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James A. Abatti et al v. Imperial Irrigation District

April 26, 2012

JAMES A. ABATTI ET AL., PLAINTIFFS AND APPELLANTS,
v.
IMPERIAL IRRIGATION DISTRICT, DEFENDANT AND RESPONDENT.



(Super. Ct. No. ECU04899) APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

I.

INTRODUCTION

The California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)*fn1 generally requires that a public agency prepare an environmental impact report (EIR) whenever the agency undertakes a project that may have a significant effect on the environment. (§§ 21100, 21151.) More specifically, "[i]f the agency's initial study of a project produces substantial evidence supporting a fair argument the project may have significant adverse effects, the agency must (assuming the project is not exempt from CEQA) prepare an EIR." (Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319.) If the agency determines by way of an initial study that the project will not have a significant effect on the environment, the agency may issue a negative declaration to this effect. (Ibid.; § 21064.)

Section 21166 provides that once an agency prepares an EIR, no EIR shall thereafter be required for the project unless certain statutorily prescribed circumstances occur, such as substantial changes to the project or to the circumstances under which the project is being undertaken. Guidelines, section 15162 (Cal. Code Regs., tit. 14, § 15162)*fn2 provides a similar limitation on subsequent environmental review following an agency's adoption of a negative declaration. Guidelines, section 15162 has been held to be a valid regulation that implements the principles contained in section 21166. (Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1481) (Benton).)

In 2006, the Imperial Irrigation District (the District) adopted a resolution related to a plan ("Equitable Distribution Plan" or "EDP" or "Project") for the distribution of water in the event of an actual or potential shortage of water (2006 EDP Resolution). Concurrently with its adoption of the resolution, the District adopted a negative declaration (2006 Negative Declaration) in which it concluded that the EDP would not have a significant effect on the environment. In 2007, the District adopted regulations implementing the EDP (2007 EDP Regulations). In 2008, the District adopted additional regulations (2008 EDP Regulations) that revised the 2007 EDP Regulations. Concurrently with the 2008 EDP Regulations, the District adopted an environmental compliance report that concluded that the 2008 EDP Regulations did not warrant further environmental assessment under CEQA.

Appellants James A. Abatti, Ronald C. Leimgruber, Laura L. Leimgruber, Douglas Westmoreland, Steven Nickus, and Felipe Irigoyen, owners and/or users of agricultural land in Imperial County (appellants), filed a second amended verified petition for writ of mandate/complaint ("petition" or "petition for writ of mandate") in the trial court in which they maintained that the District failed to comply with CEQA in adopting the 2008 EDP Regulations, among other claims.*fn3 Appellants sought an order directing the District to set aside the 2008 EDP Regulations "until such time as CEQA review has been completed." The trial court held a hearing on the CEQA claim, took the matter under submission, and later issued an order denying the petition as to appellants' CEQA claim. Applying Benton, the court concluded that there was substantial evidence to support the District's determination that the adoption of the 2008 EDP Regulations did not require additional CEQA review. After the appellants dismissed their remaining non-CEQA claims without prejudice, the court entered a judgment on the CEQA claim in favor of the District.

Appellants appealed from the judgment. While their appeal was pending, we requested that the parties submit supplemental briefs addressing whether this court has appellate jurisdiction in light of the fact that the appellants dismissed several non-CEQA causes of action without prejudice prior to the trial court's entry of judgment on the CEQA claim. Upon consideration of the parties' supplemental briefs and further review of the issue, we conclude that a party may appeal from a judgment rendered on a particular claim in a case, notwithstanding that certain other claims have been dismissed without prejudice, as long as there are no remaining claims pending between the parties and the parties have not entered into a stipulation that would facilitate potential future litigation of the dismissed claims. Since there are no such remaining claims and there is no such stipulation in this case, we conclude that we have appellate jurisdiction over appellants' appeal.

On the merits, appellants claim that the trial court erred in denying their CEQA claim. Appellants maintain that this court should "reject Benton," a decision that they contend is "fatally flawed," and hold that the District erred in relying on section 21166 and Guidelines, section 15162 in determining whether preparation of an EIR was required in connection with the adoption of the 2008 EDP Regulations. Appellants also argue that there is substantial evidence to support a "fair argument" that the 2008 EDP Regulations would have a significant effect on the environment, and that preparation of an EIR is thus required. In the alternative, appellants contend that even if section 21166 applies, because the regulations substantially increased the priority preference that industrial users of water would receive over agricultural users in times of a water shortage, the District was required to prepare an EIR prior to adopting the 2008 EDP Regulations. Appellants further maintain that there was a substantial change in the circumstances under which the EDP would be implemented, namely that the District had just approved a water supply contract with the owner of a new power plant that would be a significant new industrial user of water.

We conclude that the Benton court correctly determined that Guidelines, section 15162 is a valid regulation that implements the principles contained in section 21166.*fn4 We further conclude that there is substantial evidence to support the District's determination that it was not required to prepare an EIR prior to adopting the 2008 EDP Regulations. Specifically, we conclude that, contrary to appellants' claim, the 2008 EDP Regulations did not in fact increase the priority preference that industrial users would receive over agricultural users in case of a water shortage. We further conclude that there is substantial evidence to support the District's implicit determination that its approval of a water supply contract with the owner of a new power plant did not constitute a substantial change in the circumstances under which the EDP was being implemented.

Accordingly, we affirm the judgment denying appellants' petition for writ of mandate on appellants' CEQA claim.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The 2006 EDP Resolution and the 2006 Negative Declaration

In November 2006, the District adopted a resolution related to the Equitable Distribution Plan. The 2006 EDP Resolution explained the background of the EDP, in part, as follows:

"WHEREAS the District is required by State law to adopt rules and regulations for the equitable distribution of water within the District.

