Leading CEQA Cases on Water Supply Issues Jim Moose Remy Moose Manley, LLP 2016 Municipal Law Institute Symposium: Ensuring Integrity in 21st Century California: Water & Public Works in Our Arid State McGeorge School of Law February 5, 2016 1 Cases for Review Vineyard Area Citizens for Responsible Growth v. Rancho Cordova (2007) 40 Cal.4th 412 SCOPE v. County of LA (2007) 157 Cal.App.4th 149 Watsonville Pilots Assoc. v. City of Watsonville (2010)183 Cal.App.4th 1059 Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316 Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260 Habitat and Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277 2 Vineyard Area Citizens for Responsible Growth v. Rancho Cordova (2007) Major California Supreme Court decision on EIR adequacy, first such decision in many years EIR for 6,000-acre, 22,000-unit community plan and nearer-term 9,900-unit specific plan inadequate because EIR failed to adequately evaluate long-term water sources needed for build-out 3 1
Vineyard (cont.) Analysis of water supply was inadequate because it: Failed to provide an adequate description of long-term water sources, as briefly mentioned in challenged EIR and as discussed at greater length in prior EIR for Water Forum process EIR for land use plans failed to formally incorporate by reference information from Water Forum EIR, and contained numerical information at odds with parallel sets of water demand and water supply numbers in Water Forum EIR EIR was also inadequate because lead agency failed to recirculate after identifying possible significant biological impacts on Cosumnes River due to groundwater pumping associated with short-term water supply 4 Vineyard (cont.) Mitigation measure providing for the curtailment of development should water sources not materialize or be delayed is an appropriate tool under CEQA, but is not a substitute for an adequate impact analysis Adequate analysis should contain the following elements: a) identification of the water sources needed for full build-out; b) assessment of the environmental impacts associated with providing water for the project; 5 Vineyard (cont.) c) where there are both short-term and long-term supplies needed, analysis of long-term supplies and their impacts in at least programmatic level of detail; d) assessment of the extent to which identified water sources are certain or likely to be available; e) where it is impossible to confidently determine that anticipated future water sources will be available, identification of possible alternative water sources and analysis of the environmental impacts of curtailing planned development due to inadequate supplies 6 2
Vineyard (cont.) Note: CEQA analysis of how certain or likely proposed water sources are naturally raises the question of whether climate change could adversely affect the extent or reliability of such sources AB 32 declares that The potential adverse impacts of global warming include... a reduction in the quality and supply of water to the state from the Sierra snowpack[.] Global warming will have detrimental effects on some of California s largest industries, including agriculture, wine, tourism, skiing, recreational and commercial fishing, and forestry. (Health & Saf. Code, 38501, subds. (a), (b).) 7 SCOPE (2007) EIR for development project upheld Water supply for project a 41,000 afy transfer between two water agencies was reasonably likely despite pending litigation over water transfer Litigation over the transfer had not resulted in invalidation of transfer, and water had been delivered for several years Substantial evidence supported lead agency s determination that the water transfer would remain in place and the supply would continue to be delivered 8 SCOPE (cont.) Reasonable likelihood determination under Vineyard is a factual question for lead agency to resolve Case does not stand for general proposition that litigation over a water supply is never a basis for finding the supply to be uncertain 9 3
SCOPE (cont.) Practical implications Lead agencies must deal head-on with uncertainties associated with a proposed water supply for a land use project Courts should defer to reasonable likelihood determinations if supported by substantial evidence and rigorous analysis 10 Watsonville Pilots Assoc. v. City of Watsonville (2010) Court sets aside EIR for Watsonville s 2030 General Plan The FEIR adequately analyzed water supply: The analysis complied with the Vineyard decision A General Plan EIR need not establish a likely source of water The EIR included a detailed discussion of conservation and offsets that would provide sufficient water for future development The EIR included evidence to support its conclusions Watsonville Pilots (cont.) The area suffers from severe groundwater overdraft: The EIR concluded that overdraft will be a longterm problem The EIR was not required to resolve the overdraft problem, a feat that was far beyond its scope. 4
Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) Court upholds water supply analysis for Sunny-Cal Specific Plan, which contemplated 560 residential units on 200 acres of ag land Cherry Valley overlies the Beaumont Groundwater Basin: Basin adjudication allocated project a 1,484 ac-ft/yr water right Cherry Valley (cont.) Baseline for analyzing water impact was 1,484 afy entitlement, not existing 50 afy use: Court held choice of baseline was a discretionary decision of how existing physical conditions without project could most realistically be measured City s decision was supported by substantial evidence: Adjudicated water right was close to prior egg farm water use at site Adjudicated water right was unaffected by closure of egg farm Groundwater entitlement is not a hypothetical allowable condition Cherry Valley (cont.) Water Supply Assessment (WSA) prepared for original, larger project proposal: Water district concluded that there is water sufficient for project Supplier described existing and future water sources in detail 5
Cherry Valley (cont.) Court rejects argument that alleged inconsistencies between WSA and water district s UWMP update were not addressed in the EIR: EIR satisfactorily showed a reasonable likelihood that water from an identified source would meet project demands over 20 years Project site has sufficient water right; water district has capacity to deliver that water Court not required to determine whether project demand will be met from sources other than the entitlement and water district EIR not required to show total water supply/demand within water district are in balance Project would cause no additional withdrawals from groundwater basin beyond existing overdraft conditions Preserve Wild Santee v. City of Santee Court strikes down EIR for Fanita Ranch project: 1,380 homes, village center, and 15 live/work units on 970 acres and 1,400 acres of open space Court upholds some aspects of EIR, but finds fault with water supply analysis Court finds water supply analysis to be defective Project was at subdivision map stage, and thus was subject to Senate Bill 221 requirements, including showing of firm assurances of future water supplies (see Gov. Code 66473.7) Project also required Water Supply Assessment (WSA) under Senate Bill 610 (see Wat. Code 10910 et seq.) But ultimate question was whether EIR adequately addresses the reasonably foreseeable impacts of supplying water to the project Vineyard Area Citizens case (2007) requires analysis of potential water supply alternatives where the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources 6
