by William W. Abbott
On February 27, 2003, the Second District Court of Appeals issued another reminder that “paper water,” a phrase used to describe theoretical supplies of contracted water from the state and federal water projects, cannot be assumed to be the same as real water. Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715. The facts involved the continued efforts of the Newhall Land Company to develop a portion of its vast holdings northwest of Los Angeles. The project, West Creek, involved 2,545 housing units, 180,000 square feet of commercial retail space, and 46 acres of community facilities. At issue was the EIR’s assessment of water service impacts. Water for West Creek would come from different suppliers.
The EIR first assessed existing supplies from Castaic Lake Water Agency, consisting of existing aquifers plus 54,200 acre feet a year (“afy”) from the State Water Project (“SWP”), as well as supplies and demand on the Valencia Water Company, another proposed supplier. In assessing cumulative effects, the EIR investigated two scenarios including buildout of the Santa Clarita Valley. The EIR noted that without the West Creek project, there would be a shortfall between supplies and anticipated demand. This analysis assumed continued availability of the contractual allocations available to the districts from the State Water Project. The EIR then concluded that the ability to purchase additional contractual water resulting from the Monterey Agreement would balance supplies and demands in the long term.
Project opponents criticized the assumption that 100% of the SWP allotment would be available. Subsequent to the release of the draft, one of the districts acquired additional “wet year” supplies. This was documented in the response to comments, and the FEIR otherwise rejected the criticism of the water methodology. Both the DEIR and FEIR concluded that long range impacts could be avoided as long as projects were required to demonstrate adequate water availability.
The appellate court criticized the lead agency’s failure to disclose and assess the difference between SWP contract allotments and the ability to actually deliver water. The supply/demand gap had already been documented in Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, as well as Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373. While the real party in interest pointed to evidence that in fact the proper analysis had been conducted, this was dismissed by the court on the grounds that the analysis, while in the administrative record, was not in the EIR, or if in the EIR, buried in the appendix. Because the draft did not give any indication that the SWP entitlements could not be accepted at face value, the court held that the EIR violated CEQA in its failure to adequately disclose to the public and decision makers the potential effects of the project on water supplies.
This case continues a series of decisions dealing with the water supply/CEQA interface. As the decision turns on factual information contained in the DEIR, it does not represent a significant departure in terms of prior CEQA interpretations.
As a result of legislation over the last five years, lead agencies have to undertake new steps in evaluating development projects. Special CEQA requirements for larger projects (projects involving a general plan or specific plan amendments resulting in a land use intensification and a water demand equal to 500 residential units) can be found at Public Resources Code section 21151.9 (Guidelines, § 15083.5). In addition, the Subdivision Map Act requires a water supply analysis for subdivisions of 500 or more lots, or which exceed the 10% of hookups for small districts. (Gov. Code, § 66473.7)
William W. Abbott is a partner with Abbott & Kindermann, LLP in Sacramento. 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.