by William W. Abbott Although never verified as the source, Mark Twain is considered the originator of the quote “whiskey is for drinking and water is for fighting.” Had he lived until the enactment of CEQA, perhaps he would have added something to his saying. As land use practitioners know, the water supply/CEQA/Subdivision Map Act interface has raised the bar in terms of what it takes for large development projects to move forward. A repeated challenge in this area is the dichotomy between theoretical water deliveries by the state and federal water contractors and actual deliveries, the difference commonly referred to as “paper water.” As readers of this newsletter may remember, a development project EIR analysis of water supply which concludes that adequate water exists based upon paper water is likely to be set aside by a reviewing court (see the March 2003 Abbott & Kindermann article on Santa Clarita Organization for Planning the Environment v. County of Los Angeles). This has been the trend in a number of court decisions going back to at least the year 2000. Jump forward to 2005, and the water supply challenge is neither fixed nor improving, and EIRs are still being successfully challenged. The challenge of preparing an adequate assessment is compounded if there is parallel litigation underway challenging the availability of that water source. Should the lead agency assume that the challenged water source is reliable, or exclude it as a possible source? For water challenged Southern California, the pressure is on to characterize the sources as legitimate. Regardless of the supply source is characterized, CEQA requires that there be adequate disclosure to the public. This is the theme of the recent decision of California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219. Regarding the water supply debate in the context of multiple lawsuits challenging the all too critical status of contracted water, the court observed “…the EIR is intended to serve as an informative document to make government action transparent. Transparency is impossible without a clear and complete explanation of the circumstances surrounding the reliability of the water supply.” The project opponents also argued that the project approval violated the City’s Hillside Ordinance. However, both the trial court and appellate court ruled for the City as the record contained detailed findings, supported by substantial evidence, which explained the basis for determining conformity to the Ordinance. The case also lays out a blueprint for how to successfully deal with rare and endangered species, which calls for later testing and monitoring at the time of construction. If discovered, then the applicant was required to submit a special-status plant restoration plan for review and approval by a planning department approved biologist. This case is important as it builds upon last years decision in Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, which at the specific plan level, permitted flexibility in completing CEQA requirements. California Oak Foundation tackles the same issue but in terms of a project level approval, and lays a foundation for later testing and mitigation formulation depending upon what exactly is discovered on site. William W. Abbott is a partner with Abbott and 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.