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A challenge by dissident conservationists to the Lake Tahoe Regional Plan Update is in the hands of U.S. Judge John A. Mendez following oral arguments in Sacramento March 26. The arguments put a bookend to a fierce, prolonged exchange of court papers heavy with mutual exasperation, between parties who may disagree more utterly than most. The Sierra Club and Friends of the West Shore, plaintiffs in the litigation, are holdout critics of the 2012 Regional Plan Update (RPU), which forms the centerpiece of a major political and regulatory settlement on California and Nevada officials' shared environmental governance of the Lake Tahoe basin. (See http://www.cp-dr.com/articles/node-3435.) Based on claims that the RPU erodes previously established scientific standards, the Sierra Club plaintiffs have been contesting its validity in federal court for the past year. The Tahoe Regional Planning Agency (TRPA), as defendant in the litigation, is being pressed to justify the work of negotiators at many levels, including some Tahoe Basin conservation leaders, who put years of effort into crafting the RPU. The Sierra Club plaintiffs depict TRPA as soft on developers; TRPA depicts the plaintiffs as destructive perfectionists. According to the Tahoe Daily Tribune (See http://www.tahoedailytribune.com/news/10781943-113/plan-lake-tahoe-trpa) and a statement released by TRPA, the oral arguments themselves addressed well-established themes in the briefing. Mendez will now decide competing motions for summary judgment that could very possibly end the case. Fractious briefing The lawyers exchanged indignantly phrased briefs through early 2014, taking extra bites at each other's arguments by filing oppositions to amicus briefs and judicial notice requests. TRPA's counsel tried during the last week before the hearing to gain an extra edge from two recent high-profile cases in which courts trusted agencies' judgment on environmental plans. One was Judge Jay Bybee's call for deference to administrative-branch expertise in the Ninth Circuit's Delta Smelt decision  (See http://www.cp-dr.com/articles/node-3448). The other was the California Second District's choice to accept "adaptive management" of the endangered spineflower in proposed Newhall Ranch development areas. (See http://www.cp-dr.com/articles/node-3461 and Center for Biological Diversity v. Department of Fish and Wildlife at http://www.courts.ca.gov/opinions/documents/B245131.PDF.) Judge Mendez did not focus on the two new cases. TRPA's John Marshall answered an email query: "The recent cases were not discussed at the oral argument". Earthjustice's Wendy Park answered a parallel query: "The Judge only commented at the beginning of the hearing that argument on those two cases was not necessary since they were only marginally relevant (they'd be "the last case in a string cite")." Invited to respond to Park, TRPA spokesman Jeff Cowen wrote: "TRPA has no response to the statement." In earlier 2014 briefing, TRPA, joined in an amicus brief by the California and Nevada natural resource agencies, suggested the difficulty and extent of the bi-state public process that created the RPU was itself an argument for the RPU's validity. Plaintiffs countered that the court's review was limited to the legality of TRPA's proceedings and the adequacy of supporting evidence. In late February the plaintiffs quoted a warning out of Laurel Heights v. UC Regents , 47 Cal.3d 376 (1988), against the risk that "bureaucratic and financial momentum" would overrun "environmental concerns that could be dealt with more easily at an early stage." Otherwise TRPA continued to defend the Regional Plan Update as a pragmatic shift toward regulation via incentives for environmental retrofitting and reduction of ground coverage via denser redevelopment. Supporters of the RPU have argued that its new frameworks for regulation are based on scientific advances and physical changes in the lake basin's environmental needs that have appeared since the prior Regional Plan's 1987 approval. (See http://www.cp-dr.com/articles/node-3435.) Disputes in the 2014 briefing included whether the RPU would provide adequately for ongoing enforcement of required Best Management Practices (BMP) on developed properties, and whether the lake's Total Maximum Daily Load (TMDL) standards would be either strict enough or sufficiently enforceable, especially on the Nevada side and in areas where local jurisdictions would be taking over enforcement tasks. In an argument that TRPA may have meant to answer by quoting the Newhall Ranch spineflower decision, the plaintiffs claimed in a January brief that TRPA's "adaptive management" approach to BMP enforcement "amounts to possibly reacting to worsened conditions (in an unspecified manner)" instead of getting ahead of them. TRPA retorted in its papers that the standards were real, sufficient and sufficiently enforceable to improve on current conditions, complaining meanwhile that "Plaintiffs persist in failing to distinguish between TRPA's BMP Retrofit Program for existing legacy development, and BMPs required for new development or redevelopment." TRPA further accused plaintiffs of "ignoring an overwhelming scientific and technical consensus" supporting the TMDL "load reduction credits" system of regulation, and of cherry-picking both laws and regulations to find fault. Plaintiffs argued in their series of briefs that TRPA hadn't sufficiently studied the true likely effects on runoff and soil from the RPU's incentives for developers to restore properties in fragile areas and transfer development credits to town center areas. TRPA accused plaintiffs of shifting ground improperly by leading with a water quality analysis in their opening brief, then shifting emphasis to soil conservation arguments in later papers. TRPA argued the EIS had met the necessary standard on soil conservation because it modeled and analyzed "potential impacts on nutrient cycling" and discussed effects on vegetation and on fish habitat. Plaintiffs wrote that "'Redevelopment' Means More Development" and predicted the RPU would allow "183 more acres of coverage region-wide" and that "the transfer of 960 development rights from... undeveloped and undevelopable parcels to developable parcels located in centers" would increase overall construction. Plaintiffs disagreed with a group of business and real estate amici on whether a new "resort recreation" designation of 315 acres of prior "recreation" lands at the Edgewood and Heavenly resort properties would expand urban boundaries. On the contrary, in its press statement about the March 26 oral arguments, TRPA reiterated its position that "The Regional Plan will result in less impervious land coverage in the Basin, more open space, and will accelerate the removal of legacy land coverage from sensitive lands." As for ozone monitoring, said by the plaintiffs to be neglected under the RPU (their January brief said there were no monitors at all in South Lake Tahoe), TRPA replied in its papers that the RPU would reduce vehicle use, that auto emissions standards have caused ozone levels to decline, and that more monitoring is not required by law. TRPA's statement quoted Executive Director Joanne Marchetta as saying, "We all want Lake Tahoe to continue to be one of the most protected watersheds in the nation and our plan will do that... This litigation boils down to how we balance strong environmental protections with the need to upgrade existing development that is impacting the Lake." The Tahoe Daily Tribune reported Judge Mendez took the case under submission without specifying a date for his decision.

