Court Rejects Water Analysis For 2,500-Unit Project
An environmental impact report for a proposed subdivision that would rely heavily on the State Water Project has been invalidated by the Second District Court of Appeal.
The EIR for the 2,500-unit West Creek project in Los Angeles County failed to say that deliveries by the State Water Project (SWP) are not reliable, and the study appeared to postpone a final decision on water until the subdivision approval process.
"The EIR relies heavily on SWP entitlements in calculating the total available water supply," Presiding Justice Arthur Gilbert wrote for the unanimous three-judge panel of the Second District, Division Six. "As the court in Planning & Conservation League [v. Department of Water Resources, (2000) 83 Cal.App.4th 892] points out, the entitlements are based on a state water system that has not been completed. There is a vast difference between entitlements and the amount of water that SWP can actually deliver."
The decision is the latest in a small but growing line of cases that emphasize the need to explain how a new development will get water.
"It's interesting that the court took such an aggressive stand on a project that is not a new town, that is just a large subdivision," said Randy Kanouse, a lobbyist for East Bay Municipal Utility District who helped write legislation in 1995 and 2001 to mandate better planning for the provision of water. In the second sentence of the decision, Kanouse said, the court made a "bolder statement than we ever put out in all of our advocacy."
That catchy statement has circulated rapidly among environmentalists and government officials. "The dream of water entitlements from the incomplete State Water Project is no substitute for the reality of actual water the SWP can deliver," the court opined.
The case involved a Newhall Land and Farming Company project in the unincorporated portion of the Santa Clarita Valley near the City of Santa Clarita and the site of the proposed 21,000-unit Newhall Ranch project. West Creek was proposed to have 2,545 housing units, 180,000 square feet of retail space and 46 acres of community facilities. The Newhall-owned Valencia Water Company would serve the project. Valencia gets its water from water wholesaler Castaic Lake Water Agency.
The draft EIR identified a water shortage of 32,800 acre-feet to 41,800 acre-feet per year when the Santa Clarita Valley is built out. But the EIR said Castaic was working to purchase an entitlement to an additional 41,000 acre-feet from the State Water Project — on top of an existing entitlement to 54,200 acre-feet from the state system. The Santa Clarita Organization for Planning the Environment (SCOPE) commented that there was no guarantee to SWP could deliver the water. A response in the final EIR said Castaic had completed the purchase of additional SWP water from the Kern County Water Agency. (The EIR for that water sale was later struck down in Friends of the Santa Clara River v. Castaic Lake Water Agency, (2002) 95 Cal.App.4th 1373; see CP&DR Legal Digest, March 2002.)
Even with the additional SWP water, the final EIR for West Creek identified the potential for a supply deficit but stated that every project "would be required to demonstrate water availability as part of the subdivision approval process. So long as each proposed development demonstrates water availability prior to project approval, cumulative development would not result in an unavoidable significant cumulative impact on the Santa Clarita Valley water resources."
A lawsuit followed adoption of the EIR; SCOPE lost the first round in Santa Barbara County Superior Court. On appeal, SCOPE argued that the EIR failed to state accurately the amount of water available because the EIR relied on SWP entitlements, rather than the state's ability to deliver the water. The court agreed with the project opponents.
"The draft EIR makes no attempt to calculate or even discuss the differences between entitlement and actual supply. The final EIR contains a response to SCOPE's concern about the reliability of SWP water, but the response is inadequate," Justice Gilbert wrote.
"Significantly, the response contains no estimates from the DWR [Department of Water Resources], the agency that manages the SWP, as to how much water it can deliver, whether in wet years, average years and in period of drought," Gilbert continued. Instead, the EIR "states a program undertaken by Castaic and other state programs justify considering 100% of SWP entitlements in long-term planning. But the response gives no details of such programs or an estimate of how much water they might make available if they ever get past the funding stage. A reasonable correlation between water to be produced by these projects and SWP entitlements is left to the imagination."
The comments from SCOPE deserved a more thorough response, the court ruled. "Instead of undertaking a serious and detailed analysis of SWP supplies, the EIR does little more than dismiss project opponents' concerns about water supply. Water is too important to receive such cursory treatment," Gilbert wrote.
"The final EIR's acknowledgement that there ‘could be a deficit of supply' does not cure the defect," the court continued. "Without some reasonably accurate estimate of SWP's ability to deliver water, it is impossible to judge how likely or how deep the deficit might be. Nor is the inadequacy cured by the requirement that Newhall demonstrate an adequate supply of water before the tract map is recorded. An EIR's purpose is to inform. This purpose is not satisfied by simply stating that information will be provided in the future."
In an unpublished portion of the opinion, the court ruled against SCOPE regarding which projects the EIR must include in the analysis of cumulative impacts. SCOPE argued that the county should include the Newhall Ranch project. But the court ruled that Newhall Ranch — a project that has been voted on by the county Planning Commission and Board of Supervisors — was properly excluded because "the record shows no completed application for a development proposal to build any residential units for the Newhall Ranch project."
Santa Clarita Organization for Planning the Environment v. County of Los Angeles, No. B155552, 03 C.D.O.S. 1767, 2003 DJDAR 2219. Filed February 27, 2003.
For SCOPE: Kate Neiswender, (805) 649-5575.
For the county: Peter Gutierrez, senior deputy county counsel, (213) 974-1857.
For Newhall Land and Farming Company: Robert McMurry, Nossaman, Guthner, Knox & Elliott, (213) 612-7800.