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Lay, Nonspecific Comments, Don't Support 'Fair Argument,' Court Rules

Monterey County did not have to prepare an environmental impact report for a 28-lot subdivision in an area suffering from a severe groundwater overdraft, the Sixth District Court of Appeal has ruled.

The court rejected the contention of the group LandWatch Monterey County that a fair argument could be made that the housing project may have a significant impact on water supply. The mitigated negative declaration the county prepared for the project "is supported by overwhelming, uncontradicted evidence that the project has an ample water supply, and with mitigation, its potentially adverse impacts to the groundwater supply will be rendered insignificant," the court ruled.

The housing development is planned in Prunedale, a hilly area between Salinas and Gilroy that relies on groundwater. As far back as 1952, studies have shown that houses and farms have pulled more water out of the ground than is recharged into aquifers. The county has limited development in the area.

Developer Donald Chapin Jr. submitted his application for a 28-lot, 143-acre subdivision in June 1999, about a year before the county imposed a development moratorium for the area. (The county exempted Chapin's project.) Chapin submitted hydrological test results and analyses that said a well that was part of an adjacent mutual water system could provide adequate water. In addition, the project was designed with detention ponds that would also serve as recharge basins.

A couple draft initial studies of the project generated a great deal of response. In early 2001, LandSet and Geoconsultants, Inc., prepared a "comprehensive groundwater assessment report" (CGA report). It concluded that an on-site well alone could meet the project's need for an estimated 10.2 acre-feet of water annually, and that the ponds may return more water than that back into the ground.

Not everyone was convinced. Jerry LeMoine, an environmental health specialist for the county Department of Health, sent an email to the planning department calling the groundwater report a "hoax." He said the project would need about 15 acre-feet of water, tests were conducted wrong, and the ponds were too shallow. He urged preparation of an EIR. A month later, he recanted and said the county's Water Resources Agency would provide future comments.

After more reports and another draft of the initial study, the project finally made it to the county Planning Commission in February 2004. LandWatch argued that an EIR was necessary and that the project conflicted with the county general plan. Doug Kasunich, a neighbor who owns a water well drilling and maintenance company, testified about the area's water problems, including wells going dry and nitrate intrusion. However, a county Department of Health representative (not LeMoine) testified that groundwater was available for the project. The Planning Commission approved the subdivision and a mitigated negative declaration.

LandWatch appealed, but the Board of Supervisors approved the project and the mitigated negative declaration. So LandWatch sued. The group argued that because the area has an undeniable water problem, the project obviously would have a significant adverse impact on water supply. The group also contended the project was in conflict with the general plan and the North County area plan. Monterey County Superior Court Judge Robert O'Farrell rejected all of the organizations contentions.

On appeal, LandWatch pointed to internal county memoranda about the area's water problems, LandWatch's own comments during the administrative process, Kasunich's testimony and LeMoine's email as evidence supporting a "fair argument" that the project may cause adverse environmental impacts the threshold for requiring an EIR. But the court ruled that LandWatch chose its evidence selectively, and the court discounted much of what LandWatch used for support.

"In our view, general evidence of a sub-area wide overdraft and the prior countywide moratorium have no tendency to discredit the specific technical analysis and conclusions reached by qualified experts in site-specific studies or the testimony that there is an adequate water supply for the project," Presiding Justice Conrad Rushing wrote for the unanimous three-judge panel. "Nor does that general evidence cited by LandWatch reflect an alternative analysis upon which one could reasonably conclude that the existing water supply is inadequate."

The court said that neither LeMoine nor Kasunich is a hydrologist or hydrogeologist, that LeMoine withdrew his statements, and that Kasunich, as an area resident, would naturally oppose the project.

"The lack of pertinent qualifications to evaluate hydrological and hydrogeological issues render LeMoine's and Kasunich's views, and the assumptions behind them, lay speculation on matters that require qualified technical expertise," Rushing wrote. "Consequently, LeMoine's emails and Kasunich's letter do not constitute substantial evidence supporting fair argument that the CGA report and the technical data from LandSet upon which it based is erroneous or that the proposed system of detention/recharge ponds might not mitigate the 10.2 acre-feet of additional demand generated by the project."

The court rejected the contention that, because it was based on studies supplied by the developer's consultants, the mitigated negative declaration was invalid.

As for planning consistency, LandWatch argued that the project violated county general plan policy 53.1.3, which states: "The county shall not allow water consuming development in areas which do not have adequate water supplies."

The court found that the project "has a proven and adequate water supply." Moreover, the court added, board of supervisors "could reasonably understand the general plan and its goals, policies and objectives as guides, rather than compulsory requirements, and treat Policy 53.1.3 as an advisory policy statement rather than a mandatory and absolute bar against approving new development that uses water, regardless of whether it would have adverse hydrological impacts."

The North County area plan contemplates development in the area, the court added.

The Case:
LandWatch Monterey County v. County of Monterey, No. H028659, 2007 DJDAR 2347. Filed January 23, 2007. Ordered published February 21, 2007.
The Lawyers:
For LandWatch: William Parkin, Wittwer & Parkin, (831) 429-4055.
For the county: Efren Iglesia, county counsel's office, (831) 755-5045.
For the developer: John Bridges, Fenton & Keller, (831) 373-1241.