By William W. Abbott

In the opinion of the California Court of Appeal, Second Appellate District, (California Water Impact Network v. Newhall County Water Dist., (2008) Cal.App.LEXIS 554) a Water Supply Assessment ("WSA") is like a traffic impact study: by itself it is not subject to legal review except in the context of a lawsuit challenging the CEQA document. 

The facts involve California Water Impact Network’s ("CWIN") legal challenge to a WSA prepared by the Newhall County Water District ("NCWD") for the City of Santa Clarita (“City”). The WSA was required as part of the CEQA review prepared in response to a development application for a 584 acre industrial/business park, located in the City at the intersection of Interstate 5 and the Antelope Valley Freeway.[1]

This particular project was already the subject of CEQA litigation, in which the court invalidated the EIR based upon the water supply analysis (California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219). The City subsequently updated the EIR in conformance with the appellate court decision. Those efforts included a request to NCWD to prepare an updated WSA. CWIN urged NCWD to not approve the updated WSA. However, in March 2006, the District board approved the WSA, and forwarded the report to the City for processing as part of the updated EIR. Before the EIR was finalized, CWIN sued the District to set aside the WSA. In response, NCWD, the City, and developer filed a motion for judgment on the pleadings. They argued that the WSA was not a legally reviewable document by itself, that the plaintiff had to exhaust its administrative remedies against the City, that the plaintiff lacked standing and that the Water Code did not allow for private third party claims involving a WSA. The trial court granted affirmative relief and dismissed CWIN’s petition. CWIN appealed.

At the outset, the Court considered whether it should stay its decision, pending the resolution of the ongoing EIR litigation in the California Oak matter, as this litigation would resolve the issue of the sufficiency of the EIR including the WSA. However, the appellate court felt that the issue presented posed sufficient public interest and was capable of repetition, so it elected to address the claim of third party challenges. The appellate court affirmed the trial court ruling and dismissed CWIN’s petition. The appellate court disagreed with CWIN that the District’s action on the WSA constituted a reviewable decision. Rather, the WSA was a report, similar to a myriad number of other reports prepared for EIRs. The vehicle for challenging those reports is through the EIR. The appellate court also concluded that CWIN failed to exhaust its administrative remedies against the City, as it was the City who would ultimately make the determinations regarding reliability of water supply as part of its CEQA review process.

The Court of Appeal makes clear that Water Supply Assessments are reviewable in court. In this case, the petitioner simply selected the wrong vehicle to present its claims.

Bill Abbott is a partner at 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.



  [1] Project thresholds necessitating the preparations of WSA’s are found at Water Code section 10912.