) been diverted to the Intertie, (2) flooded farmlands, or (3) left Kern County.’”

Buena Vista Water Storage District argued that the EIR’s project description is unstable because it relies on an “open-ended limit of ‘up to 500,000 [acre-feet] of water.” The court rejected this argument, explaining that a precise amount of water to be diverted by the project cannot be determined because water availability will fluctuate from year to year. As stated by the court: “A project description may use a flexible parameter when subject to future changing conditions.” Furthermore, the proposed 500,000 acre-foot-per-year is a finite maximum amount based on historical conditions, thus providing an adequate upper-end of the proposed diversion.

EIR Not Required to Quantify Existing Water Rights

The appellate court also rejected the District’s contention that the EIR’s project description must include a quantification of existing Kern River rights. That amount of detail is not necessary under CEQA Guidelines section 15124, subdivision (c), which requires a “general description” of the project’s technical and environmental characteristics. Moreover, a stream-wide quantification is a complex proceeding conducted by the SWRCB or a court and can take several years (or even decades) to complete. CEQA does not require this type of exhaustive detail.

Similarly, the EIR’s description of the existing environmental setting is not required to include a quantification of the existing Kern River water rights. The EIR satisfies CEQA’s informational requirements by providing measurements of Kern River water historically diverted into the Kern Water Basin and estimating, based on these historic records, how much water the Kern River Bank Authority could have diverted from the basin under baseline conditions. A complete quantification of existing water rights was not necessary to provide these estimates.

Finally, the court found it was clear that existing rights would not be impacted because the SWRCB cannot issue a new permit to divert water that is already subject to existing water rights. Further, the SWRCB expressly allowed processing of water rights applications, like the one at issue, in its Order finding that the water diverted to the Intertie was not fully appropriated. Quantification of the existing water rights was not necessary to evaluate the project’s impacts.

Substantial Evidence Supports the EIR’s Conclusions Regarding Groundwater Impacts

According to the trial court, the project would alter groundwater recovery by making groundwater available for long-term pumping for additional months or years during drought conditions, which, in the trial court’s view, would likely deplete groundwater during a drought. The Second District rejected the lower court’s analysis as factually inaccurate. The purpose of the project is to add to groundwater supplies and increase the availability of groundwater storage. The EIR concludes that the project would raise the local groundwater, resulting in a net increase in aquifer volume. Additionally, the Kern Water Bank Authority’s existing groundwater and monitoring policies will ensure that banking additional groundwater will not lower groundwater tables or affect the production rate of existing wells. Thus, substantial evidence supports the EIR’s conclusion that the project’s groundwater impacts will not be significant.

Conclusions & Implications

The Second District’s decision addresses whether an EIR for a water diversion and storage project must quantify the existing water rights to the underlying waterbody. In holding that such quantification is not required for the Kern Water Bank Authority’s proposed water diversion project, the Court of Appeal adhered to the principle that CEQA does not require an exhaustive analysis, but rather a good faith and reasonable effort at full disclosure. The decision also recognizes that for certain types of projects, particularly those involving water supplies, a project description must be somewhat flexible. The decision illustrates how a court reviewing an EIR must defer to the lead agency’s factual analyses and conclusions—deference that the trial court had failed to give to the Kern Water Bank Authority’s determinations.

– Laura Harris Middleton

California Supreme Court Holds that Stanislaus County Well Permits Are Not Categorically Ministerial

Well construction permits in Stanislaus County are issued under an ordinance that incorporates the California Department of Water Resources’ (DWR’s) well construction standards. Prior to the Supreme Court’s recent decision in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, the County categorically classified well construction projects that did not require a variance as ministerial, rather than discretionary. Ministerial projects—i.e., projects that involve no agency discretion—are exempt from CEQA. The plaintiffs, challenged the County’s categorization, alleging that all County well construction permits are discretionary projects requiring CEQA review. The Supreme Court held that the County’s “blanket classification” that all nonvariance permits are ministerial violated CEQA. Rather, CEQA requires the County to determine whether the issuance of a well permit is ministerial on a case-by-case basis.

