Wednesday, November 30, 2011

Webinar: Current Litigation on California Area of Origin Law

On Friday, December 2, at 12:00 p.m. PST, the Natural Resources subsection of California's Real Property Law section will offer an informative presentation by Jennifer Spaletta and Daniel J. O’Hanlon regarding current litigation on California area of origin law. Event participants will learn about pending efforts in state and federal court to apply statutes to give priority deliveries of Central Valley Project and State Water Project water supplies to area of origin users.

In addition to a brief overview of California area of origin law and its historical applications, participants will hear about Solano County Water Agency v. Department of Water Resources, currently pending in Sacramento Superior Court. In this litigation, Solano County Water Agency and other agencies who serve water to northern California communities located in areas of origin filed suit against the California Department of Water Resources. Counsel for plaintiffs will be on hand to explain arguments for having DWR operate the State Water Project to give plaintiffs priority to their full contract supplies before exporting water south.

Similar arguments in the federal litigation, Tehama-Colusa Canal Authority v. U.S. Department of Interior, will be discussed by counsel for defendant-intervenors in that case. In federal court, plaintiffs sought and were denied operation of the Central Valley Project that would give priority allocations to area of origin users before water is exported south of the delta. This matter is currently on appeal.

The event will be hosted at Kronick Moskovitz Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California 95814. To attend in-person, please email Lindsey Ono at

To participate via webinar, see Origin Law.

For more information regarding this webinar, please contact Eric Adair or the KMTG attorney with whom you normally consult.

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California Fish And Game Commission May List American Pika Under CESA

California's Fish and Game Commission recently declared the American Pika a candidate species under the California Endangered Species Act (CESA).

The Commission had rejected an earlier petition to list the Pika as threatened or endangered, but will now take up to 12 months to reevaluate the biological data and determine whether listing the Pika under CESA is warranted. The American Pika is an alpine species that lives virtually above the tree line in the Sierra Nevada and other high mountain ranges. It emerges only briefly in the summer to feast on budding alpine vegetation, and then survives harsh winters by hibernating deep within scree and boulder piles.

The petition to list the Pika cited global warming as the key threat to this species. The Pika, with its very fast metabolism, cannot withstand unseasonably warm summer temperatures. Unfortunately, data indicate that summer peak temperatures in the Sierra and other mountain ranges have been trending upwards toward the Pika's lethal tolerance level. Many point to climate change as the cause of the temperature trend, and some cite human greenhouse gas emissions and other activities as leading contributors to that change. What makes the Pika's potential listing under CESA so intriguing is that there really is no direct threat to the species from human activity due to its remote alpine habitat. Thus, listing it under CESA may be more symbolic than practical.  However, if the Pika is listed under CESA, some may use that listing to challenge various human activities that purportedly jeopardize the Pika indirectly by contributing to climate change in the Pika's native mountain habitat. There is no indication CESA was intended to address such a diffuse threat to a species, and the law is ill-suited to the task. But this may offer an avenue for certain groups to seek to use CESA to achieve these ends. The Pika's status and the Commission's forthcoming listing determination merit attention for this very reason.

The Department of Fish and Game will submit a written report within a year, pursuant to Section 2074.6 of the Fish and Game Code, indicating whether the petition to list the Pika is warranted. Written comments related to the petition should be directed to the Fish and Game Commission, 1416 Ninth Street, Box 944209, Sacramento, California 94244–2090.

The Fish and Game Commission's Notice of Findings may be found here, at page 1826.

For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Court Affirms Agency Discretion in Selection of Project Baseline Under CEQA

Pfeiffer v. City of Sunnyvale, a November 28, 2011, decision by California's Sixth District Court of Appeals, has added to the ongoing debate over the proper baseline from which to analyze project impacts under the California Environmental Quality Act (CEQA).

