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California Alfalfa & Forage Association

The Klamath Basin and Imperial Valley have grabbed headlines in California's water wars, but a court case with interesting implications was recently called to our attention.

We visited with an attorney who specializes in water rights litigation and learned about a court ruling that blocked construction of a residential project in Los Angeles County. Attorney William Marder of the Paxton-O'Brien law firm in Hollister explained that the Newhall Ranch development was blocked by a Kern County judge in 2000. The 22,000-home project was the largest in Los Angeles County history.

The judge required the developer and L.A. County to demonstrate that “adequate water sources are available for the build-out of the project.” Opponents of development argue that the decision requires developers to prove they have enough water to serve all houses and new businesses before building. Not surprisingly, noted Marder, “Developers take a narrower view. Either way, the fight between landowners and environmentalists is getting more intense.”

Project promoters insist the ruling only requires them to show that water will be available when needed. The net results, however, are substantial delays to the project, with opponents claiming victory.

Last year, however, Newhall Ranch developers purchased a separate water supply source to meet potable water needs, Marder reports. Therefore, he explains, they won't have to rely on “any of the 41,000 acre feet of state water project from the Castaic Creek Water Agency”.

“The Newhall Ranch litigation is likely to have two effects on California's water wars,” Marder maintains. “One, environmentalists will be even bolder in challenging development and are likely to argue that public entities should not approve projects because the identified water supplies are too speculative. They will argue that public entities should not allow developers to rely on imported water because of poor reliability in drought years,” the Paxton-O'Brien attorney continued. “When local planning commissions side with the developers, environmentalists are likely to be more eager to go to court.”

Secondly, developers may have to pay much more for water rights. According to Marder, a Ventura County supervisor predicted that future developers will end up paying $1,000 per acre foot for water rights. Challenges to projects based on water supply will affect who does the developing and at what cost, Marder pointed out. “Companies that retain agricultural entitlements will be able to buy water at a much lower price than those who haven't. Finally, where the demand for development is great enough, developers are likely to spend whatever it takes to buy water.”

Additionally, he noted, the legislature considered and then dropped a bill (AB 1015) that would have required cities and counties to address future water needs while writing 10- to 20-year general plans. If the bill had passed, it would have required cities and counties to identify possible water sources for subdivisions and shopping centers years earlier than they do now. For now, however, “there does not appear to be any legal authority that impacts the court's ruling”, Marder said.

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