New Development water Planning Measures

The final environmental impact report (FEIR) for the proposed development project concluded the average water demand for the total project would be approximately 22,103 acre feet annually (afa), which would come from both groundwater and surface water supplies. Initially, groundwater in an amount of about 5527 afa would come from a newly developed source, the North Vineyard Well Field (Well Field), to be built southwest of the development. Projected additional water needs would be met with surface water diverted from the American River. Both the ground and surface water supplies would be delivered by the Sacramento County Water Agency (the Water Agency). However, because the Sunrise Douglas development at the time the FEIR was adopted did not have legal rights to the projected Well Field and surface water resources, and transmission and treatment facilities had not yet been built, the FEIR contemplated that legal entitlements for development would be dependent on the securing of final agreements and facilities financing. The FEIR's mitigation measure WS-1 therefore specified that entitlements (e.g., subdivision maps, parcel maps, use permits, building permits, etc.) would not be granted 'unless agreements and financing for supplemental water supplies are in place.'

Plaintiffs, Vineyard Area Citizens for Responsible Growth Inc.(Citizens), objected to the County's approval of the planned project and brought a petition for writ of mandate to overturn that approval. The complaint charged, inter alia, that the plan's approval violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, ' 21000 et seq.) because the environmental impact report (EIR) prepared for the project failed to adequately identify and evaluate future water sources for the development. The superior court denied the petition, and the Court of Appeal affirmed, holding that the FEIR's water supply discussion satisfied CEQA because it did not rely on speculative or illusory sources.

Supreme Court Clarifies Level of Certainty Required

On appeal to California's Supreme Court, plaintiffs claimed the EIR failed to identify 'the actual source of most of the water needed to fill the project's long-term demand,' serving to obscure 'the undisclosed environmental impacts of the project.' Plaintiffs were unconvinced by the County's assurance that development entitlements would not be granted until agreements and financing for water supplies were actually in place, as such assurances sidestepped the County's obligation to consider the water supply impacts before granting project approval. As the Supreme Court framed it, the question therefore was just 'how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.'

The Court of Appeal had held the FEIR's treatment of water sources and impacts satisfied CEQA's requirements because 'although they were not completed,' they also 'were not speculative.' Unlike the reliance on illusory supplies condemned in earlier appellate decisions, the Court of Appeal concluded that the FEIR identified and assessed the impacts of using 'future water supplies.' Rancho Cordova prevailed with its argument that CEQA requires only that the County 'use its best efforts to disclose all that [it] reasonably could, not to actually secure a water source and work out all the uncertainties and competing demands before an environmental review would be adequate.'

The Supreme Court noted, however, that the fundamental purpose of an EIR is to provide public agencies and the public in general with detailed information about the effects a proposed project will likely have on the environment. ' 21061. Still, CEQA itself does not define the level of certainty regarding water supplies necessary for full compliance with CEQA, and no California Supreme Court decision had yet filled in that blank. The court therefore turned to several decisions out of the Courts of Appeal, all of which it found dealt adeptly with the sufficiency of an EIR's analysis of future water supplies.

In Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, the EIR was found wanting where a proposed mine project was projected to consume 12,000 to 15,000 gallons of water daily from the local water district while giving no information concerning the impacts on water service elsewhere if such amounts were supplied to the mine.

In Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, the EIR for a large residential community and resort noted that '[a] firm water supply has not yet been established beyond the first five years of development, although the applicant is pursuing several sources.' The EIR did list a number of possible sources of long-term water supply, but offered no analysis of the likelihood of obtaining such water or of the environmental impacts that would follow if they were obtained. Instead, the EIR left for future environmental review any analysis of new water acquisitions. The approving agency claimed this method was adequate to alleviate environmental concerns because future phases of development would not be approved if the water issues were not ironed out. The appellate court held this treatment of future water supplies defeated CEQA's fundamental informational purpose.

Two other cases the court discussed ' Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, and Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342 ' similarly held that reliance on hoped-for future entitlements to water were inadequate to support development plan approval.

