Docket No. S132972
Vineyard Citizens v. Rancho Cordova
Filed 2/1/07
IN THE SUPREME COURT OF CALIFORNIA
VINEYARD AREA CITIZENS FOR
RESPONSIBLE GROWTH, INC., et al.,
Plaintiffs
and
Appellants,
S132972
v.
) Ct.App.
3
C044653
CITY OF RANCHO CORDOVA,
Sacramento
County
Defendant and Respondent; )
Super. Ct. No. 02CS01214
SUNRISE DOUGLAS PROPERTY )
OWNERS ASSN. et al.,
Real Parties in Interest and
Respondents.
The County of Sacramento (County) approved a community plan for a
large, mixed-use development project proposed by real parties in interest in this
mandate action (real parties), as well as a specific plan for the first portion of that
development. A group of objectors to the development (plaintiffs) brought a
petition for writ of mandate to overturn, on a variety of grounds, the County’s
approval. The superior court denied the petition, and the Court of Appeal
affirmed.
We granted review to consider plaintiffs’ claims, arising under the
California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et
seq.), that (1) the environmental impact report (EIR) prepared for the community
1
and specific plans failed to adequately identify and evaluate future water sources
for the development, and (2) potential impacts on migratory salmon in the
Cosumnes River, disclosed in the Final EIR, should instead have been
incorporated in a revised Draft EIR and recirculated for public comment.
We conclude that while the EIR adequately informed decision makers and
the public of the County’s plan for near-term provision of water to the
development, it failed to do so as to the long-term provision and hence failed to
disclose the impacts of providing the necessary supplies in the long term. While
the EIR identifies the intended water sources in general terms, it does not clearly
and coherently explain, using material properly stated or incorporated in the EIR,
how the long-term demand is likely to be met with those sources, the
environmental impacts of exploiting those sources, and how those impacts are to
be mitigated. On the second issue, we agree with plaintiffs that the Draft EIR
must be revised and recirculated for public comment on the newly disclosed
potential impact on Cosumnes River fish migration.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are drawn from the record before the County’s Board of
Supervisors (Board) when that body took the challenged actions. (See Western
States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 568-574.)
Real parties, a land development group led by AKT Development
Corporation, propose to develop more than 6,000 rural acres in the eastern part of
the County (now within the jurisdiction of the recently incorporated City of
Rancho Cordova (Rancho Cordova), which has assumed the County’s place in this
litigation) into a “master planned community” known as Sunrise Douglas (after
Sunrise Boulevard and Douglas Road, two major roads forming part of its
borders). Fully built, the project would include more than 22,000 residential units,
2
housing as many as 60,000 people, together with schools and parks, as well as
office and commercial uses occupying about 480 acres of land.
County planning staff prepared two plans for initial regulatory approval:
the Sunrise Douglas Community Plan (Community Plan), which sets out the
“policy framework and conceptual development plan” for the entire project, and
the SunRidge Specific Plan (Specific Plan), which details the proposed
development of a substantial portion of the project―2,600 acres of land to contain
9,886 residential units, as well as community commercial areas, shopping centers,
neighborhood schools and parks. County staff also prepared a single EIR
assessing the likely environmental consequences of implementing both plans, to
be used by the Board in deciding whether to approve the plans.
On July 17, 2002, the Board passed resolutions and ordinances that
amended the County general plan and zoning ordinances to approve the project.
The Board also certified the Final EIR (FEIR) and made findings as to significant
unmitigated environmental effects and overriding benefits. (See Pub. Resources
Code, § 21081; Guidelines for the Implementation of Cal. Environmental Quality
Act (CEQA Guidelines) (Cal. Code Regs., tit. 14, §§ 15090, 15091.)