The proposed 60,000-population Newhall Ranch development began a recent winning streak with an LA Superior Court ruling Jan. 31 on water supply adequacy and greenouse gases in the project's Phase 1 EIR – as reported in a Santa Clarita Valley Signal news story whose comments section reflects fierce local debate: http://www.signalscv.com/section/36/article/113952/. In another decision that supports the project, the Castaic Lake Water Agency's recent acquisition of the Valencia Water Company received a PUC approval in February per documents made available at http://bit.ly/1j90b8v by an opponent of both decisions, Santa Clarita Organization for Planning the Environment (SCOPE). In early March, environmental and tribal groups filed a federal suit contesting Clean Water Act approvals by the Army Corps of Engineers and EPA based on potential environmental effects and potential intrusion on Chumash heritage and burial sites. For details see the LA Times at http://lat.ms/1gDxhW8 and the site of one of the plaintiffs, Friends of the Santa Clara River, at http://www.fscr.org/html/newhall.html. And then on March 20 California's Second District Court of Appeal backed the Newhall Land and Farming Co. by upholding a state Fish and Wildlife environmental impact statement that favors the project over objections from a similar group of plaintiffs, who said they would likely seek state Supreme Court review. The decision is at http://www.courts.ca.gov/opinions/documents/B245131.PDF and further details at http://lat.ms/1imoY5D. Water board adjusts flow in farmers' favor but zero allocation still predicted Over environmentalists' objections, the State Water Board issued orders March 18 allowing more Delta water to flow to farmers, and less out of the Delta, though it did not end the zero allocation forecasts of the Department of Water Resources and Bureau of Reclamation. The Sacramento Bee has details at http://bit.ly/PPsr3o. The orders themselves are on the State Water Resources Control Board site at http://bit.ly/1esWgiI. Also in the news: The California State University system has chosen not to build a new campus at the Concord Naval Weapons Station. The Contra Costa Times has news of other redevelopment plans at http://bit.ly/Nxi1DX. Los Angeles City Planning released its Draft Mobility Plan in mid-February, opening a comment period that ends May 13, 2014. See http://la2b.org/. The L.A. Dept. of Water and Power, Sacramento and parts of the Metropolitan Water District are all paying homeowners to remove their lawns. See, respectively, http://lat.ms/1nCGjqV, http://bit.ly/1jRKxex and http://www.socalwatersmart.com/index.php/qualifyingproducts/turfremoval. San Francisco's Measure B, which would subject all future waterfront height limit variances to referenda, survived a court challenge, keeping its place on the June 3 county ballot, but its campaign manager, Jon Golinger, was in hot water for trying to become the author of the official arguments both for and against the measure that he in fact supported. See http://bit.ly/1lVgxPt and http://bit.ly/1d6oama. The L.A. Board of Supervisors has approved the proposed Local Coastal Program (LCP) for the Santa Monica Mountains, which has languished in part-drafted form since 1986. As the Malibu Times reports at http://bit.ly/1iJf8LX, Zev Yaroslavsky wrote a furious response to local critics at http://zev.lacounty.gov/blog/exposing-a-mountain-of-deceit. The plan still awaits final Coastal Commission adoption. For the LCP see http://planning.lacounty.gov/coastal.

A generation ago, moratoriums on new water hookups were important to the statewide land use picture in bad drought years. During 1991, new hookups were banned in some large southern and coastal California cities and all of Marin County. Santa Monica made developers mitigate new hookups by buying low-flush toilets for existing users. The Metropolitan Water District suspended annexations. Not so in 2014. As this year's drought deepens, urban water systems are in general keeping new hookups available. Not necessarily because there's more water, but thanks to improvements over the past two decades in planning and connectivity. As every day's news attests, the drought is slamming agriculture, natural habitats, and small water districts that are poor, awkwardly placed, or under-connected. Wood chips from uprooted almond trees have reportedly poured in to power plants as fuel. But meanwhile, like a cozy kitchen in a tumbledown house, the urban centers hold steady. Some urban districts that are enforcing strict conservation measures are also looking at new annexations and subdivisions without blinking. People do still ask where the water's coming from for new large developments. It seems possible, however, that drinking-water supply for expanding urban footprints may have lost some importance as grist for development debates compared with the days of the big moratoriums. This year it is rare to find municipal districts suspending new water connections specifically as a response to the current dry season. An extensive if unsystematic search by phone and Internet found only two: the posh suburb of Montecito, next door to Santa Barbara, and Willits in the parched Mendocino County interior. Some districts, mostly small, banned new hookups long before the current drought: Bolinas since 1971, Cambria since 1990, Redwood Valley, with very occasional relief, since 1989. Customers of California American Water in the Monterey Peninsula Management District are under a moratorium on water permits for new construction and remodels, addressed in a current proposed bond bill, SB 936: http://legiscan.com/CA/text/SB936/2013. Brooktrails Township – a community services district near Willits – is probably not alone in having no need to ban new connections. It has had 24 connections available since a state-imposed moratorium ended in 2010, but district staff member Elizabeth Simpson said there were no takers. Connection fees are $23,711 apiece. Other districts, including Solvang and Nipomo, have discussed moratoriums but aren't there yet. Reflecting a contrast between municipal and rural/agricultural pressures, Paso Robles has banned new private wells, including for houses, because of groundwater depletion pressures that have a lot to do with vineyards. The city has not stopped new connections to municipal pipes. Its contingency plan would impose a hookup moratorium at the strictest stage of water crisis but Planning Manager Susan DeCarli said: "That would be a long way out from here now." In the Redwood Valley County Water District of Sonoma County, general manager Bill Koehler said the district had about 120 days of stored water. He said whether it would last depended whether the vineyards that sustain the local economy required spraying for protection from more than one or two frost events in the next few weeks. And yet, the list of some 200 local conservation measures compiled by the Association of California Water Agencies at http://www.acwa.com/content/local-drought-response shows no large districts banning water for new development as of March 20. So what exactly is different since 1991? Water and infrastructure expert Ellen Hanak, co-director of research at the Public Policy Institute of California, wrote: "The difference is that there have been major strides in drought planning and resiliency investments since then. The 1987-92 drought really marked the beginning of many of the practices that have become very important for the modern approaches to modern water that most large urban agencies now subscribe to."   