A California Appellate Court Upholds the Adequacy of a Water Supply Analysis But Storm Clouds Are on the Horizon

A California Appellate Court in Santa Clarita Organization for Planning the Environment v. County of Los Angeles, 2007 DJDAR 17387 (SCOPE II) finally held on November 26, that an EIR adequately addressed water supply.

In a prior appellate court decision relating to this same project, Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal. App. 4th 715 (Scope I), the Court held that the EIR for the project was inadequate because it relied on "paper" entitlements to water rather than on what could likely be delivered.  After remand, the County revised and recertified the EIR and the same organization again challenged the water supply portion of the EIR.  The trial court denied SCOPE’s petition and the court of appeal affirmed the judgment.  In upholding the decision, the appellate court referenced the recent California Supreme Court decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard) and the four principles articulated by that court for analysis of future water supplies under CEQA.  The Vineyard decision followed a long line of cases beginning in 1981 in which California appellate courts consistently struck down EIRs based on an inadequate water supply analysis.

Likelihood of water availability is enough

Of the four principles described in Vineyard, SCOPE's concerns primarily centered on the third principle that “the future water supplies identified and analyzed must bear a likelihood of actually proving available.”  Despite some uncertainty regarding the source of water that the project will rely on, the Court held that the EIR satisfied the third principle of analysis in Vineyard in that the record contains substantial evidence demonstrating a reasonable likelihood that water from the Kern-Castaic transfer will be available for the project’s near and long term needs.

Uncertainty of supply is not a fatal flaw

SCOPE also argued that because there is some uncertainty regarding the water transfer, which will be the primary source of water for the project, the EIR was deficient because it failed to analyze water supply in the absence of this transfer.  The Court noted that when first published, Vineyard’s fourth principle was slightly different from the one stated in the subsequent modified opinion.  Principle four initially stated that an EIR requires analysis of replacement or alternative water sources where “a full discussion leaves some uncertainty regarding actual availability of anticipated future water sources.”  Principle four in the modified version of Vineyard allows slightly more flexibility in determining the issue of available future water sources.  It requires analysis of replacement or alternative sources only if it is “impossible to confidently determine” that anticipated future water sources will be available.  In this case, the Court held that although there is some legal uncertainty about the water transfer, which is disclosed in the EIR, this uncertainty does not mean that it is impossible to confidently determine that this water source will be available.

Storm clouds on the horizon

Although we finally have a California Appellate Court decision upholding the adequacy of a water supply analysis in an EIR, there are still significant questions, challenges, and vulnerabilities to water supply analysis in future EIRs.

1. The SCOPE II decision may not be an accurate barometer of how future water supply analysis will be reviewed.  This is one that had already run through the gauntlet by being initially rejected by the appellate court in 2003 and then, after a couple years of detailed supplementation of that analysis, went through the trial court and appellate court again.
   
2. Potential climate change impacts on water supply will play an increasingly important role as courts apply the Vineyard principles to future water supply analyses and EIRs.
3. The recent NRDC v. Kempthorne (Delta Smelt) decision creates considerable uncertainty regarding the availability of anticipated future water sources.  In that decision, a federal district court placed a number of restrictions on the operations of pumps that supply water from the Bay Delta to the San Joaquin valley and southern California in order to protect the threatened Delta smelt.
4. A recent trial court decision in Santa Clarita Oak Conservancy, et al. v. City of Santa Clarita, et al., LASC Case No. BS084677 (August 15, 2007) is the first case in which a petitioner has raised climate change as a factor that must be analyzed and considered as part of the preparation of an adequate water supply analysis under CEQA.  The court concluded that the impact of climate change on water supplies was too speculative to conduct further meaningful quantitative review.  The case is now on appeal.