by Robert T. Yamachika The Third District Court of Appeal recently decided a case addressing the interplay of water supply analysis and land use planning. As many readers of aklandlaw working papers already know, the California Legislature adopted Senate Bill 610 (Chapter 643, Statutes of 2001) and Senate Bill 221 (Chapter 642, Statutes of 2001) in 2002 to improve the link between information on water supply availability and certain land use decisions made by cities and counties. SB 610 and SB 221 are companion measures which seek to promote more collaborative planning between local water suppliers and cities and counties. Both statutes require detailed information regarding water availability to be provided to the city and county decision-makers prior to approval of specified large development projects. Both statutes also require this detailed information be included in the administrative record that serves as the evidentiary basis for an approval action by the city or county on such projects. For more on SB 610/221, see Abbott & Kindermann’s November 2004 article on the legislation. In Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2005) 127 Cal.App.4th 490, the Third District Court of Appeal upheld an EIR prepared for the Sunrise Douglas Community Plan and the SunRidge Specific Plan (collectively “Project”). The Project is a 6,015 acre mixed use development which includes up to 22,000 dwelling units in eastern Sacramento County now within the City of Rancho Cordova. The heart of the proceeding revolved around the Project’s undeniable environmental impacts and in particular “still-vexing water supply issues.” The petitioners argued that the Project should not have been approved because the County did not ensure the existence of an adequate water supply. The proposed long-term water supply for the Project area included a mix of existing groundwater entitlements (the North Vineyard Well Field) and unconfirmed, but planned, future surface water deliveries. Much of the Project EIR’s analysis of the proposed future surface water supply was based on the Water Forum Plan (“WFP”), a water policy project that evaluates water resources and future water supply needs of the Sacramento region, and the WFP EIR.The petitioners argued that because there was no firm source of surface water for the later phases of the project, there had been no analysis of the environmental impacts of supplying the substantial amount of water the project would need. In support of this argument the petitioners relied on Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, which struck down an EIR for a twenty-five year phased project because the project had not identified water supplies beyond the first five years. In Stanislaus, because the County knew neither the source of the water the project would use beyond the first five years, nor what significant environmental effects might be expected when the as yet unknown water source was used, the court found that the purpose of CEQA was bypassed. The Vineyard court held that the EIR provided an adequate analysis of water supply issues because it identified and analyzed the potential water supply sources even though the final availability of those waters sources was not yet confirmed. The court distinguished Stanislaus and other cited cases because in those cases, there was a complete failure to identify the actual or potential sources of water for the projects in question, leaving the question of water availability to be entirely speculative. fn1 In contrast, the potential water supply sources in Vineyard had been identified and studied in detail. The Vineyard court held that,
“The direct connection between this project and the (WFP) process makes this case fundamentally different from those cited above. Instead, this case appears to be similar to the ‘compromise’ position described by the Court in Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 373, which suggests that an EIR is adequate if it identifies and analyzes potential sources of water even though the final availability of those sources is not confirmed. Such an approach makes sense as a practical matter. To hold otherwise would require each project covered by the (WFP) to revisit all of the issues addressed in that massive collaborative effort each time a new project was proposed…Such an approach would be wasteful and even possibly counterproductive in that it might touch off a confused scramble for water rights rather than the planned, thoughtful approach that appears to be in place…”
Finally, the Vineyard court also rejected the petitioners arguments based on Santa Clarita where an EIR reliant upon State Water Project (“SWP”) water entitlements was held to be illusory “paper water” because SWP deliveries fluctuate annually, and because the SWP had not been built to its originally envisioned capacity. The Vineyard court distinguished Santa Clarita from the Vineyard case stating that:
“There, the EIR relied on water which did not exist and would not exist in the foreseeable future. Therefore, the EIR failed to analyze impacts of servicing the project. Here, specific sources of water have been identified and the impacts thereof analyzed. Although they do not exist, they are future water supplies, not illusory supplies. That is a critical difference: It is possible to conduct environmental review of future supplies, which is what was done here, whereas, as shown by Santa Clarita, reviewing impacts of imaginary supplies is as useless as counting angels on the head of a pin.”
Worth Remembering! It should be noted that the Vineyard court placed an emphasis on the existence of the WFP (which is intended to ensure a secure and environmentally safe water supply for Sacramento County) and the EIR prepared for the WFP. In the Vineyard case, the WFP is a multi-jurisdictional water policy project that previously underwent environmental review and plays a key role in the water supply of the Project. The WFP EIR was certified, prior to the action on the Project, and the WFP EIR specifically identified the potential sources of water that would be tapped to fulfill future county water needs. The Project EIR specifically referred to the WFP EIR and specifically stated that the WFP would have significant environmental impacts in a number of areas. Based on Vineyard it can be argued that as long as an EIR identifies the future source of water and analyzes the environmental impacts associated with tapping the source of water there is no violation of CEQA. In addition to the water supply issues addressed by Vineyard , the case also provides an important lesson for CEQA appellants. The court emphasized the importance of a fair statement of facts and the necessity of explaining to the appellate court why the trial court’s opinion erred. In Vineyard, the court rejected many of the appellant’s claims because their statement of facts misstated record, thereby forfeiting their evidentiary claims. fn1 The Vineyard case provides the following cites as examples: In Santiago County Water Dist. v. County of Orange (1981) 118 Cal. App. 3d 818, the local water company had not indicated that it could supply the amount of water the project would demand; in Stanislaus, the EIR flatly acknowledged that no sources had been established for later phases of the project (and suggested that if such sources never were found, the later phases simply would not be built); and in Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715 the State Water Project allotments that were relied upon…were demonstrably illusory. Since the actual sources of water for the projects were not known, a full and realistic environmental review of the effects of supplying water to the projects from those sources simply could not have been done. Robert Yamachika 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.