In an interview, Hanak said the water year (from a statewide perspective) was looking like about the fourth-driest on record, about a "30-year drought." That is, a level of drought already planned and accounted for in long-term water management plans. Her comments, and other recent PPIC publications, viewed the drought as a crisis mainly for agriculture, the environment, and remote rural towns "not connected to a larger grid". Urban systems, she said, were "mostly in very good shape during this drought" though it was further encouraging long-term planning, especially to increase physical connections among existing systems to allow sharing. Hanak recently coauthored a PPIC report on "serious funding gaps" affecting California water systems, including drinking water contamination in small, poor agricultural towns: http://ppic.org/main/publication.asp?i=1086. The report saw a shortage of funds for other ordinary water management such as responses to floods, storm and other runoff, ecological conservation, and coordination among systems. In an email exchange, Hanak demurred to the blanket suggestion that urban water systems' strength might make water supply less of a constraint on growth. She wrote: "I think there's potential for things to fall more through the cracks in some places that are growing fast from a smaller base – planning and often supply diversification actions are likely to be less well-established." She declined to name any particular district as one for concern, writing that her comment was based on a statistical analysis in the mid-2000s "where we found that places that were growing faster and that had smaller water agencies were less likely to be complying fully with all the requirements of the Urban Water Management Planning Act," also noting that "communities with fewer than 3,000 service connections don't actually even need to prepare urban water management plans." Urban Water Management Plans (UWMPs) are required of more than 400 urban water districts every five years, with the next revisions due in 2015. Large new developments must additionally meet "show me the water" requirements under Senate Bills 221 and 610 of the 2001 session. An SB 610 "Water Supply Assessment" is required for any project with more than 500 housing units or hotel rooms, work space for more than 1000 people, business space on a similar scale, or a 10% increase in the local district's total hookups. The overlapping SB 221 requires "Verification of Sufficient Water Supply" for approval of a tentative map, parcel map or development agreement for a similar-sized project, with exemptions for infill or low-income housing. Both standards require water planning for the next 20 years that anticipates expected population increases and recurrences of known types of drought periods: http://www.water.ca.gov/urbanwatermanagement/SB610_SB221/. Among local development disputes it is difficult to find substantive connections being drawn between the current drought's effects and projects that have had to pass reviews under SB 610 and SB 221. Jonas Minton of the Planning and Conservation League said requirements such as SB 221 and SB 610 are determined to be satisfied relatively easily. The laws "have had very little effect to date," he said. Despite a few court cases involving egregious cases of ignoring water supply concerns, he said developers generally have managed to satisfy authorities that a 20-year water supply exists. He said analyses for such purposes are based on "a short record" of the last 150 years, which may not reflect all possible conditions. But like Hanak, he said forecasts for frightening drought effects "overstate the reality that we're finding this year" and most urban areas would not suffer dire water shortages. City of Folsom Minton pointed to the "very development-friendly" city of Folsom as the scene of a land annexation whose planned water supply "was semi-theoretical, a bunch of water wonks arguing about that." The city's main water source, Folsom Lake, this winter left so much of its lake bed exposed that tourists wandered the temporary mudflats admiring ruins from the Gold Rush: http://bit.ly/1fGZD82. Folsom's South of Highway 50 annexation covers land in which developer Angelo Tsakopoulos was a major initial investor. The 2010 UWMP predicted this "Folsom Plan Area" (FPA) would gain population from zero in 2010 to 24,335 in 2035. Water supply was important in local controversy over the annexation, including a contentious 2004 election season. That year voters approved developer-sponsored Measure W, which allowed the annexation if existing residents' water rights and rates were protected. The FPA passed its SB 610 review around 2009. Folsom then planned to serve the new area by purchasing water rights from the Natomas Central Mutual Water Co.: http://bit.ly/PVtnTL; http://bit.ly/1gEsh3F. The Local Agency Formation Commission (LAFCo) approved the annexation in January 2012. Later in 2012, plans for the FPA's water supply shifted. City spokeswoman Sue Ryan responded to questions about that by sending the first 100 pages of a staff report supporting two approval resolutions that the City Council passed in December 11, 2012. (The report is downloadable from Item 8a on the 12/11/12 agenda at http://www.folsom.ca.us/agendas/.) The resolutions agreed that instead of using the Natomas water rights purchase to bring water from the Sacramento River (which had run into "uncertainties" about Bureau of Reclamation approval), an existing water entitlement would be transferred south from the East Area and supplemented with water saved through conservation while the developers paid for new infrastructure. The East Area's demand would be met with conservation savings and, if necessary, water purchases based on "a Sacramento County Water Agency contract with the U.S. Bureau of Reclamation, known as the Fazio Water Supply." As of summer 2013 the Sacramento Bee reported the developers would spend some $52 million to move and treat water for new properties out of the city's existing supply: http://bit.ly/1ggUvaD. There was an indignant discussion about that on the Tomatopages community site at http://bit.ly/1hK52I3, especially asking if the transfer of water rights infringed Measure W, but that's where the matter appears to have rested. Marcus Yasutake, who became Folsom's environmental and water resources director in summer 2013, described the year's drought, not as an all-out disaster, but as a data point and opportunity to teach conservation habits. In an interview that did not address technicalities or politics, he said the city was not in a situation to suspend new permits or connections. "Doesn't mean we won't ever be." He said, "I'm sure at some point in time 2013 will be included as a drought year from a planning perspective because we haven't gone through anything like 2013". He said "typically people look to the '76-'77 years," which at the time were "the worst on record, and now we have something that was even below that. So, the requires us to look at those drought type of years and to identify reduction or other supply alternatives." He said conservation measures under the 2010 UWMP included finding and patching leaks -- locally difficult because water easily seeps through cobbles left by Gold Rush dredging -- and