Two water transfers from irrigation districts to the City of Tracy did not require a combined environmental impact report, the Third District Court of Appeal has ruled. The court found that the separate negative declarations adopted by the irrigation districts provided adequate review under the California Environmental Quality Act (CEQA).
The court rejected the Sierra Club's arguments that the entities involved had improperly segmented one project, that cumulative and growth-inducing impacts had not been adequate addressed, and that the effects of delivery cutbacks were ignored.
In writing for the court, Justice George Nicholson issued this warning: “The Sierra Club's failure to raise any facts to suggest cumulative or growth-inducing impacts exposes a possible intent to use CEQA simply to create delay. We caution CEQA plaintiffs 'that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement.' (Citizens of Goleta Valley v. Board of Supervisors, (1990) 52 Cal.3d 553, 576)”
In 1993, Tracy adopted a new general plan, under which the city's population could roughly quadruple to 130,000 people over 20 years. The general plan's environmental impact report calculated that the city would need 39,000 acre-feet of water per year to serve all of the growth permitted by the general plan. The city at the time had only 16,000 acre-feet of water - 10,000 acre-feet from the federal Central Valley Project (CVP), and 6,000 acre-feet of groundwater. The EIR said the city was exploring possible water transfers and directed the city to secure additional water sources.
In 2001, the city signed separate agreements with The West Side Irrigation District and the Banta-Carbona Irrigation District. The contract with West Side assigned 2,500 acre-feet of water rights from the Central Valley Project to the city, and gave the city an exclusive option to obtain another 2,500 acre-feet of West Side's CVP water. The agreement with Banta-Carbona assigned rights to 5,000 acre-feet of CVP water to the city. In September 2002, the districts adopted negative declarations for the transfer of annual water rights.
The Sierra Club sued the districts and the city for allegedly violating CEQA. San Joaquin County Superior Court Judge Bob McNatt ruled against the environmental group, a ruling that the Third District upheld on appeal.
The Sierra Club contended that the two water transfers amounted to one project under CEQA, and that the city - not the irrigation districts - should have prepared one EIR. The Sierra Club pointed out that the water transfers rely on nearly identical initial studies, both require city and Bureau of Reclamation approval, and both seek to convert 5,000 acre-feet of CVP water from agricultural to urban uses.
The appellate court was not convinced. It found that the assignments of water rights were separate and that the water districts could serve as lead agencies for the environmental reviews. The assignments were approved by different agencies, may be implemented independently, are not contingent on one another, involve separate water rights and different amounts, and were negotiated separately, the court noted. “Moreover,” Justice Nicholson wrote, “both initial studies acknowledge the other proposed assignment and analyze the cumulative impacts of both assignments.”
Regarding those cumulative impacts, the Sierra Club contended that the negative declarations were deficient. The documents reported that the water transfers would not have incremental effects because the transfers would have no impact on area hydrology or growth beyond what had already been studied in the general plan EIR. The Sierra Club listed development projects that should have been considered in the environmental review, but that list did not satisfy the court.
“Merely listing, as the Sierra Club does, other projects occurring in the area that may cause significant cumulative impacts is not evidence that the assignments will have impacts or that their impacts are cumulatively considerable,” Nicholson wrote.
As for growth-inducing impacts, the court noted that the new water would be provided only to areas covered by the general plan, and that the negative declarations incorporated the general plan EIR's discussion of growth-inducing impacts. That approach was sufficient, the court ruled.
As for cutbacks in CVP water deliveries during droughts, Nicholson wrote, “[T]he entire environmental analysis consists of analyzing the impacts that would occur under the very situation of which the Sierra Club complains.”
The Case:
Sierra Club v. The West Side Irrigation District, No. C044989, 05 C.D.O.S. 3390, 2005 DJDAR 4507. Filed March 22, 2005. Ordered published April 20, 2005.
The Lawyers:
For Sierra Club: Donald Mooney, (530) 758-2377.
For the irrigation districts: Jeanne Zolezzi, Herum, Crabtree, Brown, (209) 472-7700.
For the City of Tracy: Martha Lennihan, (916) 321-4460.