Several recent cases involving challenges to traffic analyses had suggested that a lead agency must use existing conditions as the baseline in all circumstances. In Pfeiffer, however, the Sixth District reaffirmed that lead agencies have some discretion to select the baseline or baselines, so long as the selection is supported by substantial evidence and furthers CEQA's goal of providing accurate environmental impact analysis and full public disclosure. Importantly, the case also reaffirms CEQA's requirement that challengers must do more than simply attack the chosen baseline method as flawed by providing evidence and explanation for why the selected baseline could distort the analysis of a proposed project's environmental effects. This should end the cookie-cutter baseline challenges that have been increasing since the new line of CEQA cases suggested that only existing conditions may serve as the baseline.

Pfeiffer also found that the lead agency's use of several baselines to represent current and future conditions was not erroneous because it provided the best assessment and disclosure of the full traffic impacts of the proposed project, and the lead agency had clearly explained its choice. In upholding the lead agency's choice, the court injected some reasonableness into what had begun to appear to be a rigid and inflexible approach to CEQA baseline selection. Such an inflexible approach was unsuited for particularly complex, unique, or other novel circumstances. CEQA practitioners should still be wary when selecting a baseline that differs from existing conditions.  Nonetheless, Pfeiffer provides support for selection of a different method when circumstances warrant, so long as that selection is explained, supported in the administrative record, and designed to lead to a full and accurate analysis and disclosure of the potential impacts of a project.

The court's opinion may be found here.

For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Saturday, November 19, 2011

Department of Water Resources Announces 60% Initial Allocation for 2012

California's Department of Water Resources announced yesterday an initial 60% allocation of requested deliveries to State Water Project contractors for 2012.

This initial allocation for the 2012 water year is a significant increase over last year's initial allocation of 25%, made in November 2010. With the significant rainfall and a near-record snowpack that followed, 2011's final allocation reached 80% of requests. In contrast, the final allocations for 2010, 2009, 2008, and 2007 were 50%, 40%, 35%, and 60%, respectively. The favorable initial allocation for 2012 is relatively high due to carryover storage from unusually wet conditions last winter. Even a normal winter will significantly increase yesterday's 60% allocation.

"We are off to a promising start for next year's water supply," said DWR Director Mark Cowin. "We are cautious not to be overly optimistic, but last winter's near-record snowpack and rainfall promises that even average precipitation this winter should give us adequate supplies for our farms, cities and businesses."

Lake Oroville in Butte County, the State Water Project's principal storage reservoir with a capacity of 3.5 million acre-feet, is at 80 percent of capacity with 2,825,422 acre-feet held in Lake Oroville. That is 130 percent of normal for the date.

A copy of DWR's November 18 press release may be found here, and the notice to State Water Project contractors may be found here. More information about the State Water Project contractors, including links to their water supply contracts, may be found here. Additional information may be obtained from DWR's Public Affairs Office.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Friday, November 18, 2011

Center for Irrigation Technology Releases Report on California Agricultural Water Use

The Center for Irrigation Technology at California State University, Fresno, has released its report on "Agricultural Water Use in California: A 2011 Update." A copy of the report may be found here.

According to its executive summary, the report "is a thorough review of published research and technical data as well as State of California publications to assess the overall potential for agricultural water use efficiency to provide new water supplies. The report found that little potential exists for new water unless large swaths of agricultural land are taken out of production, which technically is not water use efficiency." The report later explains that enhanced agricultural water conservation will never result in sufficient new water to solve the problems of water management or at least provide the volumes of water desired by all users in California.

The key findings of the report include:
  • The estimated potential new water from agricultural water use efficiency is 1.3 percent of the current amount used by the state’s farmers – about 330,000 acre-feet per year (at funding level PL-5 of the Department of Water Resources latest California Water Plan Update 2009). That represents about 0.5 percent of California’s total water use of 62.66 million acre-feet.
  • Groundwater overdraft of about 2 million acre-feet per year continues to be a serious problem in certain regions of California because of inconsistent and uncertain surface water supplies.
  • Changes in irrigation practices, such as switching from flood irrigation to drip, have the effect of rerouting flows within a region (or basin) but generally do not create new water outside of the basin.
  • Previous reallocations of agricultural water supplies for environmental purposes represent at least 5 percent of farm water diversions depending on water year.
  • On-farm water conservation efforts can affect downstream water distribution patterns, with potential impacts on plants and animals, recreation, as well as human and industrial consumptive uses. The effects can be positive or negative and also inconsistent (e.g., on-farm conservation could reduce a city’s water supply but improve the nonpoint source situation).
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Friday, November 4, 2011