"WHEREAS the [District] Board desires to develop and implement a plan for the equitable apportionment of water in the event that in any year, the expected demand for water is likely to exceed the supply expected to be available to the District (referred to herein as a supply/demand imbalance or 'SDI' condition)."

With respect to compliance with CEQA, the 2006 EDP Resolution provided in relevant part:

"[B]e it hereby resolved as follows:

"1. The [District] Board has determined that an apportionment plan applicable during an SDI condition should be adopted, in order to satisfy the District's obligation under the California Water Code to provide for the equitable distribution of water within the District.

"2. In order to comply with CEQA:

"a. The Board has reviewed the Initial Study relating to the proposed

Equitable Distribution Plan and the Draft Negative Declaration, which indicates that the Plan will not have significant effect on the environment.

"b. The Board has reviewed and considered the comments received on the Draft Negative Declaration.

"c. The Board has reviewed and considered the Final Negative Declaration attached to this Resolution as Attachment A.

"d. The Board finds that: (i) the Final Negative Declaration provides sufficient assessment of the environmental impacts of the proposed Equitable Distribution Plan pursuant to CEQA; (ii) although the Final Negative Declaration incorporates changes to the Draft Negative Declaration, none of those changes constitutes 'substantial revision' requiring recirculation pursuant to the criteria set forth in CEQA Guidelines Section 15073.5; (iii) the Final Negative Declaration reflects the Board's independent judgment and analysis; and (iv) on the basis of the whole record (a copy of which shall be maintained by the General Manager) there is no substantial evidence that the proposed Equitable Distribution Plan will have significant effect on the environment.

"e. The Board hereby approves and adopts the Final Negative Declaration."

The 2006 EDP Resolution described the Equitable Distribution Plan as follows:

"The [District] Board hereby approves the development and implementation of the Equitable Distribution Plan, including the following elements:

"a. Water shall be apportioned among agricultural users using the straight-line method of allocation, based upon the ease of implementation and efficiency of this method.

"b. Transfer of the right to use such apportionments among agricultural users shall be permitted, subject to reasonable terms and conditions.[*fn5 ]

"The [District] Board hereby directs the General Manager to prepare the rules and regulations necessary or appropriate to implement the Equitable Distribution Plan within the District. The General Manager is authorized to finalize the Equitable Distribution Plan, so that water users will be made aware of, and be able to rely upon, the rules and regulations which will be used in the future when an SDI

occurs. Finally, the General Manager is authorized to implement the Plan in the event of an SDI condition."

The 2006 Negative Declaration described the Project, in relevant part, as follows:

"Under the proposed Equitable Distribution Plan, during, or not later than, October of each year, [the District's] staff will forecast water demand and available supply for the following year and make a recommendation regarding the risk of water user demands exceeding available supply for the following calendar year. If the staff analysis concludes that forecasted water user demands will exceed the annual supply, then a Supply Demand Imbalance (SDI) will be recommended. Declaration of an SDI situation requires implementation of allocation of water pursuant to the Equitable Distribution Plan for the following year. If demand is not predicted to exceed supply, then Equitable Distribution is not needed for the following year. The SDI determination can be revisited at any time during the year to determine if Equitable Distribution should continue or be suspended for the remaining months of the year."

The 2006 Negative Declaration described the manner by which apportionment among different types of water users would be conducted under the EDP:

"In the [District] water service area, agricultural lands cultivating vegetables and field crops currently account for about 90% of the water use. Permanent crops account for an additional 6%. The remaining 4% is divided between municipal, industrial and miscellaneous uses. The Equitable Distribution Plan acknowledges that some groups may warrant lesser cutbacks than others. For some users, such as industrial users, permanent crops and dairies, a cutback in water deliveries has the potential to result in greater economic harm compared to other users. In addition, cutbacks to some user types such as municipal users which account for only 3% of the total current water demand, may be costly to implement, but provide only very minor contribution to reducing the overall water demand. In the event of an SDI, the proposed Equitable Distribution Plan would allocate the available water supply to water user accounts based on the following water use categories:

"* System Losses - Annual Estimated Loss in AF [Acre

Feet*fn6 ]

"* Supply of Last Resort - Set Amount or percentage of total

supply in AF

"* Municipal Users - AF per Capita

"* Industrial Users - Contracted Amount in AF

"* Feed Lots - AF per animal

"* Permanent Crops - Acre Feet based on Crop Needs

"* Agricultural Lands per Acre - Straight Line

Apportionment: Remaining Supply divided by authorized total acres"

The 2006 Negative Declaration also explained that industrial users enter into contracts with the District to receive a specified amount of water from the District, and that such users would continue to receive the contractually specified amounts of water from the District in the case of a supply/demand imbalance declaration and implementation of the EDP:

"Industrial users within the [District] water service area include geothermal facilities, food processing facilities, manufacturing plants etc. These users hold existing contracts within [the District] to receive a specified amount of water that is based on the requirements specific to their industry and are based on reasonable use. In the event of an SDI to avoid significant economic harm to these industries the Equitable Distribution Plan includes continuing to provide these users with the contracted amount in acre feet."

B. The 2007 EDP Regulations

In December 2007, the District adopted regulations implementing the EDP, as required by the 2006 EDP Resolution. The 2007 EDP Regulations provided the manner by which apportionment would be conducted under the EDP in the event of the declaration of a supply/demand imbalance among different types of water users, as follows:

"Apportionment of Supply. Upon SDI Declaration, District shall apportion the estimated supply among the types of water users in the District using the following criteria:

"a. Supply of Last Resort will be two percent 2% of Available Water Supply;

"b. Municipal Users--Base amount of 2006 usage plus District-wide average per capita use multiplied by the ...


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