an end to unmetered flat-rate water supply. Residential water meters began use in January 2013. Asked if there were any concerns about the water promises made in the annexation approval process being kept, Yasutake said it would take a drought years worse than the current one to trouble the water supply to the annexed area. Paso Robles Though facing a groundwater shortage and currently banning new wells, Paso Robles is not stopping two proposed annexations and a request for a General Plan change to allow further buildout. Planning Manager Susan DeCarli said recently begun construction will give the city better access to purchased water from Lake Nacimiento and the city also has had conservation successes, in part by replacing flat-rate billing with graduated rates. She said, "We have enough water capacity to withstand our full development buildout," which calls for population expansion from 30,000 to 45,000. "So as new developments are proposed, it's confusing to people," she said, because there are heavy restrictions on use of groundwater at the same time. The grandest proposed expansion, the Paso Robles Gateway development, calls for three hotels, houses and vineyards. DeCarli said given the "heightened sensitivity to water resources" the developers voluntarily agreed to do a Water Supply Assessment -- "they didn't argue" -- and planned to buy their own Lake Nacimiento water. "It's going to be a major issue when they go to LAFCo", she said. Did better planning help in such arrangements? she said it did help to direct new development to urbanized areas. "You can manage urban water to make sure you've got services."

With $1.54 billion already spent on California carbon emission rights, debate continues on whether the state's cap-and-trade auction process is valid and what the auction proceeds are for. The Legislative Analyst's Office (LAO) has repeatedly questioned Gov. Jerry Brown's proposed uses for an expected $850 million in annual revenue from cap-and-trade auctions of greenhouse gas (GHG) emission allowances. While Brown's proposals do support projects related to air quality, LAO has asked if they will achieve the best GHG reductions available for the money. LAO lays out and critiques Brown's proposals in a February 24 report at http://www.lao.ca.gov/Publications/Detail/2953. It urges the Legislature to have the Air Resources Board set standards for state departments to use in deciding what programs would reduce GHGs most effectively. Of interest to local planners is that, per the February 24 report, Governor Brown's proposals would include $100 million in each of the next two fiscal years to support transit-oriented development programs related to SB 375 compliance, to be administered by the Strategic Growth Council, including possibly for grants to local governments' projects. These funds would replace the funds previously provided by Proposition 84, which will run out after this year. The LAO has been chivvying Brown on his proposed uses cap-and-trade proceeds since January, especially on his proposal to spend up to one-third of each year's proceeds on high-speed rail construction. LAO's January 13 report on the budget proposal at http://lao.ca.gov/reports/2014/budget/overview/budget-overview-2014.aspx called the use for high-speed rail "legally risky". As the Sacramento Bee noted at http://bit.ly/1cvGNuc, the Feb. 24 LAO report said high-speed rail construction "would actually generate GHG emissions of 30,000 metric tons over the next several years." Similar objections appear in a March 6 transportation report at http://www.lao.ca.gov/Publications/Detail/2966. Brown's proposals have drawn mixed reviews from others too, as discussed in StreetsblogLA at http://bit.ly/1gGYkA8 and the LA Times at http://lat.ms/1g9dJyA. Per the LAO, the Governor's budget proposal would divide cap-and-trade money among 23 program components run by 11 departments and boards. The High-Speed Rail Authority would get $250 million in the coming fiscal year, and then 33% of all cap-and-trade revenue from 2015-2016 on. The Air Resources Board would get funding to administer the cap-and-trade program itself plus $200 million in each of the next two years for clean transportation. As noted, there would be the $100 million in each of two years for the SB 375 programs. Other recipients would include low-income weatherization, upgrades to Caltrans and state buildings, waste emission reduction and recycling, water conservation, State Water Project generator efficiency, wildfire prevention and watershed restoration. Out of $500 million borrowed from past cap-and-trade income by the General Fund, the budget would pay back $100 million in the coming year. The report suggested these activities might not reduce GHGs optimally, or if they did, it might be through "activities that would have happened on the natural (meaning without the support of cap-and-trade auction revenues)." Instead, it urged using cap-and-trade income for ending the separate $40 million "Cost of Implementation" charge to polluters or funding energy storage efficiency, carbon sequestration or alternative fuels. The State Senate's Standing Committee on Budget and Fiscal Review discussed the Governor's proposals for the revenue February 13. Materials are at http://bit.ly/1f0KfxV. On March 19 the Assembly Budget Subcommittee on Resources and Transportation heard testimony on the Governor's proposals for the revenue. The Sacramento Bee's Dan Morain wrote up the appearance at this second hearing of "45 smart lobbyists and consultants" who each had ideas about how to spend the money. http://bit.ly/1gkVBRv. Steinberg's carbon tax proposal: rhetoric or literal legislation? State Senate president pro tem Darrell Steinberg has commented on Brown's proposals indirectly with a carbon tax proposal that, as the Mercury News commented at http://bit.ly/1dcbPx2, may be more rhetorical than legislative. Saying, "My attempt here is to stoke a debate," Steinberg proposed replacing the transportation fuels portion of the cap-and-trade system, which is expected to raise the cost of gas in 2015, with a carbon tax starting around 15 cents per gallon of fuel, rising in future years. His proposal would transfer most of the proceeds to households with incomes below $75,000 through a state earned-income tax credit, and would spend the rest on transit. Steinberg's initial statements on the tax are at http://bit.ly/1gEfKSl. The LA Times has more at http://lat.ms/1kZHUYG and http://lat.ms/1l1JGeD. Steinberg introduced a vaguely phrased version of the proposal as SB 1156: see http://bit.ly/1gMpJ4b. Auctions continue alongside litigation to stop them As of the most recent auction in February, which sold nearly $330 million in carbon permits, the Sacramento Bee reports at http://bit.ly/1hQg8Lz that California companies have spent $1.54 billion on greenhouse gas emission rights so far. The ongoing ARB auction page is at http://www.arb.ca.gov/cc/capandtrade/auction/auction.htm. However, the legality of the auctions themselves is still at issue. Chamber of Commerce official Loren Kaye noted in a blog post at http://bit.ly/1jiR68Z that notices of appeal are on file in California Chamber of Commerce v. California Air Resources Board, a Sacramento Superior Court case that upheld the existing auction system last year. The decision and pleadings are at https://services.saccourt.ca.gov/publicdms/Search.aspx under case number 34-2012-80001313.