Project site was within Padre Dam Municipal Water District (PDWD) PWD gets its water from San Diego County Water Authority (SDCWA) SDCWA gets most of its water from Metropolitan Water District (MWD) MWD gets its water primarily from State Water Project (SWP) and Colorado River Aqueduct WSA estimated water demand at 881 acre feet per year (afy) EIR estimated water demand at 1,446 afy EIR failed to satisfy requirements of Vineyard Area Citizens case Water supply projections in addendum to WSA depend on supply projections in reliability plans of SDCWA and MWD MWD s projections and reliability plans depend heavily on reliability of SWP supplies MWD s Urban Water Management Plan (UWMP) stated that reliability goals could be met only if SWP yielded 1.5 Million Acre Feet (MAF) per year on average Increased yield in critically dry years to 650,000 afy Access to full contract amounts in wet years to replenish surface and groundwater storage August 2007 court decision involving SWP operations created at least shortterm uncertainty in MWD s SWP supplies WSA Addendum acknowledged that PDWD could not predict whether the court decision would lead to cutbacks and if so by how much EIR did not discuss uncertainties caused by court case or uncertainties relating to successful implementation of planned water development, water delivery, and water conservation projects 7
New EIR is therefore required to Evaluate the pros and cons of fulfilling the project s water needs Address the impacts of likely future water sources Provide a reasoned analysis of the circumstances affecting the likelihood of the water s availability (if City cannot confidently determine the availability of a reliable supply) Discuss possible replacement sources or alternatives to the use of anticipated water source and the environmental consequences of those contingencies EIR and WSA failed to address potential impacts of providing potable water to 10- acre lake portion of project Project included lake for treatment of stormwater Potable source was needed to fill lake Groundwater was available to recharge lake, but only if monitoring showed that water table drop of one meter did not damage riparian areas relying on water table Evidence showed difficulty of using groundwater for recharge without adversely affecting riparian areas Neither WSA nor EIR addressed potential effects of having to obtain recharge water from PDWD Habitat and Watershed Caretakers v. City of Santa Cruz Court finds only one problem with EIR for a proposed sphere of influence (SOI) amendment that, if approved by LAFCO, would allow City of Santa Cruz to provide water and sewer service to North Campus area of University of California Santa Cruz, consistent with 2005 UCSC Long Range Development Plan (LRDP) 8
BACKGROUND City sued UCSC over EIR for 2005 Long Range Development Plan (LRDP), resulting in comprehensive settlement agreement addressing off-site housing and traffic concerns LRDP contemplated the development of North Campus, an area outside the City s territorial boundaries and SOI Agreement contemplated that City and UCSC jointly request LAFCO to grant SOI amendment allowing City to provide extraterritorial water and sewer service to North Campus City was not required to file SOI application, but had to do so in order to trigger UCSC s commitment relating to provision of oncampus housing Consistent with agreement, City as lead agency prepared an EIR to support its application to LAFCO for the SOI amendment CITY S WATER SUPPLY SITUATION City has long suffered from a water supply deficit in dry years, requiring significant cutbacks Only viable long-term solution is proposed desalination plant, as described in 2006 Integrated Water Plan Without desalination plant, the situation will grow even more challenging in future years due to: possible cutbacks in the City s use of certain surface water sources due to impacts on listed fish species the threat of salt water intrusion from overuse of groundwater possible impacts from climate change EIR concluded that desalination plant was not reasonably likely water supply within meaning of Vineyard: Although plant was the most likely future water source, its future was uncertain until design, environmental review and regulatory approvals are completed Although 2006 EIR for City s Integrated Water Plan included program-level review for plant, project level review was still to be completed Proposed plant would be shared with Soquel Creek Water District Because service to expanded UCSC would exacerbate existing problem unless and until desalination plant came on line, EIR called water supply impact significant and unavoidable 9
Under Vineyard, an EIR is not required to establish a likely source of water, but may satisfy CEQA by addressing the reasonably foreseeable impacts of supplying water to project acknowledging the degree of uncertainty involved discussing reasonably foreseeable alternatives to preferred (though uncertain) supply disclosing significant foreseeable environmental effects of each alternative source, as well as mitigation measures to minimize significant effects City s EIR met these standards by discussing the impact of the project on the City s water supply acknowledging the City s inadequate supplies noting that the construction of a desalination facility was uncertain EIR acknowledged the harsh reality that, absent construction of desalination plant, the project would increase the ongoing imbalance between supply and demand require additional conservation by existing customers during droughts and in future normal years Court: EIR should have included a limited water alternative Draft EIR addressed two alternatives: No Project Modified SOI alternative excluding undeveloped land from SOI Draft EIR rejected possible alternatives that would Relocate proposed growth from North Campus to Main Campus Redirect new student enrollment to other UC campuses Final EIR added annexation alternative 10
City was not required to consider reduced-development alternative Under Cortese-Knox-Hertzberg Act, LAFCO cannot impose any conditions that would directly regulate land use density or intensity, property development, or subdivision requirements (Gov. Code, 56375(a)(6)) In contrast, LAFCO would not be precluded from approving a limited water alternative allowing some, but not all, proposed development in North Campus This would partially meet project objectives This would secure UCSC housing commitments under settlement agreement CKH would allow LAFCO to condition the provision of water service on water supply availability Options include conditioning development on supply ceiling by requiring City to decrease off-site demand before meeting new demand on campus 11