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Implementation of Water Allocation Can Go Ahead with Old EIR

William W. Abbott, Abbott & Kindermann, LLP on
Jul 31, 2012

In November 2006, the Imperial Irrigation District, based upon a negative declaration, adopted an Equitable Distribution Plan (EDP). The plan was designed to provide for the equitable apportionment of water to users in the event of a supply/demand imbalance. The governing board approved the plan, which provided for a straight-line method of allocation among agricultural users during shortfall periods. Agricultural users were the largest users in the district, with industrial users making up a small percentage of the remainder. 

In 2007, IID adopted regulations implementing the EDP which provided more detail on allocations to non-residential users, including industrial. In adopting these regulations, the district relied upon the 2006 negative declaration. In 2008, the district adopted amended regulations, further refining the regulations. Language was added pertaining to new industrial water contracts. The district again relied upon the prior negative declaration, and relying in part on CEQA Guidelines 15162, concluded that no new environmental review was required. 

The petitioners then filed a CEQA challenge. The trial court denied the petition, determining that Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 was controlling, and under the traditional substantial evidence test (as compared to the fair argument test), ample evidence supported the district's decision to rely upon the prior CEQA document. Petitioners dismissed their other claims without prejudice, then appealed.

At the outset, the appellate court wrestled with the effect of the dismissal without prejudice of the remaining claims, asking whether or not there was a final judgment subject to appeal. Concluding that there were no remaining claims, the appellate court would treat the judgment as final and proceeded to consider the merits of the appeal. 

On the merits, the plaintiffs/ appellants first argued that Guideline Section 15162 was invalid as it facially applied to both EIRs and negative declarations, whereas the enabling statute, Public Resources Code section 21166 only pertains to EIRs. Relying on Benton, the appellate court rejected this challenge. Shifting next to the substantive CEQA claims, the appellate court applied the substantial evidence in assessing the IID's determination that there had not been a substantial change in the project requiring additional CEQA review. This is a factually intensive inquiry, and the appellate court compared the 2008 revisions to the regulations adopted in 2007. 

The primary area of legal debate centered on whether the 2008 amendments changed the priority of industrial users to the detriment of agricultural users. As a matter of regulatory interpretation, the appellate court concluded that the 2008 changes did not materially affect the priorities established in 2007. Pointing to the allocation of water to an industrial (geothermal) project in 2008, the opponents also argued that there had been a change in circumstances surrounding the project, necessitating an EIR. As framed by the opponents, the granting of the contract for a user of 6,000 or more annual acre-feet, in conjunction with the alteration in priorities, constituted the type of changed circumstances under CEQA necessitating an EIR. Having determined that there was no material change in allocation priority between 2007 and 2008, the court rejected this argument as well.

Comment: 

Picking the right second (or third) generation CEQA document requires a thorough understanding of the initial action along with the relationship of the second action to the first, and probably a little bit of luck. Abatti involved the evolution of a policy to an implementing regulation followed by a later regulation. The passage of the statute of limitations on the intermediate regulation positioned the district to take full advantage of Guidelines Section 15162. In contrast, consider the very recent scenario in Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156 where the lead agency was challenged in its transition from a general plan policy to an implementing regulation, and the appellate court rejected the use of a negative declaration following the earlier EIR.

The Case: 

James Abatti v. Imperial Irrigation District (April 26, 2012, D058329) ___ 205 Cal. App. 4th 650 ; 2012 Cal.App. LEXIS 496

The Attorneys: 

Downey Brand: Gregory Thomas Broderick, Stephen J. Meyer, Kevin M. O'Brien and Courtney S. Covington for Plaintiffs and Appellants. 

Allen Matkins Leck Gamble Mallory & Natsis,:Davis Leon Osias, David Duval Cooke, Jeffrey R. Patterson, Mark J. Hattam; and Jeffrey M. Garber for Defendant and Respondent