The Fifth District Court of Appeal has upheld an environmental impact report's water analysis for the proposed University of California, Merced, campus.
In an unpublished opinion, the court rejected project opponents' attempt to liken the UC Merced water analysis to an EIR that was rejected in Stanislaus Natural Heritage Project v. County of Stanislaus, (1996) 48 Cal.App.4th 182. That case, commonly called by the proposed development's name, Diablo Grande, helped set the standard for what is required of a water study (see CP&DR Legal Digest, November 1999, August 1999, September 1996).
But in the UC Merced case, the court held that project opponents simply disagreed with the studies in the EIR, which was not enough to throw out the document.
"In the Stanislaus Natural Heritage Project case the EIR simply did not identify what the source of water would be," Presiding Justice James Ardaiz, who penned the earlier decision, wrote in the UC Merced case. "In the present case, however, the EIR identifies the source of water for the new campus as groundwater from the 30 million acre-feet of groundwater stored in the eastern Merced County groundwater basin."
"The EIR also states that ‘well development to serve the campus would not result in significant environmental impacts that would require mitigation,'" Ardaiz continued. "The EIR in the present case thus does identify the sources of water, and does address whether the supplying of water will have an adverse environmental impact. Appellants' disagreement with the EIR's conclusions does not render the EIR legally deficient."
In January 2002, the UC Board of Regents approved a long-range development plan and EIR for a new campus about two miles northeast of Merced. A handful of local environmental groups sued, claiming the EIR was inadequate for a number of reasons. Merced County Superior Court Judge William Ivey ruled for the university. The environmental groups appealed but only regarding the EIR's consideration of water.
The project opponents argued that the EIR ignored certain information, including a letter from the state Department of Food and Agriculture saying that the groundwater basin was getting pumped faster than it was being replenished and the campus could aggravate the situation. Opponents contended the EIR should have contained more analysis and reached different conclusions.
But the court ruled that additional study is not always necessary, and the fact that experts have formed different opinions based on the same information is not enough to render an EIR inadequate.
"So far as we can tell, appellants wish the EIR had reached a conclusion that there is an insufficient amount of water available to serve the new campus, or that providing water to the new campus would harm the water supply of the wells of nearby landowners. But the EIR did not reach that conclusion," Ardaiz wrote.
Stephen Kostka, the university's attorney, and the Building Industry Legal Defense Foundation requested publication of the opinion, but the court denied the request. Kostka said he knows of 12 published California Environmental Quality Act cases involving water supply analyses — and not once in those cases has the court upheld the analysis. The UC Merced case would have provided guidance on how to adequately study water issues, he said.
"I think courts are having difficulty with this issue," Kostka said.
Groundbreaking for UC Merced occurred in November 2002.
San Joaquin Raptor/Wildlife Rescue Center v. Regents of the University of California, No. F041622. Issued June 24, 2003.
For the rescue center: Patience Milrod, (559) 442-3111.
For UC: Stephen Kostka, Bingham McCutchen, (925) 975-5312.
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