The EIR for the Community Plan and Specific Plan addressed myriad
potential environmental impacts associated with the development, as well as
mitigation measures and alternatives to the development. Many of these formed
the basis for critical public comment on the Draft EIR1 and disputes at earlier
1
We refer to the “Revised Recirculated Draft Environmental Impact Report”
for the Community Plan and Specific Plan, publicly circulated on May 18, 2001,
as the Draft EIR. A different draft EIR, addressing inter alia a different water
supply plan, circulated in 1999 but was superseded by the 2001 Draft EIR and is
not at issue in this case. The FEIR was publicly circulated on November 16, 2001.
3
stages of the litigation, but this court’s review of the EIR’s adequacy is focused
solely on issues of water supply and the impact of groundwater withdrawals on
Cosumnes River fish migration. Our factual summary therefore also addresses
only these two points.
Water Supply: Sources, Impacts and Mitigation Measures
According to the FEIR, the average water demand in the Specific Plan area,
on full build out, is estimated to be 8,539 acre-feet annually (afa); demand in the
remainder of the Community Plan area is estimated at 13,564 afa, giving a total
project demand, when fully built and occupied, of about 22,103 afa. The plan for
supplying this water relies on both groundwater and surface water supplies.
Initially, groundwater in an amount eventually reaching about 5,527 afa would be
provided from a newly developed source, the North Vineyard Well Field (Well
Field), to be built southwest of the development. The Well Field is thought to
have a safe yield of about 10,000 afa, but that full amount would not necessarily
be available to Sunrise Douglas. The project’s additional needs, beyond those
supplied from the Well Field, would later be met with surface water diverted from
the American River. Both the ground and surface water supplies would be
delivered by the Sacramento County Water Agency (the Water Agency).
The Water Agency, according to the FEIR, will provide the surface water
supplies as part of its system for a larger area of the County known as Zone 40,
which, as expanded in 1999, includes the Sunrise Douglas project area. This water
will be employed in “conjunctive use” with the Well Field groundwater,
employing more surface water in wet years (allowing the groundwater resources to
be recharged) and more groundwater in dry years when surface supplies are
restricted. The Water Agency has an existing contract with the federal Bureau of
Reclamation for 15,000 afa of American River water for use in Zone 40 (an
4
allocation referred to in the FEIR and by the parties as Fazio water) and is
negotiating or exploring other surface water diversion rights.
The FEIR relied to a significant extent on prior water supply planning
completed under the aegis of the Water Forum, a group of public and private
“stakeholders”―including the County, the City of Sacramento, other water
providers, business groups and environmental organizations (among them the
Environmental Council of Sacramento, a plaintiff here), that undertook long-term
planning to meet increased demand for American River water through the year
2030. The Water Forum’s product, the Water Forum Proposal, which became the
Water Forum Agreement on execution by the participants, includes plans for
increased surface water diversions by several water purveyors, including new
diversions by the County and the Water Agency by the year 2030 totaling as much
as 78,000 afa; used conjunctively with groundwater, this surface water is intended
to meet the County’s need for new water supplies in the Zone 40 area.
The final EIR for the Water Forum Proposal extensively analyzed the
environmental impacts of the participants’ planned increases in surface water
diversion, as well as the cumulative impacts of the proposal and other foreseeable
changes in area water supply and demand. It found that in spite of measures
included in the proposal for water conservation, conjunctive use and fisheries
protection, increased use of American River water under the plan is likely to cause
“significant and potentially significant impacts within the Lower American River
and Folsom Reservoir, including effects to certain fisheries, recreational
opportunities, and cultural resources.” In addition, “impacts to water supply,
water quality and power supply” are likely to occur outside the American River
system.
