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A. Early 1980s - Need to Include the Issues in the EIR
Water
supply issues were first addressed in the early 1980s. In
Santiago County Water Dist. v. County of Orange,
118 Cal. App. 3d 818 (1981), the County approved a sand
and gravel mining operation. The EIR did not address the
details of providing water. Instead, the County imposed
a condition that "[p]rior to commencement of mining operations
or the issuance of a sand and gravel extraction permit,
the operator shall establish an adequate water supply and
appurtenant system to supply the water needs of the mining
operation, processing plant and reclamation irrigation."
The
Court of Appeal was unimpressed. It noted:
[The
EIR], instead of specifying the equipment that will be
needed, merely states that "[t]he developer will furnish
the District with detailed plans of works." This is not
nearly enough. The construction of additional water delivery
facilities is undoubtedly one of the significant environmental
effects of the project. As such, a description of the
necessary construction had to be included if the EIR was
to serve its informational purpose.
B.
1996 - Specific Water Supply Need Not Be Identified for
an EIR
Water
supply issues then lay dormant for more than a decade, and
were not resurrected until Stanislaus Natural Heritage
Project v. County of Stanislaus, 48 Cal. App. 4th
182 (1996). Stanislaus involved a 5,000-unit destination
resort and residential community. The EIR for the project
acknowledged that the project would take 25 years to build
out, but that water had not been assured beyond the first
5 years. The County found the water supply impacts mitigated
by a measure providing that "development requiring over
1,200 acre-feet per year of water shall not be permitted
unless the applicant can show to the County's satisfaction
that adequate water supplies have been made available, and
that environmental impacts of those sources have been studied
and mitigated per CEQA requirements."
The
Stanislaus court found this approach unacceptable.
It held that water supply issues could not be severed from
the remainder of the project and addressed at a later date
in a tiered EIR. "To defer any analysis whatsoever of the
impacts of supplying water to this project until after the
adoption of the specific plan calling for the project to
be built would appear to be putting the cart before the
horse." The court described the environmental analysis that
should have occurred as follows:
We
are not concluding respondent must first find a source
of water for the "project" before an EIR will be adequate.
. . . . [T]he decision to approve the EIR of this project
does require recognition that water must be supplied,
that it will come from a specific source or one of several
possible sources, of what the impact will be if supplied
from a particular source or possible sources and if that
impact is adverse how it will be addressed. While it might
be argued that not building a portion of the project is
the ultimate mitigation, it must be borne in mind that
the EIR must address the project and assumes the project
will be built.
C.
Year 1999 - EIR Predicated on a Draft General Plan Is Flawed
and Can't Pass CEQA Muster
Despite
Stanislaus' acknowledgment that a specific water
supply need not be identified for an EIR to be adequate,
many practitioners hoped they had found a safe harbor in
doing more than Stanislaus required, and certainly all that
Santiago required, by identifying a specific water source
for every project. Those hopes were dashed a few years later
in County of Amador v. El Dorado County Water Agency,
76 Cal. App. 4th 931 (1999), where the court overturned
a CEQA determination precisely because the agency had identified
a water source before development was approved in a new
general plan.
At
issue in Amador was a proposal to acquire a hydroelectric
facility and use the water not only to generate electricity,
but also for consumptive uses. The court overturned the
project approval for failure to evaluate the growth-inducing
impacts of providing 17,000 acre feet more water for consumptive
uses each year. However, the language of the decision is
not limited to criticism of the agency's failure to evaluate
growth-inducing impacts. Instead, the court evaluated the
merits of local "water policy," and evaluated whether the
local health safety and welfare would be better served by
determining how much water was available and then approving
the amount of development that could be served by that water,
or instead deciding how much development was desirable and
then finding sufficient water to serve that development:
[T]he
primary purpose of the water program is to provide water
supplies to meet projected increased populations. These
projections were contained in a draft general plan. In
other words, water policy was predicated on the population
forecasts of an unadopted general plan, and water projects
were tailored to the needs outlined in that still-to-be
finalized document. In this case, approving a water program
before enacting a general plan places the proverbial cart
before the horse.
