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Physical Solution to Water Overdraft Trumps CEQA


In a partially published decision, Central Basin Municipal Water District v. Water Replenishment District of Southern California (Dec. 10, 2012) 2012 Cal. App. LEXIS 1244, the Second District Court of Appeal determined that the Water Replenishment District of Southern California’s (WRD) declaration of a “water emergency” in the Central Basin did not constitute a “project” for the purposes of the California Environmental Quality Act (CEQA).  WRD made the “water emergency” declaration pursuant a judgment governing the Central Basin, which empowered WRD to declare a water emergency if certain conditions identified in the judgment were met.  The trial court concluded that CEQA was not applicable to WRD’s action because in making the declaration WRD was not acting as a public agency but instead was acting as an agent of the court pursuant to the terms of the judgment.  The Second District Court of Appeal agreed.

Specifically, the court stated that CEQA was not applicable for two related reasons.  First, the court held that the declaration of a water emergency by itself has no environmental impact and therefore is not a project within the meaning of CEQA.  Petitioners argued that after WRD declared a water emergency, other provisions of the judgment were triggered that had the potential to result in significant environmental impacts.  However, the court concluded that argument was irrelevant because the only role of WRD–the public agency whose conduct was being challenged–was to declare the water emergency; WRD had no control over the terms of the judgment and the impacts that may flow from it.  Second, WRD had no discretion to alter the terms of the Judgment even if it prepared an EIR.  Thus, the court held WRD’s declaration of a “water emergency” must be viewed as ministerial.

Lastly, the court held that even if WRD’s declaration constitutes a project subject to CEQA, CEQA would still not be applicable because “CEQA is trumped by the Physical Solution” set forth in the judgment.  The court explained that the physical solution is an equitable decree designed to implement the constitutional mandate to conserve the waters of the state and to maximize the beneficial use of water.    Therefore, notwithstanding the desires of the parties or their CEQA obligations, the court had power to enforce a physical solution.

Key Point:

CEQA does not apply to actions of the judiciary.  Therefore, agency actions directed by a court should typically be viewed as ministerial actions not subject to CEQA review.

Written By: Tina Thomas and Christopher Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 



dateDecember 21st, 2012byby


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