From these four cases, the Supreme Court gleaned four general principles to serve as a guide for analyzing whether projections of future water supplies are sufficient to meet CEQA standards: 1) An EIR cannot ignore a problem or assume a solution to one because decision makers must have sufficient facts before them from which to evaluate the pros and cons of supplying the project's water; 2) Environmental impact analysis for a large project that will be occupied for many years cannot be limited to the water supply for the first stage or the first few years; 3) It must be likely that the identified future water supplies will become available; and 4) If there is uncertainty about the availability of the specified future water supplies, an analysis must be made of possible alternative sources and the environmental impacts of these.

Applying the Four Rules to Vineyard Area Citizens

The court found nothing wrong with the FEIR's analysis of the Sunrise Douglas plan's proposed use of 5000 ' 10,000 afa of groundwater from the Well Field for near-term needs. Although other users also were entitled to use that source, and the combined effects of these uses might deplete it, the EIR discussed this fact and addressed it. In addition, adequate evidence was presented that the Sunrise Douglas project would likely get the water it projected from the Well Field source. Said the Court, 'Uncertainty in the form of competition for identified water sources is an important point that should be discussed in an EIR's water supply analysis, and was here, but it does not necessarily render development of the planned water supply too unlikely.'

The arguments supporting the FEIR's findings regarding long-term surface water supplies were more problematic. There were inconsistencies within the report as to long-term supply and demand, and between the FEIR and an earlier-commissioned study on which many of the FEIR's assumptions were based. (That study was made for the Water Forum, a group of public and private stakeholders, including the County, the City of Sacramento, other water providers, business groups and environmental organizations that undertook long-term planning to meet increased demand for American River water through the year 2030.) The explanation given for these inconsistencies was that the new surface water supplies were to be used conjunctively with groundwater supplies. However, stated the court, '[T]his explanation is vague and unquantified. By itself, reliance on 'conjunctive use' is inadequate ' How much groundwater, existing and new, will be used with how much new surface water? In what combinations will these sources be used during wet and dry years, respectively?'

The assertion in the FEIR notes that full analysis of the planned conjunctive use program would have to await environmental review of the Water Agency's master plan update (which was pending at the time the FEIR was released) was inadequate to excuse the analytical omissions in the FEIR; if the Water Agency environmental impact analysis was important to understanding the long-term water supply for the Sunrise Douglas project, it should have been performed in the Sunrise Douglas project FEIR, or approval of the project could have awaited the Water Agency's analysis. The County could not simply avoid full discussion of the likely water sources for the Sunrise Douglas project by referring to an as-yet uncompleted Water Agency master plan. The court found that CEQA's informational purpose could not be satisfied by simply stating information would be made available in the future.

In sum, although the County's burden in preparing the FEIR for the project did not necessarily involve demonstrating with certainty that the County's future water supplies would be sufficient to meet the development's and the County's other water users' total demands, some meaningful discussion was necessary before the public and decision makers could be expected to have any confidence that the identified sources were actually likely to fully serve everyone's needs. This being the case, approval of the FEIR was in violation of CEQA.

The Impact

In a partially dissenting opinion, Justice Marvin Baxter said the majority decision placed an unrealistic requirement on developers to make long-term water resource plans not only for their own projects, but for all other nearby projects, thus increasing costs and discouraging development.

Sacramento-based Deputy Attorney General Gordon Burns, who argued part of the case as an amicus curiae in support of a group opposing the development, said the court's decision makes the rules clearer. 'As a practical matter,' he said, 'it means that water planning and land-use planning are going to have to be more closely coordinated.'

Janice G. Inman, Esq., is Editor-in-Chief of this newsletter.

The California Supreme Court, in its recent 6-1 decision in Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova, 2/1/2007, concerning the Sunrise Douglas Community Plan, raised the number of hoops developers must leap through to ensure that their large-scale developments' future water needs will be met without too great an impact on the environment. The decision in Vineyard Area Citizens not only put a hold on a huge development planned for Rancho Cordova, but also placed other developers in the state on notice that certain shortcuts in water-use planning will not be accepted by the courts when challenged.