The impacts of groundwater withdrawals at the Well Field, the other source
of water for the development, are discussed in the FEIR for the Community and
5
Specific Plans. The FEIR analyzes a set of seven groundwater withdrawal
scenarios to satisfy Specific Plan area and other regional needs, ranging between
2,265 afa and 32,821 afa. According to the FEIR’s modeling analysis,
groundwater elevations in the shallow aquifer near the Well Field would decline
by 10-15 feet―deemed a potentially significant amount because it could affect
adjacent landowners’ domestic wells―under the scenarios involving the project’s
use of around 10,000 afa of groundwater from the Well Field.2 This potential
impact would be mitigated by conjunctive use of surface water supplies to
recharge the aquifer and, if necessary, by deepening domestic wells or connecting
their users to the municipal supply.
Because the Sunrise Douglas development does not have legal rights to the
projected Well Field and surface water resources, and transmission and treatment
facilities have not yet been built, the FEIR contemplates that legal entitlements for
development must await final agreements and facilities financing. The FEIR’s
mitigation measure WS-1 specifies that entitlements (“subdivision maps, parcel
maps, use permits, building permits, etc.”) in Sunrise Douglas shall not be granted
“unless agreements and financing for supplemental water supplies are in place.”
2
Both a shallow aquifer and a deeper one underlie the Well Field area. The
Well Field would draw from the deeper aquifer, resulting in local depression of
that aquifer’s level, but the FEIR considers this less potentially significant than the
effect on the shallow aquifer because the municipal wells drawing from the deeper
aquifer, unlike the domestic wells in the shallow aquifer, are already sufficiently
deep to be unaffected by lowered levels.
The FEIR also analyzed possible effects of Well Field extraction on known
plumes of groundwater contaminants in the area. No significant impact was
projected under the relevant scenarios.
6
Cosumnes River: Impact on Salmon Migration
The Cosumnes River lies south of the Well Field. The only remaining
undammed river draining the Sierra Nevada’s western slope, the Cosumnes
supports steelhead trout and fall-run chinook salmon populations. The Draft EIR
did not discuss the impact groundwater extraction at the Well Field would have on
the river’s flows and habitats. In public comments on the Draft EIR, however,
several agencies, organizations and individuals expressed concern on the subject.
The United States Fish and Wildlife Service noted that past groundwater
withdrawals had significantly lowered groundwater levels in the area, which
causes loss of flow in the Cosumnes River due to seepage through the riverbed and
thus limits access of adult fall-run chinook to their spawning grounds. “Any
further withdrawals will almost certainly exacerbate this situation.” The Fish and
Wildlife Service comment urged an analysis of the potential effect of groundwater
withdrawals on flow conditions in the river’s spawning reach (between LaTrobe
and Dillard Roads) and migratory reach (from the tidal zone to LaTrobe Road)
during the fall and winter months.
The National Marine Fisheries Service observed that the Cosumnes River is
designated critical habitat for the Central Valley steelhead trout, a “federally
listed” species, as well as habitat for a “candidate species,” fall/late fall-run
chinook salmon. Further groundwater withdrawals in the area could reduce
surface flow, “significantly impacting recovery of listed and sensitive salmonid
species.”
The Nature Conservancy, which manages the Cosumnes River Preserve (an
area of 30,000 acres in which several state and federal agencies hold land
interests), similarly observed that due to the lowering of the groundwater table the
Cosumnes River now loses surface flow to groundwater, and, as a consequence,
“the river ceases flowing earlier in the year, stays dry longer into the Fall, and
7
dries over an increasingly long reach, compared to historic conditions.” Because
water from fall rains must saturate an increasingly dry riverbed, significantly more
fall water is now required for surface flows to reach the Delta and permit salmon
migration; riparian habitats and seasonal wetlands are also adversely affected.
“Any increment of further lowering of groundwater will, in our view, have a
significantly negative effect on these habitat and public trust values.”
Graham Fogg, a professor of hydrogeology at the University of California,
Davis, who has studied the effects of groundwater extraction on the Cosumnes
River, also warned that increased extraction could reduce stream flows,
jeopardizing salmon migration. In particular, Fogg explained that while some
reaches of the Cosumnes River are hydrologically disconnected from the aquifer
in the region, modeling and field observations show a potential for connection
“upstream of Dillard Road and downstream of Highway 99.”
