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Peripheral Canal 0 THE Volume 5, Number 4 RIPHERAL June 1981 CANAL ENVIRONS, a non-partisan environmental law natural resources newsletter published by King Hall School of Law, and edited by the Environmental Law Society, University of California, Davis. Designation of the employer or other affiliation of the author(s) of any article is given for purposes of identification of the author(s) only. The views expressed herein are those of the authors, and do not necessarily reflect the position of the Uni- versity of California, School of Law, Envi- ronmental Law Society, or of any employer or organization with which an author is affiliated. Submission of Comments, Letters to the Editor, and Articles is encouraged. We reserve the right to edit and or print these materials. To the earliest Californians, conservation of water-the lifeblood Editorial Staff of all earth's children-was a sacred trust. Western water law, how- Editor-in-Chief ever, developed from the frontier ethic that whoever claimed some- Michael Endicott thing first owned it. Thus, in the California of 1981, water is treated Senior Editor and exploited as a commodity-a liquid gold. Woody Brooks Water is not scarce in California. Annual average run-off far Content Coordinator exceeds present and estimated future requirements. Unfortunately, George Wailes run-off occurs in winter and spring, when our needs are minimal. Editorial Coordinator Additionally, 70% of the total streamflow occurs north of Sacramento, Barb Malchick while 80% of the consumptive requirements lie farther to the south. California's extensive agricultural industry, which has rerouted large Manager Production amounts of surface water from marshlands to provide water for irriga- Anne Frassetto tion, is currently producing deserts. Continuing irrigation and the Financial Managers universal use of chemical fertilizers also salifies the soil. Groundwater Robert Goodrich overdraft increases each year. While supply and demand rarely coincide Gail Klein naturally, we compete to own rather than sensibly allot water resources, Art and the law has failed to recognize adequately or enforce protection of D. Hanlon the public interest. Technology has tended towards expansion to con- Staff sume and destroy rather than preserve and nurture. Hugh Barroll The Central Valley Project (CVP) of California began in 1933 to Brad Bening implement the state water plan. The Project and plan were designed to Fran Bremer rectify the state's natural water/need ratio imbalance. Because the state C. J. Golden could not sell bonds to fund the Project during the Depression, the Lisa Haage CVP was federally administered and financed beginning in 1937. Its Gerry Hobrecht declared purpose then was to provide for (1) river regulation, naviga- Jav Long tion and flood control; (2) irrigation and domestic uses; and (3), power. Laura Kosloff (Rivers and Harbors Act in 1937, as reprinted in Delta Water Facilities Clancv Nixon , Bulletin 76, July 1978, published by the California Department of Ernest Silva Water Resources.) Laurie Snyder The State Water Project (SWP) and the state water plan Wendy Thomson developed symbiotically after WW II. First, water from the north Sopsright. would have to be transported south. Next, something had to be done June 9hIl, Ensionmental La, Society about the middle, where the naturally complicated hydrological network 0 of the Delta and bays alternately flushes San Francisco Bay clean or siphons seawater inward. The Delta is the leak in the dyke of the state's freshwater system. A cross-channel transport facility has been (hIELK Lu on the boards since 1951 to solve this problem. (See CANAL, page 8) LETTER FROM focus of the debates. Will rejection of the S.B. 200 referendum, which contains some environ- THE EDITOR mental safeguards, mean the eventual passage of a canal bill with fewer or no safeguards? It is MICHAEL ENDICOTT likely to be several years before the Wild and Well this issue will be the last for the Scenic Rivers designation, that Andrus issued school year. Though we will close for the sum- just prior to leaving office, will be a concluded mer, the environmental law field is blooming matter. with controversy. A brief summer forecast The courts are seemingly playing a greater indicates that we will have much to write about role in environmental management and plan- in the fall. ning, and the problems they must cope with are Secretary of Interior Watt has gone ahead getting more complex. We hope you have with oil leases off Santa Maria, but apparently enjoyed reading the articles we have published he will withhold the more controversial nothern this year. We have endeavored to present the areas for later action. These increased oil arguments on both sides of the issues without leases make legislation concerning toxic sub- being too biased. stances and hazards necessary. Your continued support is greatly appreci- The fate of northern California's waters ated and we hope that you will contribute again will be increasingly discussed. The Peripheral next