North Coast RWQCB CEQA Scoping Meeting and Workshop Scheduled for November 8

The North Coast Regional Water Quality Control Board has scheduled a CEQA scoping meeting and workshop for November 8, 2011, to consider a proposed amendment to add an Aquatic Ecosystem Restoration Policy ("AERP") to the Water Quality Control Plan ("Basin Plan") for the North Coast Region.

Regional Board staff is a proposing a Basin Plan amendment that will demonstrate the support of the Regional Board for the use of aquatic system restoration as one of several existing tools to be used in the restoration and maintenance of the chemical, physical, and biological integrity of the region’s waters. Staff has proposed the AERP to set forth eligibility criteria and provide a description of the process for obtaining (1) an exemption from certain discharge prohibitions and/or (2) authorization for discharges that may cause temporary exceedances of certain water quality objectives.

The November 8 workshop will be held from 9:00 a.m. to 11:00 a.m. at the Trinity Public Utilities District Office located at 26 Ponderosa Lane, Weaverville, California.

The deadline for comments on the CEQA scoping document is November 18, 2011. Comments must be mailed to:
North Coast Regional Water Quality Control Board
5550 Skylane Blvd., Suite A
Santa Rosa, CA 95403
Attn: Alydda Mangelsdorf
Comments may also be sent by email to:

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related documents:

EPA Announces Final Study Plan to Assess Hydraulic Fracturing

On November 3, 2011, the EPA announced its final research plan on hydraulic fracturing, or fracking, a drilling methodology designed to recover natural gas and oil from deep shale formations by injecting water, sand and chemicals to break apart the rock formations and release hydrocarbons.

EPA announced in March 2010 that it would conduct a research study to investigate the potential impacts of hydraulic fracturing on drinking water resources, under direction from Congress in its fiscal year 2010 Appropriations Committee Conference Report. EPA published a draft plan on February 7, 2011. The plan has now been finalized following a series of public meetings and a review conducted by the Science Advisory Board. EPA's response to specific Board comments may be found here.

As stated in the research plan,
The overall purpose of this study is to elucidate the relationship, if any, between hydraulic fracturing and drinking water resources. More specifically, the study has been designed to assess the potential impacts of hydraulic fracturing on drinking water resources and to identify the driving factors that affect the severity and frequency of any impacts. Based on the increasing development of shale gas resources in the US, and the comments EPA received from stakeholders, this study emphasizes hydraulic fracturing in shale formations.
Study results are expected to be released publicly in 2012. At that point, EPA expects to have results from data analysis, modeling and retrospective case studies available to inform a preliminary assessment of potential impacts of hydraulic fracturing on drinking water resources. The final report is expected in 2014, when EPA will have additional results from data analysis and modeling, as well as additional laboratory and case study results to expand its assessment.

More detail on hydraulic fracturing may be found on EPA's website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

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OCAP Annual Independent Science Review Panel to Convene November 8-9, 2011

The 2011 Operations Criteria and Plan ("OCAP") annual independent science review will take place on November 8-9, 2011, in Sacramento. The meeting announcement and agenda, with instructions on participating via the internet, may be found here.

Under the auspices of the Delta Science Program ("DSP"), an independent science panel comprised of various academics and experts will convene to review the implementation of the OCAP for the prior year’s operations. The purpose of the review is to provide critical information to the National Marine Fisheries Service ("NMFS") and the U.S. Fish and Wildlife Service ("FWS") about the effectiveness of the prior year’s water operations and regulatory actions. NMFS and FWS have issued biological opinions and reasonable and prudent alternatives ("RPA") on the long-term operations of the Central Valley Project and State Water Project relative to salmonids and smelt, respectively. The agencies have requested that the DSP convene the panel to provide a technical review on the implementation of the biological opinions and RPAs. The specific charge to the panel may be found here.