The Plan, and the Problem

The County of Sacramento approved a plan to build 22,000 residential units, a development expected eventually to house as many as 60,000 people. The development would also include schools, parks and commercial spaces.

The final environmental impact report (FEIR) for the proposed development project concluded the average water demand for the total project would be approximately 22,103 acre feet annually (afa), which would come from both groundwater and surface water supplies. Initially, groundwater in an amount of about 5527 afa would come from a newly developed source, the North Vineyard Well Field (Well Field), to be built southwest of the development. Projected additional water needs would be met with surface water diverted from the American River. Both the ground and surface water supplies would be delivered by the Sacramento County Water Agency (the Water Agency). However, because the Sunrise Douglas development at the time the FEIR was adopted did not have legal rights to the projected Well Field and surface water resources, and transmission and treatment facilities had not yet been built, the FEIR contemplated that legal entitlements for development would be dependent on the securing of final agreements and facilities financing. The FEIR's mitigation measure WS-1 therefore specified that entitlements (e.g., subdivision maps, parcel maps, use permits, building permits, etc.) would not be granted 'unless agreements and financing for supplemental water supplies are in place.'

Plaintiffs, Vineyard Area Citizens for Responsible Growth Inc.(Citizens), objected to the County's approval of the planned project and brought a petition for writ of mandate to overturn that approval. The complaint charged, inter alia, that the plan's approval violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, ' 21000 et seq.) because the environmental impact report (EIR) prepared for the project failed to adequately identify and evaluate future water sources for the development. The superior court denied the petition, and the Court of Appeal affirmed, holding that the FEIR's water supply discussion satisfied CEQA because it did not rely on speculative or illusory sources.

Supreme Court Clarifies Level of Certainty Required

On appeal to California's Supreme Court, plaintiffs claimed the EIR failed to identify 'the actual source of most of the water needed to fill the project's long-term demand,' serving to obscure 'the undisclosed environmental impacts of the project.' Plaintiffs were unconvinced by the County's assurance that development entitlements would not be granted until agreements and financing for water supplies were actually in place, as such assurances sidestepped the County's obligation to consider the water supply impacts before granting project approval. As the Supreme Court framed it, the question therefore was just 'how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.'

The Court of Appeal had held the FEIR's treatment of water sources and impacts satisfied CEQA's requirements because 'although they were not completed,' they also 'were not speculative.' Unlike the reliance on illusory supplies condemned in earlier appellate decisions, the Court of Appeal concluded that the FEIR identified and assessed the impacts of using 'future water supplies.' Rancho Cordova prevailed with its argument that CEQA requires only that the County 'use its best efforts to disclose all that [it] reasonably could, not to actually secure a water source and work out all the uncertainties and competing demands before an environmental review would be adequate.'

The Supreme Court noted, however, that the fundamental purpose of an EIR is to provide public agencies and the public in general with detailed information about the effects a proposed project will likely have on the environment. ' 21061. Still, CEQA itself does not define the level of certainty regarding water supplies necessary for full compliance with CEQA, and no California Supreme Court decision had yet filled in that blank. The court therefore turned to several decisions out of the Courts of Appeal, all of which it found dealt adeptly with the sufficiency of an EIR's analysis of future water supplies.

In Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, the EIR was found wanting where a proposed mine project was projected to consume 12,000 to 15,000 gallons of water daily from the local water district while giving no information concerning the impacts on water service elsewhere if such amounts were supplied to the mine.

In Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, the EIR for a large residential community and resort noted that '[a] firm water supply has not yet been established beyond the first five years of development, although the applicant is pursuing several sources.' The EIR did list a number of possible sources of long-term water supply, but offered no analysis of the likelihood of obtaining such water or of the environmental impacts that would follow if they were obtained. Instead, the EIR left for future environmental review any analysis of new water acquisitions. The approving agency claimed this method was adequate to alleviate environmental concerns because future phases of development would not be approved if the water issues were not ironed out. The appellate court held this treatment of future water supplies defeated CEQA's fundamental informational purpose.

