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Home My WebLink AboutRES NO 179-16(1)RESOLUTION NO. 1 79 -1 601 RESOLUTION OF THE BAKERSFIELD CITY COUNCIL STRIKING STATEMENT OF FACTS AND FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS. WHEREAS, the proposed Kern River Flow and Municipal Water Program ( "Program ") is a multi- objective flow management and water supply program. The primary objective is to allow substantial quantities of water to flow in the Kern River channel to protect, increase and enhance the water supply for the City of Bakersfield (City). The source of the water for the Program would be water accruing to the City's pre -1914 appropriative Kern River water rights, and additional unappropriated surplus Kern River water. Water flowing in the Kern River would provide multiple benefits to the City and its residents, before the water is ultimately used to satisfy the City's municipal water demand within its boundaries; and WHEREAS, it was determined that the Program may have a significant effect on the environment and, therefore, an Environmental Impact Report (EIR) was required for the Program in accordance with the California Environmental Quality Act (CEQA); and WHEREAS, the City of Bakersfield retained the professional consulting services of Horizon Water and Environment, LLC to prepare the Program EIR and related documents; and WHEREAS, on September 26, 2012, City adopted Resolution 108 -12, which certified the Final Environmental Impact Report SCH # 2011021042 ( "2012 EIR "), adopted a Statement of Facts and Findings, and adopted a Statement of Overriding Considerations for the Program; and WHEREAS, the adequacy of the 2012 EIR was challenged in a lawsuit entitled North Kern Water Storage, et al. v. City of Bakersfield, Tulare County Superior Court Case No. VCU251748 [consolidated with Case Nos. VCU251598 and VCU251535]; and WHEREAS, on July 6, 2015, the Tulare County Superior Court ruled that the 2012 EIR was deficient, only in that more description was needed in the Project Description to clarify the role and function of the Program EIR and what actions the City was taking, but that all other sections and analyses of the 2012 EIR were adequate; and okgAKF9J, m - Page I of 5 Pages - pRIOINAL WHEREAS, the Court issued a Judgment Granting a Peremptory Writ of Mandate requiring the City to set aside its certification of the 2012 EIR, which was done by the City Council on September 2, 2015; and WHEREAS, to satisfy the Court's ruling over the 2012 EIR, City prepared a Recirculated Draft Environmental Impact Report (R -DEIR) that revised the Project description to 1) clarify that the proposed Program is a policy to pursue acquisition of additional water supplies; 2) explain that the proposed Program does not, at this time, involve any new actions related to or uses of Kern River water; 3) describe future actions that would be reviewed in detail as part of the tiering process for project -level activities prior to approval of the proposed Program; and 4) make other changes and additions as directed by the Court, and WHEREAS, the R -DEIR found that there were no significant changes to any environmental resource evaluations previously analyzed in the 2012 EIR as the result of adding information to the Project Description, and, as such, no additional avoidance, minimization, and /or mitigation measures were required; and WHEREAS, on August 22, 2016, the R -DEIR was released for public review and comment, and a properly noticed public hearing on the R -DEIR was held on September 14, 2016 before the Water Board; and WHEREAS, the Water Board unanimously recommended that Staff prepare responses to the comments received on the R -DEIR and bring the new Final Environmental Impact Report for the Kern River Flow and Municipal Water Program to City Council for consideration; and WHEREAS, during the 45 -day public comment period, which ended on October 7, 2016, the City received written and oral testimony (at the public hearing); and WHEREAS, a new Final EIR (2016 Final EIR), which includes the 2012 EIR, the R -DEIR, and responses to public comments received on the R -DEIR, was prepared; and WHEREAS, the Clerk of the City Council set Wednesday, November 2, at 5:15 p.m. in the Council Chambers of City Hall, 1501 Truxtun Avenue, Bakersfield, California, as the time and place for a public hearing before the City Council to consider the proposed 2016 Final EIR, and notice of the public hearing was given in the manner provided in Title 17 of the Bakersfield Municipal Code; and WHEREAS, during the public hearing, City Council considered all facts, testimony, and