In response to these public comments, the FEIR states that “available data
suggest groundwater extraction at the proposed [W]ell [F]ield will not
significantly impact flows in either Deer Creek [a tributary of the Cosumnes] or
the Cosumnes River.” The estimated impact on groundwater levels in the
Cosumnes River area is less than five feet. Moreover, the deep aquifer from
which the Well Field would draw is hydrologically disconnected from the
Cosumnes River over most of its reach in the County. In the unconnected reaches,
seepage from the river occurs whatever the regional groundwater elevation; further
extraction would therefore have no effect on river flows. Hydrological
connections exist “upstream of Dillard Road and downstream of Twin Cities
Road” (“about 7 miles downstream of Highway 99”), but groundwater elevation
changes in those reaches is expected to be no more than two feet and typically less
than one foot. The FEIR concludes: “The resulting impact on depletions from
Deer Creek and the Cosumnes River is not considered significant.
8
Correspondingly, these depletions are expected to result in small but uncertain
impacts on flows in Deer Creek and the Cosumnes River. The potential exception
could be during periods of very low flow. During such periods of low flow, these
depletions could change the timing and areal extent of the dewatering of the
stream invert, potentially impacting aquatic and riparian-dependent species and
habitat.”
The FEIR response also observed that the proposed extraction of 10,000 afa
from the Well Field represented less than a 3 percent increase in the annual
groundwater extraction underlying and adjacent to the Cosumnes River, and that
agricultural wells located very close to the river and drawing from the region’s
shallower aquifer “exert a much greater influence on local groundwater elevations
and gradients than the proposed [W]ell [F]ield.”
Lower Court Review
The superior court denied plaintiffs’ petition for writ of mandate, which
challenged the County’s CEQA findings and approval of the project. The Court of
Appeal affirmed, holding, inter alia, that the FEIR’s water supply discussion
satisfied CEQA because it did not rely on speculative or illusory sources, and that
substantial evidence supported the County’s finding the impact of groundwater
extraction on flow levels in the Cosumnes River would be insignificant. We
granted plaintiffs’ petition for review.
DISCUSSION
In reviewing an agency’s compliance with CEQA in the course of its
legislative or quasi-legislative actions, the courts’ inquiry “shall extend only to
whether there was a prejudicial abuse of discretion.” (Pub. Resources Code,
9
§ 21168.5.)3 Such an abuse is established “if the agency has not proceeded in a
manner required by law or if the determination or decision is not supported by
substantial evidence.” (Ibid.; see Western States Petroleum Assn. v. Superior
Court, supra, 9 Cal.4th at p. 568; Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 392-393 (Laurel Heights I).)4
An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as
the trial court’s: the appellate court reviews the agency’s action, not the trial
court’s decision; in that sense appellate judicial review under CEQA is de novo.
(County of Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at
p. 946; Friends of the Old Trees v. Dept. of Forestry & Fire Protection (1997) 52
Cal.App.4th 1383, 1393; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th
1307, 1321; City of Carmel-by-the-Sea v. Bd. of Supervisors (1986) 183
Cal.App.3d 229, 239.) We therefore resolve the substantive CEQA issues on
which we granted review by independently determining whether the
3
All further unspecified statutory references are to the Public Resources
Code.
4
Although the resolutions and ordinances by which the Board approved the
Community and Specific Plans appear to have been legislative rather than
quasi-judicial acts, the writ petition was styled as for administrative mandamus
(Code Civ. Proc., § 1094.5) as well as traditional mandamus (id., § 1085). The
parties have not briefed the question of which remedial scheme applies, but, as we
have noted before (Laurel Heights I, supra, 47 Cal.3d at p. 397, fn. 5), the
substantial evidence standard applies to review of the Board’s factual
determinations under either analysis. (See Pub. Resources Code, §§ 21168,
21168.5; see also County of Amador v. El Dorado County Water Agency (1999) 76
Cal.App.4th 931, 945 [distinction between these provisions is “ ‘rarely
significant’ ”].)
