By William W. Abbott & Janell M. Bogue
Few CEQA cases reach the California Supreme Court. Accordingly, it is noteworthy that the court has issued two decisions on CEQA issues in the past eight months. The most recent decision in Vineyard Area Citizens, provides added extensive guidance on the interface between water supply and CEQA. The case also provides a more limited analysis on EIR recirculation.
The facts involve a major planning effort for a new growth area in eastern Sacramento County. After several years of study, the County certified an EIR (“Vineyard EIR”), and approved a community plan (Sunrise Douglas Community Plan) and a specific plan. One of the most controversial issues was the sufficiency of the long-term and short-term water supply analysis. The Vineyard EIR acknowledged that the short-term supply would come from groundwater pumping of a neighboring well field. However, the long-term water supply was unclear in the FEIR, and envisioned that a full analysis could not be completed until the Sacramento County Water Agency finished its environmental review of the Zone 40 supply (which was pending at the time of the Vineyard EIR’s release). Additionally, the court reviewed the question of whether or not a portion of the Vineyard EIR required recirculation due to potential impacts to salmon habitat disclosed in the FEIR. The lead agency (the City of Rancho Cordova, which took over the lawsuit after the area’s incorporation) and real parties in interest prevailed at the trial and appellate courts, but like the salmon in the dewatered Cosumnes River, the lead agency ran out of momentum at the high court.
General Guidelines for Water Supply Analyses
The Supreme Court first articulated the four basic guidelines to ensure CEQA adequacy of a water supply evaluation:
- An EIR cannot ignore or assume a solution to the problem of supplying water to a land use project. (Santiago County Water District v. County of Orange (1981) 118 Cal.App.3d 818.)
- An adequate environmental analysis cannot be limited to the water supply for the first stage or the first few years. (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715.)
- Water sources must bear a likelihood of actually proving available, and speculative sources or unrealistic amounts (“paper water”) will not be sufficient bases for decisions under CEQA. (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715.)
- When a full discussion leaves some uncertainty regarding future water sources, then CEQA requires some discussion of possible replacement sources or alternatives, and any environmental impacts from those contingencies. (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342.)
Importantly, the court clearly stated that there was no requirement, and indeed it would be unworkable, to require that a firm water supply be in hand at the time of land use approval. To require a firm water supply during initial approval of a long-term, large-scale development would mean that water planning would outpace land use planning. The court also outlined Senate Bill 610 and Senate Bill 221 of 2001 (Gov. Code, § 66473.7 and Water Code, §§ 10910-10912), which require water supply assessments for residential and other large-scale developments. The court noted that these statutes demand that “water supplies must be identified with more specificity at each step as land use planning and water supply planning move forward from general phases to specific phases.” If there is uncertainty in the water supply for a project, the court observed that an EIR may still satisfy CEQA if it acknowledges the uncertainty and discusses alternatives. The EIR must also disclose any significant environmental impacts from those alternatives, as well as discuss possible mitigation measures to minimize the impacts.
Sufficiency of the Near and Long-Term Water Supply Analysis
The California Supreme Court first reviewed the near-term water supply analysis (5,000 to 10,000 acre feet-annually drawn from groundwater) and held that it met all the required steps for adequacy under CEQA. The court said:
[T]he record contains substantial evidence demonstrating a reasonable likelihood that a water source the provider plans to use for the Sunrise Douglas project–a source that will initially be connected only to the Sunrise Douglas project, for which the Sunrise Douglas project developers will pay a special insurance fee, and which is not already allocated to other entitled uses–will indeed be available at least in substantial part to supply the Sunrise Douglas project’s near-term needs.
As to the long term supply, the court agreed with the petitioners that there was too great of a degree of uncertainty. As a result, the court said:
[T]he FEIR [left] the reader-and the decision makers-without substantial evidence for the…project at build out. More fundamentally, the…FEIR…provide[s] no consistent and coherent description of the future demand for new water due to growth in Zone 40 or the amount of new surface water that is potentially available to serve that growth.
The court rejected the Vineyard EIR’s reliance on a future environmental analysis of the Zone 40 water master plan as providing the required CEQA analysis. In effect, the Vineyard EIR attempted to tier off a future environmental document, and the court held that this was not proper under CEQA. The court acknowledged that by bringing the information forward into the area plan/specific plan EIR analysis, it could result in duplication in the later master plan update, and said:
If…such duplication would be an impractical waste of resources, the County could instead have deferred analysis and approval of the Sunrise Douglas project until the master plan update analysis was complete, then tiered the project FEIR from the programmatic analysis it performed there. What the County could not do was avoid full discussion of the likely water sources for the Sunrise Douglas project by referring to a not yet complete comprehensive analysis in the Zone 40 master plan update. CEQA’s informational purpose "is not satisfied by simply stating information will be provided in the future."
Lead agencies are faced with a fine balancing act. The lead agency need not demonstrate with certainty that the future water supply would balance with demand. Rather, the EIR must show “a likelihood [that] water would be available, over the long term, for this project.” The Vineyard EIR suffered from inconsistencies in key data over future demand and supply levels, as well as a path not completely chartered to reach the required balance point.
The lead agency attempted to maximize the benefits of a prior local water supply strategy hammered out by various competing interests (called the Water Forum) for which an EIR had been prepared. However, the Vineyard EIR failed to discuss the CEQA relationship of these documents. This editorial shortcoming was discussed in the previous Abbott & Kindermann Land Use Law Blog article “Pedigrees Are Not Just For Dogs: CEQA Documents Deserve Them Also.” Unfortunately, the Vineyard EIR failed to include a discussion of its pedigree, thereby frustrating the lead agency’s effort to piggyback off of the Forum EIR. The real parties in interest claimed that one mitigation measure, which provided that entitlements for the project would not be granted unless there was firm proof of water supply, assured that water would be available. The court disagreed, however, and held that an EIR may not “substitute a provision precluding further development for identification and analysis of the project’s intended and likely water sources.”
The court also addressed the issue of recirculation under CEQA. (Pub. Res. Code, § 21092.1.) The Vineyard DEIR lacked any discussion of groundwater extraction on the Cosumnes River, located to the south. This generated comments from state agencies and local organizations. The FEIR, in responding to the comments, stated in its analysis that the project would have a less-than-significant impact on groundwater draw down and the potential for dewatering effects on the Cosumnes. Despite this conclusion, the lead agency noted that there would be an exception, that during periods of very low flow, the depletions could impact timing and extent of dewatering, potentially impacting aquatic and riparian species and habitat. This was the very point being made by the commenting parties: that potential impacts could harm migrating salmon (noted by the court because of its “sensitivity and listed status”) during key time periods and in critical (and expanding) runs of the river. This potential exception to the less-than-significant impact was in fact the evidence of an impact which warranted recirculation and opportunity for public comment.
Bill Abbott is a partner and Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.