Legal Background

CEQA does not apply to “[m]insterial projects proposed to be carried out or approved by public agencies.” (Pub. Resources Code, § 21080, subd. (b)(1).) “A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.” (14 Cal. Code Regs. (“CEQA Guidelines”), § 15369, italics added.) Rather than exercise judgment, for ministerial approvals, “[t]he public official merely applies the laws to the facts as presented but uses no special discretion or judgment in reaching a decision.” (Ibid.)

A a project is discretionary, in contrast, if the approval requires exercise of judgment or deliberation. “The key question is whether the public agency can use its subjective judgment to decide whether and how to carry out or approve [the] project.” (CEQA Guidelines, § 15357.)

Factual Background

DWR has issued Water Resources Bulletin No. 74, Water Well Standards: State of California, described as “‘a 90-page document filled with technical specifications for water wells.’” The California Water Code requires counties to adopt well construction ordinances that meet or exceed the standards in Bulletin No. 74. Many counties have incorporated the bulletin’s standards into their well-permitting ordinances.

Stanislaus County’s groundwater ordinance, which regulates the location, construction, maintenance, abandonment, and destruction of wells, incorporates many of the standards set forth in Bulletin No. 74, including:

    • Standard 8.A (re well distance from contamination sources): All wells must “‘be located an adequate horizontal distance’” from potential sources of contamination. For example, a well should be located at least 50 feet from any sewer line, and 150 feet from any cesspool or seepage pit. Agencies may increase or decrease the suggested distances, however, depending on circumstances. Determining “‘the safe separate distance for individual wells requires detailed evaluation of existing and future site conditions.’”
    • Standard 8.B: “‘[W]here possible, a well shall be located up the ground water gradient from potential sources of pollution or contamination.’”
    • Standard 8.C: “‘[I]f possible, a well should be located outside areas of flooding.’”
    • Standard 9: A well’s “annular space” must be “‘effectively sealed’” and the well must be located at established minimum surface seal depths.

The County’s ordinance also allowed the county health officer to waive these and other requirements when, in his or her opinion, the provisions were unnecessary. When authorizing such a variance, the health officer could prescribe additional conditions that the health officer deemed necessary to protect water resources.

In 1983, the County adopted CEQA regulations which, broadly-speaking, classified well construction permits as ministerial projects, except for well construction projects that required a variance. Permits requiring a variance were designated discretionary, and thus triggered environmental review. In practice, the County treated all nonvariance permits as ministerial.

Plaintiffs sued the County, alleging “a pattern and practice” of approving well permits without CEQA review. Plaintiffs asserted that all well permits issued under the County’s groundwater ordinance are discretionary because the County may “deny [a] permit or require changes to the project as a condition of permit approval to address concerns relating to the environmental impacts.”

The Supreme Court’s Decision

The Court explained that in determining whether the County’s issuance of well permits is discretionary, it is guided by the principle that CEQA must be interpreted “‘to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’” Additionally, the Court observed, one purpose of CEQA is to reduce or avoid environmental damage by requiring project’s changes when feasible. Against this backdrop, the Court held the County violated CEQA by categorically classifying nonvariance well permits as ministerial. Instead, held the Court, the County must decide whether a well permit is ministerial on a case-by-case basis.

The Court reasoned that the plain language of Bulletin No. 74’s standards incorporated into the County’s groundwater ordinance required the exercise of judgment. For instance, Standard 8.A requires the health officer to determine the “‘adequate horizontal distance,’”—a judgment that may depend on “‘[m]any variables.’” Further, Standard 8.A states that “‘[n]o separation distance is adequate and reasonable for all conditions.’” And, although the standard provides a list of minimum suggested distances, the standard also states that ‘[l]ocal conditions may require greater distances.’” Moreover, the standard allows for lesser distances which may be approved “‘on a case-by-case-basis.’”

