AgdaPkt 2010-02-01 clsd and regular

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7A - ATTACHMENT NO.3 Saltworks Proposal- Water Group Summary Report (22 January 2010) Page 49 Under this premise, the agreement with Nickel would have no environmental impacts because it would not result in a net increase in exports. The water team does not know whether the underlying premise - that Nickel had always exported at least 10,000 AFY out of the basin - is true. As explained below, however, it is true that, at least in some years (and possibly all years) since 2000-2001, the Nickel water has been transferred out of the basin. In this respect, out-of-basin transfers of Nickel water are part of the existing environmental setting, and therefore are a "baseline" condition for purposes of CEQA. (CEQA Guidelines, 9 15125, subd. (a).) Another premise of KCWA's 2000 Negative Declaration is that the impacts of the transfer were offset by the overall environmental benefits of the Kern River Restoration Program. That is, whatever the impacts of exporting this water, on the whole the environment would benefit from other aspects of the restoration program. The Courts have rejected such a "netting of benefits" approach to CEQA compliance. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.AppAth 1170.) The documents also show that the amount of water available to the owner of the lower Kern River rights varied dramatically from year to year. In many years, no water would be available. The KCWAlOWD/Nickel agreement, by contrast, committed to make this water available to Nickel each and every year, including dry years when Nickel formerly would not have had any water available for transfer or sale. The 2000 Negative Declaration concluded that the overall impact of the restoration program, including the delivery of 10,000 AFY to Nickel, would be beneficial, because the net increase in supplies available to KCWA would allow for increased water banking and restoration activities. KCWA found that the KCWAlOWD/Nickel agreement was within the scope of this earlier analysis, such that no further CEQA document needed to be prepared. On November 21, 2001, KCWA adopted another Negative Declaration authorizing KCWA to "continue to transfer" 10,000 AFY out of the KCWA service area. The water would be pumped out of KCWA's groundwater banking facilities, and then delivered to the California Aqueduct, either directly or by exchange. The 2001 Negative Declaration did not identify the recipients of the transferred water, stating that they were "unknown at this time." The Negative Declaration stated that the "recipient entity" of the transferred water would conduct CEQA analysis to analyze local impacts. The Negative Declaration did not indicate whether KCWA Board approval would be required for each year's transfer. The 2001 Negative Declaration generally concludes the continued transfers will have "no impact." The water team does not know whether comments were submitted in 2000 or 2001 raising questions about KCWA's analysis of the sale of Nickel water, or the impacts of delivering 10,000 AFY back into the aqueduct as required by the KCWAlOWD/Nickel agreement, or the legality of KCWA's "netting of benefits" approach to its analysis. The water team does not know whether KCWA's approach was legally defensible. The statute of limitations to challenge KCWA's CEQA efforts in 2000 and 2001 expired many years ago. (Pub. Resources Code, 921167.) KCWA's CEQA compliance efforts in connection with approving the agreement are presumptively valid. (Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal.4th 42