March 13 was a bad day for big water in California. A state appellate court blocked preliminary studies for the Delta water tunnel on takings grounds, and the federal Ninth Circuit threw its weight against California's existing southbound hydraulics on behalf of the tiny Delta smelt.
Studies for Delta tunnel project found to be takings in themselves.
In the state case of Property Reserve, Inc. v. Superior Court (Dept of Water Resources), California's Third District Court of Appeal ruled that the relatively simple precondemnation entry order process under Cal. Code of Civil Procedure 1245.010 et seq. was not sufficient to give the Department of Water Resources access to private properties to conduct environmental and geological studies in preparation for the Delta water tunnel project. Two members of the three-judge panel, George Nicholson and Andrea Lynn Hoch, ruled in their 44-page majority opinion that intrusions for the geological studies, which would include such activity as drilling test borings, and even for the less disruptive environmental studies, would themselves constitute takings. Accordingly, they wrote, the state would need to bring full-scale condemnation actions to get the access it sought.
Their opinion was followed by an incredulous, equally lengthy dissent from Justice Cole Blease arguing the orders should have been sufficient. The case is at http://www.courts.ca.gov/opinions/documents/C067758.PDF. Daniel Kelly of Somach Simmons & Dunn, who was among the attorneys for property owners in one of the two consolidated cases, has a commentary at http://www.somachlaw.com/alerts.php?id=272. The Department of Water Resources issued a statement that it did not expect the decision to delay its tunnel project, known as the Bay Delta Conservation Plan, because it had already invoked the eminent domain process to seek geotechnical drilling rights. http://www.water.ca.gov/news/newsreleases/2014/031414.pdf
2008 opinion on Delta smelt upheld
In a mighty opinion whose mere caption extends for 14 pages, the Ninth Circuit Court of Appeals upheld a 2008 Fish and Wildlife biological opinion restricting water pumping by the State Water Project and Central Valley Project to protect the endangered Delta smelt. The majority opinion, by Judge Jay Bybee, was joined in most part by Judge Johnnie Rawlinson and to a lesser extent by Judge Morris Arnold. Bybee, formerly of the Bush Administration's Justice Department, concluded the biological opinion was reached by reasonable enough methods that the court could not second-guess it regardless of its potentially massive consequences. Key issues were the extent to which salinity had crept up the delta and what flow levels would protect enough small fish from entrainment in the pumping plants. The case is San Luis & Delta-Mendota Water Authority v. Jewell, at http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/13/11-15871%20web%20revised.pdf. San Francisco Chronicle legal writer Bob Egelko has details at http://www.sfgate.com/science/article/Appeals-court-reinstates-plan-to-protect-delta-5315300.php. Water writer Bettina Boxall has the story for the LA Times at http://www.latimes.com/science/la-me-delta-smelt-20140314,0,2433870.story
LA City Council sets out to regulate fracking
The Los Angeles City Council on Feb. 28 ordered the city planning department to develop regulatory controls, and the City Attorney to draft text for a zoning ordinance, that would ban "well stimulation", including "hydraulic fracturing, gravel packing and acidizing". The LA Times report at http://www.latimes.com/science/la-me-0301-fracking-ban-20140301,0,6285538.story cited the Department of Conservation for a statement that LA has "1880 active and 2932 abandoned oil and gas wells" in the city. It said an analysis of air quality reports had found "fewer than a tenth of the Los Angeles County wells that have used acidizing, gravel packing or hydraulic fracturing are in Los Angeles' city limits." It didn't say what proportion of the 1880 active wells in the city limits are using such methods. The ongoing Council file on the measure is at http://cityclerk.lacity.org/lacityclerkconnect/index.cfm?fa=ccfi.viewrecord&cfnumber=13-1152-S1.
Legislative Analyst Calls for Tighter Groundwater Regulation
The Legislative Analyst's Office submitted an acerbic ten-page handout on groundwater management to Assembly committees in mid-March. It said current law fails to "acknowledge the physical connection between groundwater and surface waters," contamination problems need addressing, and oversight structures for groundwater are fragmented. It accordingly recommended groundwater be more thoroughly tracked and regulated, including through a permit system for use. It invited the Legislature to approve the Governor's proposal to transfer drinking water regulation from the Department of Public Health to the State Water Resources Board. It also asked that the Department of Water Resources be required to report on whether local applicants for Integrated Regional Water Management grants have met a precondition for such grants that requires them to conduct groundwater monitoring. For the handout see http://www.lao.ca.gov/handouts/resources/2014/Groundwater-Resources-03-11-14.pdf. The proposed transfer of drinking water regulation is discussed in detail at http://www.waterboards.ca.gov/drinkingwater/. Valley Public Radio enlarges on the LAO material with gloomy further thoughts at http://kvpr.org/post/new-report-california-groundwater-crisis-looming.
LAO Wonders About Delta Tunnel Budget Risks
A February LAO report on paying for the Delta water tunnel project, known as the Bay Delta Conservation Plan (BDCP), said $176 million was spent on planning activities for the project from 2006-7 until June 2013. It found the BDCP's cost estimates essentially fair, but questioned the assumptions about land costs and construction cost overruns. It suggested more flexible thinking about procurement might be in order. Further, it questioned more basically whether the twin tunnels carrying northern water under the Delta will bring water users greater benefits than the costs of their construction. The BDCP's total cost estimate for the project is $24.8 billion. The report asked if the state would be adequately protected from financial risk under the terms of new water supply contracts. It found another area of financial uncertainty in BDCP's reliance on future bond measures to pay for ecosystem restoration and the "potential for additional public liability if species do not recover." It suggested that the Legislature "designate other entities as a backstop" for environmental costs -- possibly the State Water Project or California Water Project -- and "adopt policies to control factors outside of the Delta that have a negative effect on species." The report is at http://www.lao.ca.gov/handouts/resources/2014/Financing-the-BDCP-02-12-14.pdf.
Bill introduced to grant local power to restrict Ellis Act use
Assemblymember Tom Ammiano, D-San Francisco, introduced a measure in February that would allow counties (including San Francisco) to suspend whole-building evictions under the Ellis Act until their local areas met regional goals for affordable housing supply. An additional, less-publicized provision would convert Ellis Act court proceedings from summary unlawful detainers to civil actions according more procedural protections on slower schedules. The measure would also limit public access to records of Ellis Act filings, making it difficult for background-check companies to collect such information. The measure is AB 2405, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2405. The San Francisco Rent Board's most recent Annual Eviction Report, at http://www.sfrb.org/modules/showdocument.aspx?documentid=2700, says 216 units received Ellis Act eviction notices from March 2013 through February 2014. That figure is relatively small compared with the 1,977 overall eviction notices filed during the same period. However, landlords' ability to threaten a formal Ellis eviction can be a factor in moveout agreements that do not reach the courts.
AB2405 appears against a background of concern about tenant displacement in San Francisco's overheated real estate market. Mayor Ed Lee was among local figures who endorsed efforts to restrain or discourage no-fault evictions last fall. http://articles.latimes.com/2013/nov/17/local/la-me-tenant-fight-20131118. Supervisor David Campos, currently competing with Board of Supervisors President David Chiu to succeed Ammiano in the Assembly, has proposed a local measure to increase relocation payments to tenants displaced by Ellis evictions. See http://www.sfexaminer.com/PoliticsBlog/archives/2014/03/14/david-campos-ellis-act-legislation-going-before-board-committee.