Officials of Healdsburg and at least three smaller water districts have been trying to shed unwanted status as poster children for the California drought. In a January 28 press release at http://www.cdph.ca.gov/Pages/NR14-012.aspx, the Department of Public Health issued a list of 17 communities that it said were at risk for running out of drinking water. Since then, Healdsburg City Manager Marjie Pettus has been insisting she doesn't know why. Pettus said, "We believe that perhaps an assumption was made because our City Council took proactive measures and implemented a mandatory water conservation measure." But she and Planning Director Barbara Nelson said the early move to strict conservation was a stewardship measure, not a sign of immediate shortage. city of healdsburg was on the initial list of 17 water systems identified as at risk with drought-related water supply concerns... based on our initial survey. since that time, some systems, such as healdsburg, have been able to improve their situation, some with cdph assistance, and the concerns have reduced."> city of healdsburg was on the initial list of 17 water systems identified as at risk with drought-related water supply concerns... based on our initial survey. since that time, some systems, such as healdsburg, have been able to improve their situation, some with cdph assistance, and the concerns have reduced."> Healdsburg is at Stage 2 mandatory water conservation, which calls for a 20% reduction below last year's water use. The city's Web site cites low Russian River flows from Lake Mendocino in imposing the restrictions: http://www.ci.healdsburg.ca.us/index.aspx?page=397. But Pettus said: "Healdsburg has sufficient water to meet current demand." She said the city can additionally draw from wells in Dry Creek Valley as of April 1 of each year. "Between the river and the wells we can meet all of our commercial and residential water needs." This chic wine-tourism destination with more than 11,000 residents was the largest water district on February's at-risk list. It appeared alongside smaller areas whose reactions have been mixed. Water managers in Shaver Lake Heights, Bass Lake and Sierra Cedars wrote that they were placed on the "at-risk" list in error and were then removed. Pete Conrad of Sierra Cedars passed on an email from CDPH's Merced District saying Sierra Cedars "should not have been included on the list as there is no indication that the system is experiencing any reduced capacity or other complications due to drought conditions." Pettus, however, said phone calls to state officials by Healdsburg Mayor Jim Wood got no clear explanation for the at-risk designation. She said, "They might have acknowledged the mistake but there was no corrective action taken." Some of the districts on the list of 17 do face nervous water situations. One such is Lake of the Woods, nearly a mile above sea level in the Tejon Pass area of Kern County. The New York Times' Adam Nagourney reported March 7 at http://nyti.ms/1g76cj1 that the community was near the point of trucking in water. In Redwood Valley, water manager Bill Koehler didn't mind being on the list. "Yes, we are, and yes, we deserve to be." He said tree-ring records suggested his area of Sonoma County, served by drastically low Lake Mendocino -- "It's a mudflat" -- was suffering a 400-year drought. He said Redwood Valley had about 120 days of water and then would have to depend on neighbors. The at-risk designation had no formal effect but Pettus said it drew "a tremendous amount of media attention". The 17 listed communities have been mentioned as emblematic of California's drought in news reports as far away as Toronto: http://bit.ly/1bK8n6m. Likewise Nagourney, reporting on Lake of the Woods, narrated, "for 17 small rural communities in California, the absence of rain is posing a fundamental threat to the most basic of services: drinking water..." At CDPH, spokesman Ron Owens responded to a request for comment by calling attention to a new list posted March 4: http://bit.ly/1g76RRq. The new list says "CDPH has prioritized assistance to the following public drinking water systems," and names seven districts: Willits, Redwood Valley, Lake of the Woods, and four remote districts that each serve 100 or fewer people. CDPH had not responded specifically by press time to a request for comment on the objections from Healdsburg and the three smaller towns, nor to a question how the criteria compared for the January 28 and the March 4 lists.