The Court found Standard 8.A “confers significant discretion on the county health officer to deviate from the general standards,” depending on the proposed permit’s unique circumstances. It is clear from the County’s ordinance, which incorporates Bulletin 74’s standards, that the County “may shape a construction project in response to concerns that could be identified by an environmental review.” Thus, held the Court, a permit that required the County to exercise its independent judgment under Standard 8.A. is not properly classified as ministerial.

The County argued that Standard 8.A is part of a much larger regulatory scheme, which, when read as a whole, allows little or no judgment in determining whether a well permit may be issued. The Court rejected this argument as inconsistent with the CEQA Guidelines, which provide that when a project “‘involves an approval that contains elements of both a ministerial action and a discretionary action, the project will be deemed to be discretionary.’ (CEQA Guidelines, § 15268, subd. (d).)” Further, noted the Court, when there is doubt, an approval should be treated as discretionary, in service to CEQA’s environmental protection goals.

The County further argued that the issuance of well permits is ministerial because the County’s ability to mitigate potential environmental damage under the ordinance is highly constrained. The County posited, for instance, that Standard 8.A only allows the health officer to adjust the location of the well to prevent groundwater contamination. The ordinance does not allow the County to address other environmental concerns, such as groundwater depletion, or to impose other measures to prevent contamination, such as regulating the use of pesticides or fertilizers. Unpersuaded, the Court explained that “[j]ust because the agency is not empowered to do everything does not mean it lacks discretion to do anything.” Although the groundwater ordinance does not authorize the County to impose other mitigation measures, that does not mean the permit is ministerial.

The Court also rejected the County’s argument that the Court should hold the permits are ministerial in deference to the County’s determination. The Court explained that although case law suggests a local agency’s interpretation of its own ordinance may be entitled to deference, here, the relevant standards come from DWR’s Bulletin No. 74, not just a local ordinance. Furthermore, although the courts will defer to an agency’s factual determinations supporting a conclusion that a given approval is ministerial, the County’s determination in this case was based solely on the County’s legal interpretation of Bulletin No. 74’s requirements. The Court need not defer to a local agency’s interpretation of state law.

The Court was also unpersuaded by the County’s argument that a decision in plaintiffs’ favor will increase costs and delays in the issuance of well permits. The Court explained that “CEQA cannot be read to authorize the categorical misclassification of well construction permits simply for the sake of alacrity and economy.” Furthermore, observed the Court, even though CEQA review may be required for some well permits, this does not mean that an EIR would necessarily be required. Rather, the County may be able to approve a well permit by relying on another categorical exemption or preparing a negative declaration or mitigated negative declaration.

Lastly, although the Court disagreed that the County’s well permits are categorically ministerial, the Court also rejected plaintiffs’ claim that the permits are always discretionary. In some circumstances, the Court reasoned, the County’s issuance of a well permit might not require the exercise of judgment. For example, Standard 8.A only applies when there is nearby contamination. If no contamination source is identified during the permit approval process, the discretion conferred by Standard 8.A would not come into play. This, in turn, would mean that the permit may be ministerial.

Third District Declares the State Has a Duty Under the Public Trust Doctrine to Regulate Groundwater Extractions That Affect Public Trust Resources

In Environmental Law Foundation et al. v. State Water Resources Control Board  (2018) 26 Cal.App.5th 844, the Third District Court of Appeal upheld the trial court’s decision that Siskiyou County had a duty to consider the public trust doctrine in permitting wells that could adversely affect flows in the Scott River. The court also upheld the trial court’s determination that the State Water Resources Control Board had the authority and duty to “take some action” regarding groundwater extractions that affect uses of the Scott River protected by the public trust doctrine. Lastly, the court found that the Sustainable Groundwater Management Act (SGMA) neither supplanted, nor “fulfilled” the State’s duty to consider the public trust doctrine where groundwater extraction could affect protected uses.

