By Janell M. Bogue
The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 addressed the sufficiency of future water supplies for a long-term, large scale development. (See the Vineyard blog article.) In the case of Santa Clarita Organization for Planning the Environment v. County of Los Angeles (November 26, 2007) 2007 Cal.App.LEXIS 1938 (“SCOPE”), the Second Appellate District determined that an EIR for a long-term project met the requirements discussed in the Vineyard case.
In SCOPE, a local environmental group called Santa Clarita Organization for Planning the Environment challenged the EIR for the West Creek subdivision. West Creek is a proposed mixed use project in Los Angeles County (“County”) with over 2,500 residential units and 180,000 square feet of commercial space. West Creek was already the subject of a previous challenge (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715) in which the court held that the EIR was insufficient in its water supply analysis. (See the SCOPE I blog article.) The County, as lead agency, revised the EIR and recertified it. In the second challenge, the plaintiff environmental group challenged the revised water supply analysis in the recertified EIR and claimed that a water transfer that would supply a portion of the water was uncertain.
The EIR disclosed that the long term water supply for West Creek would be partially served by water from the State Water Project (“SWP”). The Castaic Water Agency (“Castaic”), which would serve the project, obtained nearly one half of its SWP water via a water transfer agreement with Kern Water Agency (“Kern”). The allocations to Kern from the SWP are governed by a document called the Monterey Agreement, which is subject to pending litigation. The plaintiff claimed that because of the uncertainty of the Monterey Agreement, the water supply section of the EIR was insufficient.
The SCOPE court, when reviewing the standards for water supply sufficient, referred back to the Vineyard case and said that four principles were established in that opinion:
First, CEQA’s informational purposes are not satisfied by an EIR that simply ignores or assumes a solution to the problem of supplying water to a proposed land use project. Decision makers must, under the law, be presented with sufficient facts to ‘evaluate the pros and cons of supplying the amount of water that the [project] will need.’
Second, an adequate environmental impact analysis for a large project, to be built and occupied over a number of years, cannot be limited to the water supply for the first stage or the first few years. While proper tiering of environmental review allows an agency to defer analysis of certain details of later phases of long-term linked or complex projects until those phases are up for approval, CEQA’s demand for meaningful information ‘is not satisfied by simply stating information will be provided in the future.’
Third, the future water supplies identified and analyzed must bear a likelihood of actually proving available; speculative sources and unrealistic allocations (‘paper water’) are insufficient bases for decisionmaking under CEQA. An EIR for a land use project must address the impacts of likely future water sources, and the EIR’s discussion must include a reasoned analysis of the circumstances affecting the likelihood of the water’s availability.
Finally, where despite a full discussion it is impossible to confidently determine that anticipated future water sources will be available, CEQA requires some discussion of possible replacement sources or alternatives to use of the anticipated water, and of the environmental consequences of those contingencies. The law’s informational demands may not be met, in this context, simply by providing that future development will not proceed if the anticipated water supply fails to materialize. But when an EIR makes a sincere and reasoned attempt to analyze the water sources the project is likely to use, but acknowledges the remaining uncertainty, a measure for curtailing development if the intended sources fail to materialize may play a role in the impact analysis.
The SCOPE court then applied these general principles to the case at hand. The court said that the West Creek EIR “does not simply ignore or assume a solution to the problem of supplying water to the project. It identifies specific water sources, including the Kern-Castaic transfer.” The plaintiff’s concerns centered on the third principle, and it challenged the EIR’s conclusion that the uncertainty stemming from the Monterey Agreement would not affect the water supply for Castaic and in turn the West Creek project.
The court looked to California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219 (See the A&K blog for a summary of this case.) There, an EIR was determined to be insufficient because it failed to discuss the legal uncertainty of water supply for a project. Here, however, the West Creek EIR disclosed that the Monterey Agreement was legally uncertain due to litigation. The court further held that there was sufficient evidence to support the EIR’s conclusion that the water transfer was permanent and valid, even if the Monterey Agreement was not upheld. This was enough to satisfy the third principle of Vineyard.
The plaintiff also claimed that the EIR was insufficient because it did not satisfy the fourth principle of Vineyard. They argued that the EIR failed to discuss potential water supplies if the Kern-Castaic water transfer was invalidated. The court held, though, that there was sufficient discussion. The EIR discussed the legal uncertainty due to the litigation over the Monterey Agreement. But the EIR also stated that the Monterey Agreement was unlikely to affect the transfer. The court said, “Per principle four [of Vineyard] we can confidently determine that the water will be available.”
Finally, the plaintiff claimed that the EIR was insufficient because it did not discuss the funding for cleanup of perchlorate contamination in several local water wells that would supply water to the project. The court again looked to principles from another case, this time Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252. That case emphasized that mitigation measures must be actually implemented and enforced. However, the SCOPE court held that there was nothing to suggest that the well cleanup mitigation measure would not be implemented. Since there was no evidence to suggest that the mitigation measure would not be implemented, the EIR was held to be sufficient.
The SCOPE court, in upholding the West Creek EIR, relied upon the four principles laid out in Vineyard for EIR sufficiency when dealing with water supply. The court emphasized that future water supplies need not be absolutely concrete, but any uncertainty must be discussed in the EIR. Further, evidence must support any conclusion regarding those future supplies for the EIR to be legally sufficient.
(This article was originally published on October 29, 2007 and was revised on November 28, 2007 subsequent to the Second Appellate District’s rehearing.)
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, LLP 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.