year with suggestions, articles, and Canal has turned into an extremely hot political $$$$$$$$$. A donation form can be found in potato to be left to the resolution of the voters the back of this issue (tell a friend 9. Thank in June 1982. The introduction of several you to all who made this year's publication pos- "unacceptable alternative' bills has shifted the sible. homes constructed and/or purchased before October 1976. NEW STATUS Although communities may not exclude mobile homes from areas zoned for single-family residences, local governments may determine certain lots within ri for the zone to be compatible for mobile home use. The purpose of this provision is to give local governments certain discretionary authority in implementing the new MOBILE HOMES law. S.B. 1960 further provides that a city or county may subject mobile homes (and the lots on which they are placed) to the same development standards that On September 26, 1980, Governor Brown signed would apply to a conventional single-family dwelling on into law Senate Bill 1960 which will allow mobile the same lot (e.g. building setback standards, side and homes in areas zoned for single-family dwellings. The rear yard requirements, architectural requirements and new law, which will take effect on July 1, 1981, is other restrictions). Architectural requirements, how- intended to offer Californians an additional opportunity ever, are limited to the mobile homes' overhang, to own affordable housing without sacrificing the advan- roofing material, and siding material. Furthermore, a tages of the traditional single-family residential neigh- local government may not subject the mobile home to borhood. S.B. 1960 precludes cities and counties any development standards which will have the effect (including charter cities, counties, or city and counties) of precluding it from being installed as a permanent from prohibiting the installation of mobile homes on residence. permanent foundation systems on lots zoned for Sponsors of the bill included the California State single-family residences. Previously, local governments Department of Housing and Community Development were able to prohibit mobile homes in areas zoned for and the Western Manufacturing Housing Association. single-family dwellings. Opposing the measure were local organizations and S.B. 1960 only applies to mobile homes certified lobby groups such as the League of California Cities under the National Mobile Home Construction and and the California Chapter of the American Planning Safety Standards Act of 1974 thereby excluding mobile (See MOBILE HOMES, page 7) fornia Energy Commission in the United States District Court for the Southern District of California. PLF asserted that California's three nuclear laws, the 1976 amendments to the Warren-Alquist Act, were pre- empted by the AEA. (See Cal.Pub.Res.Code sections 25524.1, 25524.2 and 25524.3.) The Energy Commis- sion countered that the AEA pre-empted state regula- tion of nuclear power only in the area of radiation PREEMPTION hazards. The Energy Commission reasoned that the state nuclear laws regulate reactor economics and relia- of state bility rather than radiation hazards; therefore, the laws do not conflict with federal regulation. nuclear plant Charles Warren, author of California's nuclear laws, states that they are "designed to provide a pause in the development of nuclear power plants until cer- REGULATION tain stipulated problems which may 'clog' the nuclear fuel cycle are resolved." For example, without the nuclear laws, spent fuel storage facilities may be exceeded, resulting in the premature shutdown of nuclear plants. The Energy Commission also challenged PLF's right to bring the case to court, arguing that plaintiffs Two Cases met none of the requirements for "standing' or "ripe- ness'. To have standing, plaintiffs must show that there is a case or controversy; that they have a personal Before the stake in the outcome; and that there is a real or threatened injury for which the court can grant relief. Closely related, ripeness requires that the harm asserted Ninth Circuit has matured sufficiently to warrant judicial intervention. The district court found that PLF had standing because one nuclear engineer had lost his job when San Diego Gas & Electric cancelled the Sundesert nuclear The decision whether states can exercise regula- power project in 1978. The project was allegedly can- tory authority over particular aspects of nuclear power celled because of the constraints imposed by the plants will be handed down by the United States Court nuclear laws. of Appeals for the Ninth Circuit in the very near On the merits, the district court held that section future. Two federal district courts have struck down 25524.2 was pre-empted by the AEA. This section most provisions of the Warren-Alquist Energy Act prohibits construction of nuclear power plants without (California Public Resources Code sections 25000 et state certification of a federally-approved high-level seq.) that regulate nuclear plant siting.
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