Brownstein Hyatt Farber Schreck Secures Much-Needed Access to the Colorado River for the San Diego County Water Authority

Brownstein Hyatt Farber Schreck Secures Much-Needed Access to the Colorado River for the San Diego County Water Authority

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Sacramento Superior Court Judge Lloyd G. Connelly recently validated the 2003 Colorado River Quantification Settlement Agreement (QSA) and 11 related agreements and rejected all of the remaining legal challenges to the landmark accord. The ruling secures a key component of water supply for Brownstein Hyatt Farber Schreck’s client, the San Diego County Water Authority (SDCWA), which will receive 180,000 acre-feet of more reliable water this year as result of the QSA and related agreements. For California, Judge Connelly’s decision provides certainty about access to its basic annual apportionment of 4.4 million acre-feet of water from the Colorado River. This decision also settles longstanding disputes among California water agencies that obtain water from the Colorado River. Beyond California, it provides a framework for securing lasting peace between California and the other Lower Basin States (Arizona and Nevada) and the Upper Basin states (Colorado, Wyoming, Utah and New Mexico). Also important, the QSA lessens California’s overdependence on the river by providing for the conservation, exchange and transfer of Colorado River water within California and for other supply programs designed to bring California within its 4.4 million acre-feet basic annual apportionment.

For the last 15 years, Brownstein’s Natural Resources group has played an integral role in both the QSA negotiations and litigation. Scott Slater and Chris Frahm led the QSA negotiations on behalf of SDCWA. Then, utilizing unmatched knowledge and experience with the California Environmental Quality Act (CEQA), Liz Rothman and Amy Steinfeld led litigation efforts, including two trials and three trips to the Court of Appeal, which resulted in Judge Connelly’s decision validating the 2003 QSA.

Brownstein’s CEQA experience was front and center in this trial as indicated in the trial court decision and its reliance on the firm’s briefs on key contested and cutting-edge issues. The use of a “future” baseline to take into account the ongoing decline of the Salton Sea while accurately ascertaining potential project impacts on the Salton Sea over the life of the QSA project was heavily contested, litigated and decided while the issue is pending before the California Supreme Court. Brownstein’s briefs and arguments on this issue were a key basis for the decision. The decision similarly adopted the firm’s analysis for the issue of first impression - whether a more reliable water supply for the San Diego area is inherently growth inducing for development where California requires demonstration of a 20 year water supply as a prerequisite for large commercial and residential development approvals.

“This victory allows the citizens of California to live within the state’s basic apportionment of Colorado River water, which is critical not only for our client, which receives a large portion of its water supplies from these transfers, but also for the stability of Southern California’s water supply and other states that rely on the river,” said Rob Saperstein, co-chair of the firm’s Natural Resources department. “The magnitude of this case demonstrates that our team has the expertise to succeed in dire environmental cases, particularly ones that focus on legal issues under CEQA.”

CEQA IN THE SPOTLIGHT

The QSA was finalized in October 2003, providing California with the means to implement water transfers and supply programs that allow the state to live within its basic annual apportionment from the Colorado River. The first trial focused on the validity of the agreements, and judgment invalidating the agreements was entered on narrow constitutional grounds. In December 2011, Brownstein (along with other lawyers representing the QSA contracting parties) had another victory: California’s Third District Court of Appeal reversed the lower court's ruling that had invalidated the Imperial Irrigation District (IID)-SDCWA water transfer and a number of other QSA agreements. However, the Court of Appeal remanded several issues to the trial court, including questions about whether the agreement was properly approved, as well as all issues under CEQA.

The focus of the most recent trial was on the challenges to the environmental reviews conducted under CEQA for the QSA Program and the IID-SDCWA Transfer. Judge Connelly’s decision upheld use of a future baseline for water projects, use of co-lead agencies for the QSA Program, and use of qualitative analysis of air-quality impacts when data is not available and found that providing a more reliable water supply is not inherently growth inducing. Further, the court rejected all of the claims asserted by the QSA opponents and found that environmental reviews conducted by the water agencies fully complied with CEQA. The court found that Coachella Valley Water District, IID, SDCWA and Metropolitan Water District of Southern California (1) serving as co-lead agencies in preparing the Program Environmental Impact Report (EIR) complied with CEQA, (2) appropriately used a future baseline in assessing the QSA’s potential impacts on the Salton Sea, (3) properly defined and assessed the “no project” alternative for the QSA, (4) evaluated a reasonable range of alternatives to the QSA, (5) correctly assessed the Transfer Project’s potential growth-inducing and air-quality impacts, and (6) properly used an addenda to document certain minor changes that were made to the Program EIR and Transfer EIR.

Most notably, this trial court recognized that a lead agency has discretion to establish a baseline to measure environmental impacts and that “neither CEQA nor the CEQA Guidelines mandate a uniform, inflexible rule for determination [of] the existing conditions baseline.” (Decision, p. 31) The trial court cited SDCWA’s trial brief in explaining that, to accurately assess the Project’s impacts on the Salton Sea, “it was necessary and appropriate for the EIR to use a baseline which took into account both existing conditions and existing trends in the Sea’s hydrology during the term of the project…” (Decision, p. 32) The trial court also found that securing a more reliable replacement water supply is not inherently growth inducing and that SDCWA’s use of transferred water to meet existing and projected demand could not induce growth because SDCWA has no land-use planning responsibility. (Decision, pp. 40-42) Further, the trial court found that although case law under CEQA does not appear to have addressed the validity of using co-lead agencies, here, the use of co-lead agencies was well supported factually because “each [of the water agencies] had a direct and substantial interest in achieving the goals and objections of the Program…and no one…had overall responsibility for implementing the components.” (Decision, p. 50).

In his June 4, 2013, ruling, Judge Connelly affirmed all of the contested actions, including the adequacy of the environmental documents prepared by the IID and other water agencies to enter into the suite of agreements that comprise the QSA. For additional background on the QSA or to read Tuesday’s ruling, go to www.sdcwa.org/quantification-settlement-agreement.

“This is a momentous victory for California, and especially for our economy and quality of life in San Diego County,” said Thomas V. Wornham, chair of the SDCWA’s Board of Directors. “The Colorado River Quantification Settlement Agreement and its cornerstone water transfer agreements mean long-term water security for our region’s $188 billion economy and the quality of life of 3.1 million residents.”

This document is intended to provide you with general information regarding CEQA. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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Amy M. Steinfeld Shareholder T 805.882.1409 asteinfeld@bhfs.com