The
court held "only that, in this case, an EIR predicated on
a draft general plan is fundamentally flawed and cannot
pass CEQA muster."
CEQA
practitioners attempted to reconcile Stanislaus and Amador
by proposing that an EIR identify at least one concrete
water source that could become available to a project, but
ensuring that there was no approval of the water source
until after the development project had been approved. They
hoped that the teaching of Amador was only that an environmental
consultant should not guess about other agencies' future
development plans, even when there is a published draft
plan available.
D.
Year 2000 - Need to Discuss and Analyze "No Project
Alternatives"
Those
hopes, however, were also dashed. In Planning & Conservation
League v. Department of Water Resources, 83 Cal.
App. 4th 892 (2000), the court criticized a water agency
for not attempting to predict the future planning actions
of other agencies.
At issue
in the PCL case were the Monterey Amendments to contracts
governing the supply of State Water Project water. Among
other things, the Monterey Amendments eliminated so-called
"paper water." Paper water is water that can be made available
according to the terms of existing water supply contracts
but which, as a practical mater, was unlikely ever to exist.
The EIR analyzed a no project alternative which concluded
that the elimination of paper water would have no real consequences
because the paper water had never been realistically available
before.
The
court did not employ the CEQA standard of review under which
a court determines whether an EIR's conclusion is supported
by substantial evidence. The PCL court instead determined
in the first instance that there would be consequences to
eliminating paper water in terms of how planning agencies
throughout the state rely upon the possibility of water
that exists only on paper:
What
then are the environmental consequences of removing [paper
water], if contractors continue to receive the same amount
of water whether or not the provision is invoked? The
answer is that entitlements under table A-"paper water,"
so called because it exists only on paper-serve as the
basis for land planning decisions. Projects that are given
the clearance to proceed based upon an entitlement to
X acre-feet of water might not proceed if a contractor's
entitlement is reduced to (X minus Y) acre-feet.
The
PCL court never did explain how a water agency could do
anything but speculate about what development planning agencies
might approve with and without paper water decades into
the future, or how a water agency could make such a projection
without running afoul of Amador. Nonetheless, practitioners
looking for a safe harbor hoped that all the PCL court really
wanted was an extremely robust discussion and analysis of
the no project alternative, so that the consequences of
denying the project could be compared with the consequences
of approving the project in greater detail.
E.
Year 2001 - EIR Must Provide Information and Analysis of
Environmental Impacts, and Not Limit Itself to The Physical
Impacts on The Environment
N nor Ignore The Legal Right to Take Water.
These
hopes were tempered by the next CEQA water decisions, Save
Our Peninsula Committee v. Monterey County Board of Superivsors,
87 Cal. App. 4th 99 (2001). In Save Our Peninsula,
the County Board of Supervisors was presented with extensive
and frequently updated information about past and projected
future water supply issues. The court nonetheless overturned
the Board's CEQA determinations because of how the Board
handled that information.
The
EIR in Save Our Peninsula established there would
be little, if any, physical environmental consequences from
withdrawing up to 53 acre feet per year from the Carmel
River aquifer, but acknowledged that local politics and
circumstances - including water shortages faced by customers
of a water supplier that had been taking more than 10,000
acre feet per year without legal right - raised the question
whether any increase in water extractions should be considered
significant. The EIR supplied the Board with substantial
information regarding past water use and future water demand,
and left to the Board to determine what amount of past water
use should be used as the baseline against which to measure
whether water demand of the project should be considered
significant. The court rejected this approach. "By inviting
the Board to pick from an array of numbers to determine
an important aspect of the baseline environmental setting,
the EIR failed to fulfill its function of providing information
and analysis of environmental impacts."
The
Save Our Peninsula court also criticized the EIR
for limiting itself to the physical impacts on the environment,
and for not including an analysis of the legal right to
take water. The court indicated that the Board should have
adopted a measure that had been suggested in the EIR, requiring
the applicants either to provide assurance of a valid riparian
claim or to secure an appropriative permit from the State
Water Resources Control Board. The court did not explain
how obtaining a judicial or administrative decree confirming
water rights would mitigate any impacts on the environment.
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