In a pair of decisions March 5, the Sacramento County Superior Court's Judge Timothy Frawley invalidated parts of the EIR that has been allowing the Kern Water Bank, a major groundwater reserve near Bakersfield, to function under its current legal framework. The water bank's physical operations and environmental safeguards were at issue, against a background that includes conservationists' criticism of influence in the bank's governance by entities associated with food and farming investor Stewart Resnick. The March 5 decisions in two companion cases rejected several wide-ranging objections to the EIR by the plaintiffs, who were conservationists and neighboring water districts. However, it found the EIR "fails to adequately describe, analyze, and (as appropriate) mitigate the potential impacts of the Project associated with the anticipated use and operation of the Kern Water Bank." The decision in the Rosedale-Rio Bravo Water Storage District v. Dept. of Water Resources case, which was the more focused on neighboring districts, added, "...particularly as to potential groundwater and water quality impacts." The two rulings dig deep into the fiercely arcane water-and-muscle history of the "Monterey Plus Project," created by the 2003 initial settlement of disputes over the 1994 Monterey Agreement between the State Water Project and its contractors on Southern California water distribution. The California Water Impact Network (C-WIN), among the successful plaintiffs, posted the decisions at https://www.c-win.org/press-room-monterey-plus-amendments.html. The pleadings and decisions are at https://services.saccourt.ca.gov/publicdms/ under case numbers 34-2010-80000561 and  34-2010-80000703. The LA Times' Bettina Boxall had initial reactions and analysis at http://lat.ms/1fK3YXu. Reached soon after the decision, Carolee Krieger, president of C-WIN, sounded thrilled and a little stunned. She said it addressed kinds of questions she had been asking since 1995, when as an amateur local activist she happened into a meeting in Buellton and heard for the first time about the Monterey Agreement. Although the current EIR "surfaced" in 2010, she said "it took this long for the judge to finally get to the merits of the case" -- and his ruling was for C-WIN's side. "It's just huge." She knew it wasn't over. She predicted the matter would be appealed and end up before the state Supreme Court. But she said, "You have no idea how happy I was because that's not what I expected. I expected to have to go to the Supreme Court to get a decision like this." Krieger said additional issues included the "urban preference" -- the question of whether the Monterey Amendments mean the water bank's most essential function is no longer the one originally intended for it: to backstop the State Water Project's supplies to city water systems. More narrowly, she said the decision indirectly affects water supply for large planned developments on the lands of the massive old Tejon and Newhall Ranches. However, Krieger and attorney Adam Keats, who litigated the case for the Center for Biological Diversity, did not comment more specifically about impact on residential development. Bakersfield Californian columnist Lois Henry, however, suggested in a recent news analysis that the decision might affect Tejon Mountain Village, as its EIR "specifically names water banked in the Kern Water Bank" as a source for its planned residential and business customers. She wrote, "If that water is caught up in some kind of freeze or injunction, what then?" Asked about consequences of the decision, Keats wrote: "It will all depend on what the court orders in terms of remedies. At this point everything is presumably on the table, from shutting the Kern Water Bank down pending environmental review to business as usual. So it's hard to say right now what effect this will have on any projects being planned or being built. That said, any project seeking to rely on the Kern Water Bank for its water supply should be questioning that supply. But I'm not aware of any such project at this moment." Attorneys representing Resnick's Roll International Corporation, Paramount Farming Company, LLC and related entities did not comment, except that a Roll Law Group attorney wrote, "please refer all inquiries to the Kern Water Bank Authority." At the water bank, director Jonathan Parker responded by email: "The KWBA is disappointed.  We are reviewing the decisions and our options. In any event, moving forward we will comply with CEQA." As of March 12 he wrote that the upcoming timeline was "Uncertain. There may be a remedies hearing later summer or early fall." (The court has since scheduled such a hearing for September 5.) He wrote that he was not familiar with the residential projects. Ellen Hanak of the Public Policy Institute of California said, "I'm a little perplexed by the decision." She said the groundwater bank under its current management was among leaders in Kern County, who others have emulated, enabling active storage of groundwater and making the system more resilient. Hence she said, "I don't understand the argument" that the current operation could worsen care for the water supply.

A Saudi prince's Los Angeles family compound plan in Benedict Canyon has won an appellate court's order clearing the way for a grading permit across a large hillside area, even though the sponsors did not file a tract map. Writing for a unanimous three-judge panel of the Second District Court of Appeal, Justice Victoria Gerrard Chaney upheld the trial court's order, which found no tract map is required where the land in question will not be subdivided. The project called for construction of three houses, plus a pool, outbuildings and "accessory living quarters", on three contiguous hillside lots that together covered 85,000 square feet. The land use blog of the Jeffer Mangels law firm, whose attorneys represented project proponent Tower Lane Properties, said Tower Lane was "an entity established by Saudi Prince Abdulazziz ibn Abdulazziz al Saud, who is currently the Deputy Foreign Minister of Saudi Arabia." The opinion's procedural history said city planners first responded to the proposed project by citing a local code requirement that a tentative tract map must be in place with Planning Department approval before a grading permit may be issued for a hillside area of 60,000 square feet or more. Tower Lane sought a waiver of the requirement. When Planning called for an environmental impact assessment Tower Lane balked and filed a writ petition in court. Two neighbors joined the city in opposing the writ. The appellate court found the Los Angeles code section containing the grading requirement "by its plain language applies to subdivisions only." It said the code section's phrasing and context, including the very words, "tentative tract map", showed it was meant for subdivisions. The city had argued the tract map procedure was an appropriate means for the city to review whether the grading was appropriate for the site or should be limited by constraints such as planning restrictions or easements. The court responded, "It is not our place to decide whether the City should make these inquiries, only whether section 91.7006.8.2 mandates them. It does not. " It noted separate provisions in the Building Code did call for the inquiries the city had in mind, but did not provide for them to be made by the "advisory agency" mentioned in the tract map statute. The court further refused to defer to past department memoranda and decisions applying the statute, saying that in the examples put forward, either the decisions were made in the context of subdivisions or non-subdivision applicants for waivers were not put through environmental review as the appellants would have been. The Jeffer Mangels blog quoted one of the firm's attorneys, Benjamin M. Reznik, as saying his client "has been the target of allegedly unfair and at times vicious attacks by local residents and the media" and "feels completely vindicated by the court ruling." http://landuselaw.jmbm.com/2014/03/appellate-court-rules-in-favor-of-saudi-prince-in-benedict-canyon-case.html. The case is Tower Lane Properties v. City of Los Angeles, at http://www.courts.ca.gov/opinions/documents/B244092.PDF .

