On December 10, 2012, the California Second District Court of Appeal, in Central Basin Municipal Water District v. Water Replenishment District of Southern California (2012) __Cal.App.4th__ (Case No. B235039) upheld the Los Angeles County Superior Court’s order sustaining a demurrer to the Central Basin Municipal Water District’s (CBMWD’s) petition for writ of mandate, which alleged that defendant Water Replacement District of Southern California (WRD) improperly failed to conduct CEQA review before declaring a “water emergency” in the Central Basin.

Background

Groundwater management in the Central Basin groundwater basin is governed by a court ordered judgment. The judgment provides a comprehensive framework for water use in the Central Basin and imposes a “physical solution” described as “an equitable remedy designed to alleviate overdrafts and the consequential depletion of water resources in a particular area, consistent with the constitutional mandate to prevent waste and unreasonable water use and to maximize the beneficial use of water, with recognition that it is a limited resource.” (Hillside Memorial Park & Mortuary v. Golden State Water Co. (2011) 205 Cal.App.4th 534, 538, fn. 2.)

The judgment empowers WRD to declare a “water emergency” when the Central Basin resources risk degradation.  Declaring a water emergency alters the portions of a pumper’s allocation of water that the pumper may “carryover” to another year, meaning the entity retains the right to that water longer than it otherwise would. It also permits a longer period to replace a pumper’s over-extraction of groundwater (i.e., an extraction of an amount greater than the pumper’s annual allotment). The judgment imposes a limit of one year on a declared water emergency, though the term may be less than one year. The judgment also reserves continuing jurisdiction to the court.   

In November 2010, WRD declared a water emergency, which by later resolution expired on June 30, 2011. On December 29, 2010, CBMWD challenged the declared water emergency in a petition for writ of mandate, contending that WRD was required to follow CEQA prior to declaring a water emergency. WRD demurred, and the trial court sustained the demurrer, finding that CBMWD could not state a cause of action under CEQA. The trial court court explained that WRD’s declaration was under the authority granted by the judgment and that although WRD was a public agency in most respects, it was acting as an agent of the court in this situation, and was therefore not subject to CEQA. CBMWD appealed.

The Court of Appeal’s Decision

The court of appeal concluded that the trial court properly sustained WRD’s demurrer to CBMWD’s petition for writ of mandate because CEQA does not apply, and even if it did, it would be trumped by the physical solution governing the Central Basin.

The court explained that CEQA is inapplicable to WRD’s declaration of a water emergency for two separate reasons. First, the declaration of a water emergency by itself has no environmental impact and therefore is not a project within the meaning of CEQA. Instead, the court found the declaration is “a mere statement” that the resources of the Central Basin risk declaration. CBMWD argued that other provisions of the Judgment may trigger significant environmental effects, but the court found that this argument is irrelevant because WRD’s only role was to declare the water emergency. Second, WRD had no discretion to alter the terms of the judgment even if it prepared an EIR and determined that the carryover and delayed replacement would have significant environmental effects. Thus, even if the declaration of the water emergency should be viewed together with its consequences, WRD’s decision was a ministerial act, rather than a discretionary approval triggering CEQA review.  

The court then explained that even if CEQA were applicable, it is trumped by the physical solution imposed in the basin. The court explained that where a court-imposed judgment is in place establishing a physical solution to a groundwater issue, the public agency has no judgmental controls to exercise, i.e. the power to act is reserved to the court. Here, the appellate court explained, the trail court properly denied CBMWD’s petition to mandate compliance with CEQA as it sought to “frustrate the physical solution in the Central Basin.” In particular, through its petition for writ of mandate, CBMWD sought to have WRD exercise its authority in contravention of the judgment by requesting WRD study consequences of the carryover and five-year replenishment, which are terms of the judgment establishing a physical solution (and not subject to WRD’s modification).   

The court declined to consider CBMWD’s remaining arguments because they were not properly raised in the appeal. (Laura Harris)