Tiered EIR Thrown Out Because Higher Tier Invalid
A tiered environmental impact report has been thrown out because the program EIR on which the tired document was based had been invalidated. The Second District Court of Appeal ruling came in a case involving the Castaic Lake Water Agency's proposed purchase of water from Kern County to serve Newhall Ranch and other development in Los Angeles County's Santa Clarita Valley.
A few previous decisions have addressed tiering, but those cases were not as directly on point as the current one, said Susan Brandt-Hawley, who represented an environmental organization in the lawsuit. While some observers said the decision could discourage the use of tiering, Brandt-Hawley said the ruling would only discourage the "improper use of tiering."
"I think it's not a very common situation where a first tier is being litigated when a lower tier is being prepared," she said. A water agency attorney did not return CP&DR telephone calls.
Under the concept of tiering, an agency first prepares an EIR on a large program or series of projects. This document contains a general analysis of the major issues. A subsequent environmental document on implementing a part of the program or project analyzes the specific impacts of that part of the project, and incorporates the first EIR. The CEQA Guidelines encourage the use of tiering to streamline the review process, to defer analysis of issues not ready for discussion, and to prevent redundancy.
This case's background is lengthy and stems from the Monterey Agreement. In 1995, the Department of Water Resources (DWR) signed an agreement with the State Water Project contractors. The agreement ended the long-standing practice of placing farmers first in line for water delivery reductions during droughts. Under the Monterey Agreement, cutbacks during times when the State Water Project (SWP) could not meet requests would be based on water entitlements. The Monterey Agreement also allowed transfer of up to 130,000 acre-feet of State Water Project water from farmers to urban contractors on a willing-buyer, willing-seller basis.
The parties involved in the Monterey Agreement designated the Central Coast Water Authority (CCWA) as the lead agency under the California Environmental Quality Act, and CCWA prepared a program EIR on statewide impacts of implementing the agreement. The EIR said that the environmental impacts that could be quantified were negligible.
Environmentalists sued over the EIR and won two years ago in Planning & Conservation League v. Department of Water Resources, (2000) 83 Cal.App.4th 892. The court in PCL threw out the EIR because the state Department of Water Resources — not CCWA — should have been the lead agency, and because the EIR did not adequately address the "no project" alternative. The court ordered the state to prepare a new EIR.
In the meantime, Castaic Lake Water Agency was purchasing rights to 41,000 acre-feet of State Water Project water from Kern County Water Agency (KCWA) and one of its members, the Wheeler Ridge-Maricopa Water Storage District. In 1998, the Belridge Water Storage District, also a member of the Kern County Water Agency, certified an EIR that evaluated the effects of transferring 130,000 acre-feet of water entitlements away from the Kern agency and its member districts. The Belridge EIR concluded there would be no adverse effects because the Monterey Agreement increased the reliability of State Water Project deliveries to agriculture.
In 1999, Castaic released an EIR that said it was tiered from the district's 1988 EIR for capital projects, the Monterey Agreement EIR, and the Belridge EIR. (The precise role of the Belridge EIR became fuzzy during the litigation.) Castaic approved both the EIR and the water transfer project.
Environmentalists sued, claiming the EIR had a number of defects. They said Castaic should have analyzed not only the impacts of the water transfer, but also the effects of building transmission, filtration and storage facilities that would be needed. They further argued that EIR should not have dismissed the projected 10% of years when water would not be available for transfer to Castaic.
Los Angeles County Superior Court Judge David Yaffe ruled for Castaic, and environmentalists appealed. While the appeal was pending, the PCL decision came down, and the focus of the case shifted. Environmentalists argued that the court's invalidation of the Monterey Agreement EIR shattered Castaic's EIR. A unanimous three-judge panel of the Second District, Division Four, agreed.
Castaic presented numerous lines of defense. The agency argued that its EIR did not specifically incorporate analysis from the Monterey Agreement document, and that the Belridge EIR was incorporated only by reference. But the court was not persuaded.
"[The Castaic] EIR assumed the public and decision makers would want to know (1) that this project implements the Monterey Agreement, the environmental effects of which were analyzed in the Monterey Agreement EIR and found to be negligible, and (2) that the environmental effects in Kern County were studied in the Belridge EIR and found to be insignificant because of the increased reliability of water deliveries to agricultural contractors under the Monterey Agreement," Presiding Justice Charles Vogel wrote for the court. "The PCL decision undermined those premises by decertifying the Monterey Agreement EIR."
Castaic also argued that the Monterey Agreement EIR was not crucial because the agency could legally transfer the water even without the Monterey accord.
But the court called this argument a "straw man." "The issue in the case," Vogel wrote, "is not the legal authority of KCWA to sell and of respondent to buy SWP water entitlements, but rather the adequacy of the evaluation of the environmental effects of doing so." Besides, Vogel continued, "neither the Monterey Agreement EIR, nor the Belridge EIR nor respondent's EIR evaluated the environmental effects on the seller's irrigated lands of selling the entitlements under pre-Monterey Agreement conditions with agricultural contractors subject to the first and severest reductions in times of shortage."
The appellate court ruled against the environmentalists' other claims of CEQA defects, which disappointed Brandt-Hawley. The court said the Castaic agency could cure its PCL problem by issuing a new environmental document after the state completes a new EIR for the Monterey Agreement.
Friends of the Santa Clara River v. Castaic Lake Water Agency, No. B145283, 02 C.D.O.S. 1246, 2002 DJDAR 1477. Filed January 10, 2002. Ordered published February 6, 2002.
For Friends: Susan Brandt-Hawley, (707) 938-3908.
For Castaic: Robert H. Clark, general counsel, (661) 297-9132.