In a dispute between tenacious neighbors in Del Mar, the Fourth Appellate District upheld a variance for plans to tear down and rebuild a house at its existing distance from the street although it did not meet a local 20-foot front yard setback requirement. The court said property owner Jon Scurlock's right to seek a variance for his "complete remodel" was independent of the old building's existing nonconformity, and it found substantial evidence for local officials' decision that granting the variance would be fairest to the property owner while serving local planning goals. The old housefront, hence the proposed new one as well, stands "nine to 11 feet from the street" on a lot sloping steeply downward. The local Design Review Board found that replacing the house at the same distance from the street as before would best minimize "adverse impacts to steep slopes," land disturbance and the sizes of retaining walls. After an investigation including personal visits by all members, the Planning Commission agreed, adding that "strict application of the front yard setback deprives the property owner of privileges enjoyed by other properties in the vicinity." Neighbors' objections and legal action failed to win over the City Council -- again, after personal site visits by all members. The county Superior Court rejected the neighbors' writ petition. Likewise the appellate court. All sided with Scurlock. Deferring to the city's interpretation of its own code, the appellate court rejected arguments based on municipal statutes that governed property owners' rights to maintain but not increase nonconformities in existing structures. The court said the right to maintain a nonconformity and the right to apply for a variance are "two completely separate concepts" and it would be absurd and unfair to let a preexisting nonconformity on a property limit the owner's ability to apply for a variance. It said since Scurlock meant to do a "complete remodel" he had no rights to continue any nonconformities -- only the independent right to apply for a variance, which he did. The court found substantial evidence for the Planning Commission's approval of the variance, quoting with approval its extensive findings and rationales on the uniqueness of the building site and the fairness of the variance as a way to let Scurlock develop his property in parity with rights of other nearby property owners. Although it would be possible for the property owner to rebuild lower on the slope in compliance with the setback rule, the court said that in light of the greater costs in money, environmental disruption, ugliness and awkwardness, it did not follow that he should be made to do so. On a municipal code section that called for considering alternate designs, the court said "the inquiry is whether an alternate design could have avoided the disadvantages that stem from complying with the setback requirement. The inquiry is not... whether Scurlock could have designed a house that complied with the setback requirement regardless of the disadvantages." Decided in February but ordered published as of March 14, the case is Eskeland v City of Del Mar , at http://www.courts.ca.gov/opinions/documents/D061370.PDF.

Lawyers for organizations may feel both shudders and relief on reading a recent appellate decision protecting attorney-client privilege for the members of a La Jolla homeowners' association. Shudders, that a local court's discovery order would have required individual homeowners to recount group strategy meetings held by their HOA's lawyers. Relief, that the Fourth District Court of Appeal has blocked the order. The dispute arises from two construction defect lawsuits against developers and builders of a 140-unit common interest development. The homeowners' association has sued over alleged damage to common areas and about 30 individual homeowners are suing separately over alleged damage inside their individual units. The discovery dispute concerned whether the HOA's lawyers waived confidentiality when they held meetings for homeowners "to apprise them of the status and goals of the litigation," and in one case to get their vote approving the action. Defendants alleged the protective circle of attorney-client privilege was broken by the presence of individual homeowners who were not the lawyers' clients. A homeowners' association is a different entity from its individual members, not all of these homeowners had chosen to join the other lawsuit alleging damage inside of homes, and in any case that suit was brought by different lawyers. The appellate court held confidentiality rights were not waived at the meetings based on a review of Cal. Evidence Code §§ 912 and 952 and prior evidentiary rulings specific to homeowners' associations, including their duties to keep members informed. It noted attorney-client privilege can protect third parties to whom disclosure is "reasonably necessary for... the accomplishment of the purpose" of the consultation. While participants in the two lawsuits might have diverging interests in obtaining legal advice, the court found "the Association's attorney was attempting to communicate in the subject meetings with other stakeholders, the individual homeowners, in a manner that would advance their shared interests in securing advice on similar legal and factual issues." The case is Seahaus La Jolla Owners Association v. Superior Court , at http://www.courts.ca.gov/opinions/documents/D064567.PDF.

Ruling for the Coastal Commission against property owners represented by the Pacific Legal Foundation, California's Second Appellate District cited the doctrine of collateral estoppel to find that an easement condition on a coastal development permit, once final, cannot be contested in a second permit application. In Bowman v. California Coastal Commission , the court wrote that property owner Walton Emmick obtained construction permits and did some work to fix up a dilapidated house on coastal property, but died before San Luis Obispo County granted his application for a coastal development permit (CDP). After his death, the county granted the CDP to his successors, the trustees of a family trust. As a condition for the permit, the county imposed what the appellate court termed a "quasi-judicial determination that the lateral easement condition was valid for the proposed development because development would lead to an increased use of the property." The trustees let the decision become final without appealing it directly. The court said the trustees later applied for a second CDP, in part to replace the property's barn, but also for much of the work already authorized under the first CDP -- and, additionally, asking the county to drop the easement condition. The county did approve the second CDP application, and did agree to remove the easement, but "the Sierra Club, the Surfrider Foundation and two coastal commissioners appealed" to the Coastal Commission, which found the easement condition from the first permit to be binding. Both the trial court and the Second District sided with the Coastal Commission. To a claim by the trustees that they could "walk away" from the initial CDP and seek a new one, the court retorted that they "cannot walk away from collateral estoppel." It held that basic principles on the finality of judgments prevented reopening a settled determination with a new permit application. The court found appellants showed "nothing that would compel the Commission to modify the access easement condition." Contrary to appellants' claim, it said the Coastal Commission did not try to expand the easement beyond what the original CDP required. The court found the appellants' contention that they never accepted the easement condition did not prevent it from taking effect. It found that since the construction work was completed under the initial CDP, appellants accepted the benefits of the permit, hence were bound by its condition. The court said this was so even though the work had been completed under the decedent's local construction permits while his application for the first CDP was still pending. The court said the work done then was only legalized by later issuance of the CDP that carried the condition. In a seeming inconsistency, the opinion's initial procedural history says Emmick obeyed an order to stop construction but the concluding paragraphs say he "completed the improvements". In a December 2013 blog entry, an attorney for the trustees, Paul Beard II of the Pacific Legal Foundation, gave a somewhat different account. He wrote that the work Emmick did on the property was under local construction permits for repair work that is "categorically exempt" from CDP requirements, and that Emmick completed it while his CDP application for larger-scale work was still pending. Beard wrote that "no further work on the property has been done since the repairs were completed." He contended that "the family did not sign or in any way exercise" the first CDP. His account of the second CDP application says the Planning Department first "eliminated one-half of the public-access easement" and then, per the family's appeal, the Supervisors agreed to drop the easement entirely -- after which the environmentalists' appeal to the Coastal Commission followed. See http://bit.ly/1gl5D6k. A recent posting by the organization (via http://bit.ly/1kYZYlJ) says the decision is 'based on an utterly confused understanding of the facts, as alleged by the Commission.' The case is at http://www.courts.ca.gov/opinions/archive/B243015.PDF .