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administrative record demonstrates any legal error by the County and whether it
contains substantial evidence to support the County’s factual determinations.
I. Adequacy of the FEIR’s Water Supply Analysis
Plaintiffs contend the FEIR is deficient in that it “fails to identify the actual
source of most of the water needed to fill the project’s long-term demand,” an
analytical gap that “serves to obscure the undisclosed environmental impacts of
the project.” The County’s assurance, through the FEIR’s mitigation measure
WS-1, that development entitlements will not be granted until agreements and
financing for water supplies are in place does not remedy the deficiency, plaintiffs
argue. Rather, the promise of future environmental analysis merely sidesteps the
County’s obligation to disclose and consider the impacts of supplying water to the
entire planned Sunrise Douglas project at the outset, before approving that project.
Moreover, plaintiffs maintain, insofar as the FEIR relies on mitigation measures
proposed in the Water Forum Proposal, those are legally inadequate to support
approval of the Sunrise Douglas project because they have not been embodied in a
legally enforceable agreement.
Relying in part on the FEIR’s use of information drawn from the Water
Forum Proposal’s final EIR, the Court of Appeal held the FEIR’s treatment of
water sources and impacts satisfied CEQA’s requirements. The identified sources
“were not speculative, although they were not completed.” Unlike the reliance on
“illusory supplies” condemned in earlier appellate decisions, the Court of Appeal
concluded, here the FEIR identified and assessed the impacts of using “future
water supplies.” Real parties and Rancho Cordova, similarly, contend the FEIR
adequately identified and addressed future water supplies. CEQA, Rancho
Cordova argues, requires only that the County “use its best efforts to disclose all
that [it] reasonably could, not to actually secure a water source and work out all
11
the uncertainties and competing demands before an environmental review would
be adequate.”
A. Principles Governing CEQA Analysis of Water Supply
The fundamental purpose of an EIR is “to provide public agencies and the
public in general with detailed information about the effect which a proposed
project is likely to have on the environment.” (§ 21061.) To that end, the EIR
“shall include a detailed statement setting forth . . . [a]ll significant effects on the
environment of the proposed project.” (§ 21100, subd. (b)(1).) It is common
ground for the parties and the lower court that the EIR in this case was required to
analyze the effects of providing water to this large housing and commercial
development, and that in order to do so the EIR had, in some manner, to identify
the planned sources of that water. The principal disputed issue is how firmly
future water supplies for a proposed project must be identified or, to put the
question in reverse, what level of uncertainty regarding the availability of water
supplies can be tolerated in an EIR for a land use plan.
Neither CEQA itself, nor the CEQA Guidelines,5 nor any of this court’s
decisions address this question specifically. On a general level, section 15144 of
the CEQA Guidelines (Cal. Code Regs., tit. 14), addressing the need to forecast
future events in an EIR, states that “[w]hile foreseeing the unforeseeable is not
possible, an agency must use its best efforts to find out and disclose all that it
5
The CEQA Guidelines, promulgated by the state’s Resources Agency, are
authorized by Public Resources Code section 21083. In interpreting CEQA, we
accord the Guidelines great weight except where they are clearly unauthorized or
erroneous. (Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1123, fn. 4 (Laurel Heights II); Bakersfield
Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184,
1197.)
12
reasonably can.” We endorsed this view in Laurel Heights I, supra, 47 Cal.3d at
pages 398-399, explaining that an EIR must address the impacts of “reasonably
foreseeable” future activities related to the proposed project. The Courts of
Appeal, however, have in several decisions specifically addressed the sufficiency
of an EIR’s analysis of future water supplies.