The panelists are:
  • James Anderson, Ph.D., University of Washington
  • James Gore, Ph.D., University of Tampa
  • Ron Kneib, Ph.D., RTK Consulting & University of Georgia (Emeritus)
  • Mark Lorang, Ph.D., University of Montana
  • John Van Sickle, Ph.D., U.S. Environmental Protection Agency’s Western Ecology Division
The annual review will be conducted Tuesday, November 8, from 9:00 a.m. to 5:00 p.m., and Wednesday, November 9, from 2:00 p.m. to 5:00 p.m. Both days' sessions will take place at 650 Capitol Mall, Stanford Room (first floor), in Sacramento. Sessions should be available on the internet.

Copies of all materials for the annual review, including review materials and background information, may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Delta Stewardship Council Releases Draft Environmental Impact Report for Delta Plan

As we reported yesterday, the Delta Stewardship Council has released the draft Environmental Impact Report ("EIR") for the Delta Plan. The EIR is now available on the Council's website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

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Thursday, November 3, 2011

Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4

The Delta Stewardship Council issued a public notice today advising that the Delta Plan Environmental Impact Report ("EIR") will be released tomorrow, November 4, 2011.

The Delta Plan, a mandate of SBX7-1 of California's landmark 2009 water legislation, requires that the Council develop, adopt and carry out a comprehensive long-term management plan for the Delta (“Delta Plan”). The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State. It must also include recommendations promoting statewide water conservation, options for new and improved infrastructure relating to water conveyance in the Delta, and in-Delta disaster and risk reduction considerations.

According to the Council's public notice,
[T]he Delta Plan sets forth regulatory policies, and recommendations, that seek to influence the actions, activities and projects of cities, counties, and State, federal, regional and local agencies toward meeting the goals in the five topic areas. Examples of the types of actions/activities the Delta Plan seeks to influence include, but are not limited to: new or expanded water storage reservoirs; wetlands and riparian restoration; invasive species management; water flow patterns in the Delta; water, wastewater, stormwater and agricultural runoff water treatment; levee modification and construction; floodplain expansion; new/improved active and passive recreation opportunities in the Delta.
The draft Delta Plan is the proposed project to be evaluated in the EIR. The EIR will be available online at the Council's website, and we will also post a link to the EIR here on the blog.

The Council will accept public comments on the Delta Plan EIR until January 3, 2012. Comments may be sent via regular mail to "EIR Comments", Delta Stewardship Council, 980 Ninth Street, Suite 1500, Sacramento, California 95814. Comments may also be submitted electronically through the Council's website or via email with the subject line “Draft EIR” to

The Council will also accept public comments, either in writing or orally, at two meetings:
Thursday, November 17, 2011
1:00 p.m. to 4:30 p.m.
Sheraton Grand Hotel, 1230 J Street, Sacramento

Thursday, December 15, 2011
1:00 p.m. to 4:30 p.m.
California State Capitol, Room 447, Sacramento
A PowerPoint presentation prepared by the Council on the status of the development of the EIR may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

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Tuesday, November 1, 2011

United States Supreme Court Declines To Review Commerce Clause Challenge To Delta Smelt Biological Opinion

On October 31, 2011, the United States Supreme Court rejected a petition for certiorari by several San Joaquin Valley farm companies in Stewart & Jasper Orchards v. Salazar, et al., a case partially consolidated with the Delta Smelt Consolidated Cases.

The Ninth Circuit Court of Appeals had previously rejected an argument by Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistachio Grove that application of the federal Endangered Species Act (ESA) violated the Commerce Clause. The Ninth Circuit determined that "the protection of threatened or endangered species implicates economic concerns." Accordingly, the lower appellate court rejected the farm companies' argument that Congress lacked the authority to impose environmental restrictions under the ESA because the delta smelt were strictly an intrastate species. Yesterday's Supreme Court's decision leaves the Ninth Circuit's earlier ruling intact.

If you have any questions concerning this matter, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Additional coverage may be found on the Pacific Legal Foundation's website.

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