By William W. Abbott
The Fourth Appellate District recently faced a similar CEQA timing question to that posed in Save Tara. Riverwatch v. Olivenhain Municipal Water District (Gregory Canyon Ltd) (2009) 170 Cal.App.4th 1186, (reissued and ordered published January 30). The case involved a landfill operator, who applied for and received County approval to operate a landfill. This approval was preceded by an EIR, which was challenged for adequacy by Riverwatch and the City of Oceanside. The trial court agreed with Riverwatch that the water supply analysis was insufficient, and that as the EIR recognized that recycled water from the water district might be used in the event that groundwater proved to be insufficient, that the EIR had to assess the potential impacts associated with the use of the offsite recycled water. The trial court ruled in favor of the opponents and ordered the County to set aside the EIR approval.
Prior to certification of a new EIR by the County of San Diego (“County”), the operator entered into an agreement with the Olivenhain Municipal Water District (“District”) which would permit the operator to purchase recycled water from the District for the purpose of trucking it to and use at the future landfill. The agreement provided that the operator was responsible for all costs and for CEQA compliance.
The County then issued a new DEIR, which included, as part of the impact analysis, the use of recycled water as contemplated by the operator-District agreement. The Pala Band and Riverwatch sued again, this time however challenging the operator- District agreement as violating CEQA, because no CEQA documentation had been prepared. The trial court ruled against the petitioners, and relying on the contract’s subject-to-CEQA provision, finding that the District had not “approved” a project.
Drawing upon Save Tara, the appellate court reversed, finding that the operator-District agreement required the exercise of discretion by the District and contained sufficient details to constitute a sufficient commitment (to sell water for up to 60 years) which required CEQA review. The agreement was critically silent on the issue of the District’s CEQA responsibilities and the reserved power of the District to exercise full discretion to consider appropriate mitigation measures and alternatives. The court also determined that the water supply agreement was part of the County’s larger landfill project under CEQA.
On a procedural basis, the appellate court found that the County was not an indispensable party to the later lawsuit against the District, and thus was not required to be joined in the later litigation.
Save Tara and Riverwatch together pose a significant limitation on drafting agreements with responsible agencies in advance of lead agency CEQA compliance. Any such agreement needs to preclude project commitment and preserve the exercise of agency discretion to consider and pursue appropriate alternatives and mitigation measures. To some extent, this conflicts with the practical need of the developer/applicant to obtain critical commitments, along with the CEQA obligation to describe and assess all project components, a challenge for those project elements outside of the control of the lead agency.
Bill Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.