In a declaratory relief action, plaintiffs the Environmental Law Foundation and others sought a declaration that Siskiyou County had a duty under the Public Trust Doctrine to consider whether groundwater extractions in the Scott River system could affect uses of the river protected by the doctrine. The County filed a cross-complaint seeking a declaration that the Water Board had neither the authority nor a duty to regulate groundwater extractions that could adversely affect uses of a river protected by the doctrine. To expedite an appeal, the parties stipulated to a set of 11 undisputed material facts, including that the Scott River is a navigable waterway for the purposes of the public trust doctrine, that extraction of groundwater interconnected with the Scott River system has an effect on surface flows, and that the County’s permitting and groundwater management programs regulate extraction of the interconnected groundwater.

The parties also agreed that the trial court had decided several questions of law relevant to the appeal. First, that the public trust doctrine applied where the extraction of groundwater in the Scott River system where the extraction affects public trust resources and uses in the Scott River. Second, that the County, in regulating the extraction of groundwater in the Scott River system, has a public trust duty to consider whether permitted wells will affect public trust resources and uses in the Scott River. Third, that neither the Groundwater Management Act, nor SGMA conflicted with the County’s duty under the public trust. Lastly, that the Board has both the authority and a duty under the public trust doctrine to regulate groundwater extractions that affect public trust uses in the Scott River. Both the trial court and the court of appeal concluded that the question of what the Board could or should do to regulate such groundwater was a question for another day.

On appeal, the County argued that the public trust doctrine does not apply to the extraction of groundwater, and as such, it did not have to consider the doctrine in issuing well permits and the Board could not regulate such extractions under the public trust doctrine. The court, after discussing the public trust doctrine in general, analogized the case before it to National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, rejecting the County’s argument that public trust doctrine discussion there was dicta. National Audubon, the court found, stood for the proposition that, regardless of whether the water being diverted or extracted is itself protected by the public trust doctrine, the determinative fact is the impact of the activity on public trust resources. In National Audubon, the California Supreme Court had found that diversion of water from streams not protected by the public trust doctrine, nevertheless triggered the doctrine when the diversions impacted protected uses in Mono Lake. The court found that the same logic applied in the case before it. The court rejected the County’s argument that, because the groundwater being extracted was not itself “navigable” and thus, not protected by the public trust doctrine, the Board had no authority or duty to regulate its extraction.

The court also rejected a series of arguments raised by the County and amici, including accusing the trial court of confusing the general police power with the public trust doctrine, and arguing that the State’s constitutional mandate for the reasonable use of water subsumes any duty to consider the public trust. The court found no confusion or conflict between the police power or the reasonable use mandate and the public trust doctrine. In exercising its police power, and in ensuring the reasonable use of water, the State and the County could consider the public trust doctrine and protect its resources whenever feasible. Lastly, the court found that the Board’s power to regulate actions affecting public trust resources was not limited by its statutory permitting authority.

Turning to SGMA, the court rejected the County’s argument that the legislature intended to occupy the field of groundwater regulation and “fulfilled” the State’s obligations under the public trust doctrine. The court stated that, in general, statutes do not supplant the common law, unless there is no rational basis for harmonizing potential conflicts between the two. The court agreed that an exception to general rule exists where the legislature occupies the field, but found, similar to the National Audubon court, that neither SGMA nor the public trust doctrine occupied the field, and both should be accommodated. The court also agreed with plaintiffs’ argument that SGMA is not as comprehensive a body of law as the appropriative rights system at issue in National Audubon. Nor was there evidence that the legislature intended SGMA to supplant or fulfill the public trust doctrine.

Lastly, the court addressed the County’s argument that, even if the State had a duty under the public trust doctrine, that duty did not fall to the County to fulfill. The court found that the general use of the term “state” can include counties, as subdivisions of the state. Further, such subdivisions share the State’s responsibilities under the public trust doctrine to protect covered resources. Nor did the legislature, in enacting SGMA, christen itself as the sole keeper of the public trust. The court rejected the County’s argument based on cases where the legislature “freed” certain tidelands from protections of the doctrine, because those cases involved the ownership of land, not the regulation of water. The court did not reach the question of whether the legislature could abrogate the Board’s authority under the public trust, but found that it had not done so through the enactment of SGMA.