Two other cases the court discussed ' Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, and Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342 ' similarly held that reliance on hoped-for future entitlements to water were inadequate to support development plan approval.

From these four cases, the Supreme Court gleaned four general principles to serve as a guide for analyzing whether projections of future water supplies are sufficient to meet CEQA standards: 1) An EIR cannot ignore a problem or assume a solution to one because decision makers must have sufficient facts before them from which to evaluate the pros and cons of supplying the project's water; 2) Environmental impact analysis for a large project that will be occupied for many years cannot be limited to the water supply for the first stage or the first few years; 3) It must be likely that the identified future water supplies will become available; and 4) If there is uncertainty about the availability of the specified future water supplies, an analysis must be made of possible alternative sources and the environmental impacts of these.

Applying the Four Rules to Vineyard Area Citizens

The court found nothing wrong with the FEIR's analysis of the Sunrise Douglas plan's proposed use of 5000 ' 10,000 afa of groundwater from the Well Field for near-term needs. Although other users also were entitled to use that source, and the combined effects of these uses might deplete it, the EIR discussed this fact and addressed it. In addition, adequate evidence was presented that the Sunrise Douglas project would likely get the water it projected from the Well Field source. Said the Court, 'Uncertainty in the form of competition for identified water sources is an important point that should be discussed in an EIR's water supply analysis, and was here, but it does not necessarily render development of the planned water supply too unlikely.'

The arguments supporting the FEIR's findings regarding long-term surface water supplies were more problematic. There were inconsistencies within the report as to long-term supply and demand, and between the FEIR and an earlier-commissioned study on which many of the FEIR's assumptions were based. (That study was made for the Water Forum, a group of public and private stakeholders, including the County, the City of Sacramento, other water providers, business groups and environmental organizations that undertook long-term planning to meet increased demand for American River water through the year 2030.) The explanation given for these inconsistencies was that the new surface water supplies were to be used conjunctively with groundwater supplies. However, stated the court, '[T]his explanation is vague and unquantified. By itself, reliance on 'conjunctive use' is inadequate ' How much groundwater, existing and new, will be used with how much new surface water? In what combinations will these sources be used during wet and dry years, respectively?'

The assertion in the FEIR notes that full analysis of the planned conjunctive use program would have to await environmental review of the Water Agency's master plan update (which was pending at the time the FEIR was released) was inadequate to excuse the analytical omissions in the FEIR; if the Water Agency environmental impact analysis was important to understanding the long-term water supply for the Sunrise Douglas project, it should have been performed in the Sunrise Douglas project FEIR, or approval of the project could have awaited the Water Agency's analysis. The County could not simply avoid full discussion of the likely water sources for the Sunrise Douglas project by referring to an as-yet uncompleted Water Agency master plan. The court found that CEQA's informational purpose could not be satisfied by simply stating information would be made available in the future.

In sum, although the County's burden in preparing the FEIR for the project did not necessarily involve demonstrating with certainty that the County's future water supplies would be sufficient to meet the development's and the County's other water users' total demands, some meaningful discussion was necessary before the public and decision makers could be expected to have any confidence that the identified sources were actually likely to fully serve everyone's needs. This being the case, approval of the FEIR was in violation of CEQA.

The Impact

In a partially dissenting opinion, Justice Marvin Baxter said the majority decision placed an unrealistic requirement on developers to make long-term water resource plans not only for their own projects, but for all other nearby projects, thus increasing costs and discouraging development.

Sacramento-based Deputy Attorney General Gordon Burns, who argued part of the case as an amicus curiae in support of a group opposing the development, said the court's decision makes the rules clearer. 'As a practical matter,' he said, 'it means that water planning and land-use planning are going to have to be more closely coordinated.'

Janice G. Inman, Esq., is Editor-in-Chief of this newsletter.