Tim Stroshane: When is a drought not an emergency?

See our full media release.

Most of the time in California, it seems.

Alameda County Superior Court Judge Alice Vilardi on Monday, March 15, 2010, ruled that the Governor and the California Department of Water Resources illegally approved the 2009 Drought Water Bank when they “improperly” exempted the water transfer program from the California Environmental Quality Act last year.


Governor Schwarzenegger’s February 2009 “drought emergency” proclamation, while asserting an emergency, failed to declare “that there was a disaster, or identify a specific geographically described disaster-stricken area” as California law requires. Nothing in the proclamation, said the judge, provided “substantial evidence of a sudden, unexpected occurrence, involving a clear and imminent danger, demand immediate action to prevent or mitigate loss of or damage to life, health, property, or essential public services” and only cited possible consequences “months or years in the future.” Because the Governor’s proclamation also didn’t waive CEQA requirements and actually directed DWR to protect the environment, the court ordered the agency to comply with CEQA even though the project is over.

In a suit brought last April 2009 by the Butte Environmental Council (BEC), the California Sportfishing Protection Alliance (CSPA) and the California Water Impact Network (C-WIN), the groups contested the Governor’s 2009 drought emergency proclamation as an improper use of CEQA’s emergency provisions, and that the state must still protect the environment.

Judge Vilardi's decision is available here (PDF).

Reviewing Governor Schwarzenegger's drought emergency proclamation, Judge Vilardi stated that his proclamation "did not establish an 'emergency' for purposes of" CEQA. "The proclamation states that the drought has continued for years, and had worsened," she continued in the decision. "These words describe a condition that is ongoing, not one that is sudden or unexpected" as CEQA's emergency provisions require.

Moreover, the governor's message cited "curtailments in water tranfseres as a result of new biological opinions and orders to complyl with environmental regulations" as well as increases in California's population since the last big drought in 1991. Finally, agricultural water demand was also a problem for the governor's proclamation, since "significant increases in planting of permanent, high-value crops not subject to fallowing" were planted in the areas that would benefit from the proposed Drought Water Bank.

We at C-WIN believe that California leadership simply must do a better job of planning for our water future and to move away from false emergencies such as last year's Drought Water Bank and this year's remake, the 2010-11 Water Transfer Program.