evidence concerning the 2016 Final EIR and correspondence and responses; and o ePKF9m r m - Page 2 of 5 Pages - APIGINA6 WHEREAS, on November 2, 2016 the City Council adopted Resolution No. 179 -16 by which the City Council (a) certified the 2016 Recirculated FEIR for the Program (b) adopted a Statement of Facts and Findings, (c) adopted a Statement of Overriding Considerations, and (d) directed the City's Planning Division to file a Notice of Determination with the County Clerk of Kern County; and WHEREAS, the City Council will consider approving the Program at such time after the State Water Resources Control Board identifies quantities of water available to support the Program and further evaluation of potential environmental effects is analyzed in a subsequent CEQA analysis based on the specific Program water amounts; and WHEREAS, on November 18, 2016 the City filed a Supplemental Return of Peremptory Writ of Mandate ( "Supplemental Return ") with the Tulare County Superior Court, attaching a copy of said Resolution approving and authorizing the above- described actions; and WHEREAS, On December 28, 2016, Petitioners North Kern Water Storage District, Shatter Wasco- Irrigation District, Semitropic Water Storage District, the City of Shatter and Kern County Farm Bureau ( "the Northern Petitioners ") filed an Objection to Supplemental Return to Peremptory Writ of Mandate in response to the City's Supplemental Return. On December 29, 2016, Petitioner Kern Water Bank Authority ('KWBA ") filed an identical Objection to Supplemental Return to Peremptory Writ of Mandate in response to the City's Supplemental Return in their consolidated action. (KWBA and the Northern Petitioners are collectively referred to herein as "Petitioners "); and WHEREAS, On December 2, 2016, Petitioners jointly filed a Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief in the Kern County Superior Court ( "2016 Petition "), in which Petitioners alleged additional violations of CEQA in connection with the 2016 Final EIR. The 2016 Petition was thereafter transferred to the Tulare County Superior Court and consolidated with the pending actions challenging the 2012 EIR (North Kern Water Storage, et al. v. City of Bakersfield, Tulare County Superior Court Case No. VCU251748 [consolidated with Case Nos. VCU251598 and VCU2515351); and WHEREAS, On September 13, 2017, the 2016 Petition and Petitioners' objections to the City's Supplemental Return came on for hearing and trial in the Tulare County Superior Court before the Honorable Lloyd L. Hicks, Judge presiding; and. o``0ANe9N � m Page 3 of 5 Pages - u ORIGINAL' WHEREAS, On December 11, 2017, the Tulare County Superior Court issued a Judgment Discharging Peremptory Writ of Mandate and Denying Petition for Writ of Mandate ( "Judgment ") in which the Court overruled and denied Petitioners' Objections to Supplemental Return to Peremptory Writ of Mandate, and further denied, with prejudice, the 2016 Petition, subject only to the City taking further action with regard to Resolution 179 -16, as explained below; and WHEREAS, in the Judgment the Court additionally ordered the City to strike the Statement of Facts and Findings and Statement of Overriding Considerations from Resolution 179 -16 as premature in advance of the City's approval of the Program. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF BAKERSFIELD as follows: The above recitals and findings incorporated herein by reference are true and correct and constitute the Findings of the City Council in this matter. 2. Pursuant to the Judgment, the City Council hereby strikes Exhibit A, the Statement of Facts and Findings, and Exhibit B, the Statement of Overriding Considerations, from Resolution No. 179 -16, adopted by the City Council on November 2, 2016. 3. In all other aspects, Resolution No. 179 -16 remains unchanged, and this Resolution does not alter or affect the City Council's November 2, 2016 certification of the 2016 Final EIR for the Kern River Flow and Municipal Water Program. MENE 1.Ii�11111 o�OAxFy sT � m Page 4 of 5 Pages - Oa19INA6 I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on JAN 10 7016 by the following vote: AYES: COUNCILMEMBER'. RIVERA. GONZALES, WEIR. SMITH, FREEMAN, SWIII'AP tlER' ES. COUNCILMEMBER'. ABSTAIN COUNCILMEMBER. ENT'. COUNCILMEMBER: 514II1V(T TRi,✓he APPROVED JAN 10 7018 By 04.4v KAREN GOH Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City �Attorn�Jy By: V VIRbINIA 6ENNARO City Attorney 5 LCOO'CILIR. Iin19V l9.16- 1Gm1 Ri.e1 e1w.D- CHRISTOPHER GERRY ACTING CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield �gPKF9 o ��y s Page 5 of 5 Pages - oAiriNA6