In a case that could reset the parameters of reality, the developer of a mixed-use development under construction in Hollywood has asked the state geological service to change the earthquake map of Los Angeles. In January the state Mining and Geology Board issued updated California Geological Survey maps with a surprise for Tinseltown developers. They showed an earthquake fault underlying the massive Blvd6200 project, which is currently under construction on Hollywood Boulevard. In a hearing of the same Mining and Geology Board last week, lawyer John M. Bowman, representing developer Clarett West, told officials the fault line "is not clearly detectable… and therefore is not sufficiently well-defined to be included on the map." Much rides on the determination of the actual fault line on the Geological Survey. In addition to the $200 million Blvd6200, which is a multi-building development, the same fault could conceivably imperil the multi-tower Millennium Hollywood project, planned for parking lots surrounding the famed Capitol Records building. A third project, a 535-unit apartment complex planned on nearby Argyle Avenue, could also be affected. To avoid damage from the fault as newly mapped, it has become crucially important to change the map. As is well known, the physical behavior of the earth and surrounding celestial bodies depends largely on the maps that people draw of them. This phenomenon, known as map-to-reality conversion, first became evident in the early 16th Century, when Copernicus drew a map of the solar system with the sun at the center, rather than the earth. This map caused the earth, which had been the center of the universe up until that time, to suddenly begin orbiting the sun. The upshot for the publishing industry was dramatic: Remainder houses were suddenly full of books like the Summa Theologica by St. Thomas Aquinas and the Divine Comedy by Dante Alighieri, both of which had been written under the previous cosmology and were now obsolete. This map-to-reality conversion is a special feature of a philosophy I invented as an undergraduate that I call "concrete idealism." In essence, it holds that the earth is real, but can take any form that I find convenient at the moment. Although the paper was poorly received at an academic conference, I do recall that a distinguished professor of philosophy, well known for his chronic depression, suddenly perked up and made loud whooping noises with his throat while slapping his thighs in an excited way. I don't recall his exact comments afterward, although he did mention that my work was "the best medicine." I do hope my theory can play a helpful role in rescuing an important real estate development, and, in so doing, finally convince my brother-in-law that I did not waste my time in college. As for the case at hand, geologists testifying on behalf of the developer have suggested the actual fault lies elsewhere in Hollywood, rather than directly beneath the soon-to-be-completed building. In defense of the developer and his geologists, I'd like to point out that nobody really knows exactly where the earthquake fault is located. That means the location of the fault is conjectural in the absence of established fact. Insofar as the location of the fault is a conjecture, that means reasonable minds can disagree on the subject. Thus it may be not unreasonable to locate the fault elsewhere than underneath this valuable real estate. Quod erat demonstrandum . Of course, there are legal matters of great moment here. If (heaven forbid) the project were to be built on a currently mapped fault and a seismic cataclysm were to ensue, the owners might be sued by any persons emerging from the rubble thereof based on said owners' alleged awareness that the project had been built on a fault. (Assuming, of course, that the project would not simply have vanished into the bowels of the earth, much like a little plastic hotel from a Monopoly game that has slipped through a storm drain, never to be seen again.) If the map were to be amended, however, the developers could distance themselves from the fault. "The official map showed the fault to be elsewhere," they could say in retrospect, with a shrug. "Who knew?"

HUD's in-house auditor has joined the chorus asking what now becomes of assets funded through California redevelopment agencies.  In a report naming specific assets in three cities, HUD's Office of Inspector General (OIG) voiced concern that successor agencies might lose track of which assets had partly federal antecedents, and hence might cut the federal strings attached to their use. It mentions "concerns that affordability covenants related to CPD-funded assets may be ignored during the transfer of control" and a possibility that federally funded assets could be folded into state government sales of assets it regards as its own. Many cities loaned HUD funds to their redevelopment agencies, which then used them to create or purchase real estate assets. HUD has been concerned as to what will happen to those assets now. The February 28 report said HUD's own Office of Community Planning and Development (CPD) needs to extract more documentation from local California grantees, and keep a formal list of CPD-funded assets, to safeguard some $99 million in CPD-administered funds that redevelopment agencies have distributed, including Community Development Block Grants, brownfields redevelopment assistance, Sec. 108 loan guarantees, and grants supporting Sec. 108 projects under the Economic Development Initiative. The report focused on a spot check of 20 large San Francisco, San Jose and Los Angeles assets. Among these, it said 15 of the grantee entities could not prove they had the required "binding and enforceable rights" to assets funded by the CPD programs. Assets mentioned included parts of San Francisco's Yerba Buena Center redevelopment project such as the Metreon shopping and entertainment complex; San Jose's 84 South First Street office building rehab; and, in Los Angeles, elements of the Marlton Square, Noho Commons, Slauson Central Shopping Center and Goodyear Tract projects. In a rebuttal that formed part of the report text, HUD Deputy Assistant Secretary Yolanda Chavez wrote that OIG's recommendations misunderstood HUD regulations, attributing too much oversight responsibility to HUD CPD and too little effectiveness to CPD's existing risk-based monitoring. Her response recounts HUD's efforts to track transfers of assets in a state-mandated unwinding process not of the agency's choosing. And it protests that some concerns about specific Los Angeles projects, including the Goodyear Tract, were already being addressed after previous audits. The report is at  http://www.hudoig.gov/reports-publications/audit-reports/cpd-did-not-monitor-grantees-cpd-funded-assets-transferred-former  .