Group Files Suit Challenging CEQA Exemption to County Water Agreements

The petition alleges that the Board of Supervisor’s approval “based upon a Notice of Exemption, violates the requirements of the California Environmental Quality Act (‘CEQA’), Public Resources Code, section 21000 et seq.”

According to Attorney Don Mooney writing for the petitioner, “The Agreement covers two water transfers involving Conaway Preservation Group (CPG). The first provides for the transfer of up to 80,000 acre-feet of surface water to the Metropolitan Water District or one or more other out of county purchasers. The Agreement provides that 80,000 acre-feet is the maximum that may be transferred through 2033 and that annual transfers may not exceed 13,500 acre-feet. The Agreement further provides that once the Cities of Davis and Woodland begin taking 10,000 acre-feet of surface water annually from CPG, the combined transfers to MWD or other out-of-county purchaser and the Cities cannot exceed 13,500 acre feet each year.”

They continue, “The transfer of up to 10,000 acre feet of surface water annually to the Cities from about 2016 through 2039, with the Cities acquiring water rights in 2039 that would enable continued transfers of up to 10,000 acre feet annually thereafter. The Agreement also provides for the sale of conservation easements to the State of California through the Department of Fish and Game and the dedication of land to the Yolo Basin Foundation.”

The allegations include, “Respondents abused their discretion and failed to act in the manner required under CEQA with respect to the Project because they failed to adequately analyze its environmental impacts, and necessary or feasible mitigation measures.”

As we know, an abuse of discretion is a very high threshold to meet. 

They argue that the county believes that the project is categorically exempt from CEQA review under CEQA Guidelines sections 15307, 15308 and 15061(b)(3).

On the contrary, the petitioners argue, “The project is not exempt under these provisions as it may have potentially significant environmental impacts to water, land use, and agriculture that have not been addressed in a previous environmental impact report (‘EIR’). As such, prior to approving the Project, the County must comply with CEQA through preparation of either a negative declaration or an EIR.”

The agreements will be before the Board of Supervisors next Tuesday, February 8.  They are revisiting the issue of the agreements after complaints about violations in the board’s act.

Board Chair Matt Rexroad does not believe that they violated the Brown Act, as alleged, and neither does the county legal staff.

In the staff report they write, “This office is confident that all legal requirements—and in particular, all Brown Act requirements—were met for purposes of the actions taken on December 17. Nonetheless, to help resolve the ongoing controversy, we recommend that the Board of Supervisors take the actions described above and, in effect, consider the attached Agreement as if the December 17 hearing had never taken place.”

Supervisor Jim Provenza first raised the issue back on December 22, 2010.

Supervisor Provenza told the Enterprise that he had received notice of the meeting at 4:52 p.m. Thursday, which the Enterprise reported was “the same time the county e-mailed The Davis Enterprise an agenda. Friday’s meeting started 20 1/2 hours later, at 1:30 p.m.”

Mr. Provenza told the Enterprise, “he’s just looking into that at this point,” because he’s not sure if a Brown Act violation occurred. According to the article, “The board met three days before the special meeting, on Tuesday, Dec. 14, and recessed that meeting until Friday.  But, Provenza said, the docket did not call the board to take a vote on Tuesday, which means carrying over the meeting doesn’t pass legal muster.”

So now, erring on the side of caution, the board is rescinding their action and reconsidering it.

According to the staff report, “the attached Agreement creates a framework that enhances protection of the agricultural, habitat, and water resources of Conaway Ranch. It also supports meaningful County participation in matters that could affect such resources, including the Bay Delta Conservation Plan (‘BDCP’).”

They continue, “In particular, the Agreement is intended to strengthen the County’s ability to participate in developing the terms of certain conservation easements that Tri-City proposes to sell to the State of California, as well as the later formulation and environmental review of any habitat projects that may proceed within the easement areas. While the easement sales and later habitat projects are speculative and may not come about, the Agreement provides the County with a defined role in the event such activities eventually move forward.”

“The first transaction is a proposal that—if formally developed, studied, and approved by appropriate authorities—would entail the transfer of surface water to Metropolitan Water District or one or more other out-of-county purchasers,” the staff report reads, adding, “It is speculative and, importantly, its approval is entirely beyond the County’s regulatory authority.”

“The second transaction concerns surface water deliveries to the Cities of Davis and Woodland. It involves the Conaway Preservation Group (“CPG”), Reclamation District 2035, and the Woodland-Davis Clean Water Agency (“Agency”),” the staff report reads.  “The Cities extensively studied these deliveries and a range of other activities in a certified Environmental Impact Report. Those entities approved agreements concerning such deliveries in late December 2010.”

The county adds, “As with an out-of-county transfer of surface water, the County has no legal authority over the sale of surface water to the Agency and the Cities and it is not a party to related agreements between those entities.”

The second portion of the agreement relates to the proposal to sell habitat conservation easements.

The county writes, “Tri-City would like to sell easements covering (a) up to 4,000 acres for potential conversion to seasonal floodplain habitat, and (b) up to an additional 2,000 acres for preservation of giant garter snake and Swainson’s hawk foraging habitat. The State of California is the anticipated buyer of such easements, likely in connection with ongoing efforts—primarily, the BDCP [Bay Delta Conservation Plan]—to develop a conceptual approach to seasonal floodplain habitat restoration within the Yolo Bypass.”

The county is recommending another vote determining that the agreements are exempt from CEQA under the law.

According to the county however, the agreement contains “no specific projects” that “have been explored or formulated in meaningful detail.”

They add, “Further, nothing in this Agreement represents a commitment by either party to later carry out or approve any project that may result from the activities described herein, nor does the Agreement foreclose alternatives, including the no project alternative where applicable, or mitigation measures that would be part of the CEQA review of any such projects.”

They conclude, “For all of these reasons, environmental review of such projects is thus premature and not required by CEQA. The parties expect appropriate environmental review to occur at the time when such review is proper, and before the approval or implementation of any project that may result from the activities anticipated in this Agreement. The County commits to conduct such review if it hereafter determines that it is the lead agency for any such projects.”

“This language is intended to address potential misperceptions regarding both the nature of the Agreement and the applicability of CEQA,” the county adds.

Staff maintains that the County is not approving any surface water transfers or habitat projects and with the exception of the Woodland-Davis Clean Water Agency agreements, “the surface water transfers and habitat projects referenced in Sections 1 and 2 of the Agreement are speculative, conceptual, and may never happen.”

That becomes the key question, now that a court may have to decide,whether they are exempt under CEQA based on their rationale that there is no specific project and therefore no specific impact, or whether Attorney Don Mooney is correct.

He argues that “The County also claimed that the Project is exempt under CEQA Guidelines section 15061(b)(3) that provides for an exemption “where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. . . .”

From his perspective, “Known as the ‘common sense’ exemption, it can be used ‘only in those situations where its absolute and precise language clearly applies.’ ”  And that is not the case here.

Moreover, the fact that the agreement provides for the transfer of 80,000 acre-feet of water to another user outside of the county precludes the county from exempting the agreement from CEQA.

Tuesday’s meeting ought to be very instructive.  The County expects that this is a mere formality that will rubberstamp the actions of December 17 by precluding any legal challenge on the basis of the Brown Act.  But now that opens the rest of the agreement up to scrutiny that it did not face in December, due in part to a lack of time.

—David M. Greenwald reporting