In Santiago County Water Dist. v. County of Orange (1981) 118
Cal.App.3d 818, the EIR for a proposed mining project stated that the mine would
consume 12,000 to 15,000 gallons of water daily and that the local water district
would supply it, but provided no information as to the impacts on water service
elsewhere of supplying that amount of water to the mine. (Id. at pp. 830-831.)
The Court of Appeal held that without any “facts from which to evaluate the pros
and cons of supplying the [needed] amount of water” to the mine (id. at p. 829),
the EIR was inadequate.
Long-term supplies for a large project―a residential community and resort
to be developed over 25 years―were addressed in Stanislaus Natural Heritage
Project v. County of Stanislaus (1996) 48 Cal.App.4th 182 (Stanislaus Natural
Heritage). The EIR noted that “ ‘[a] firm water supply has not yet been
established beyond the first five years of development, although the applicant is
pursuing several sources.’ ” (Id. at p. 195.) Although the EIR listed several
possible sources of long-term water supply (id. at p. 194), it provided no analysis
of the likelihood of their materializing and their environmental impacts if
employed. Instead, the EIR deferred such analysis to future environmental review
of water acquisitions or “detailed project-level review for future phases of
development,” providing as a mitigation measure that if the applicant failed to
demonstrate and analyze the impacts of future water supplies, further phases of the
development would not be approved. (Id. at p. 195.)
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The appellate court held this treatment of future water supplies defeated
CEQA’s fundamental informational purpose. Before approving a specific plan for
an entire development, the decision makers must be informed of the intended
source or sources of water for the project, “what the impact will be if supplied
from a particular source or possible sources and if that impact is adverse how it
will be addressed.” (Stanislaus Natural Heritage, supra, 48 Cal.App.4th at
p. 206.) CEQA, the court recognized, permits the environmental analysis for long-
term, multipart projects to be “tiered,” so that the broad overall impacts analyzed
in an EIR at the first-tier programmatic level need not be reassessed as each of the
project’s subsequent, narrower phases is approved,6 but tiering “is not a device for
deferring the identification of significant environmental impacts that the adoption
of a specific plan can be expected to cause.” (Stanislaus Natural Heritage, at
p. 199.) Nor can the unanalyzed impacts of unknown water sources be mitigated
by providing that if water proves unavailable, the project’s future phases will not
be built: “While it might be argued that not building a portion of the project is the
ultimate mitigation, it must be borne in mind that the EIR must address the project
and assumes the project will be built.” (Id. at p. 206.)
In Santa Clarita Organization for Planning the Environment v. County of
Los Angeles (2003) 106 Cal.App.4th 715 (Santa Clarita), the EIR for a residential
and commercial development project, for which the Castaic Lake Water Agency
(Castaic) was to supply water, relied for analysis of cumulative development
impacts on Castaic receiving its full entitlement of 54,200 afa from the State
Water Project and purchasing an additional 41,000 afa in State Water Project
6
See Public Resources Code sections 21068.5, 21093, 21094; CEQA
Guidelines, California Code of Regulations, title 14, section 15152. We discuss
tiering further below.
14
water rights from another agency. (Id. at pp. 718-719.) Quoting another appellate
court’s recent observation that because the State Water Project had never been
fully constructed “there is a huge gap between what is promised and what can be
delivered,” rendering State Water Project entitlements nothing more than “hopes,
expectations, water futures or, as the parties refer to them, ‘paper water’ ”
(Planning & Conservation League v. Department of Water Resources (2000) 83
Cal.App.4th 892, 908, fn. 5), the Santa Clarita court held the EIR’s water supply
discussion was inadequate because of its assumption that “100 percent of Castaic’s
State Water Project entitlement” would be available to Castaic. (Santa Clarita, at
p. 722; see also California Oak Foundation v. City of Santa Clarita (2005) 133
Cal.App.4th 1219, 1238-1239, 1244 (California Oak) [disapproving EIR for an
industrial park because the water supply analysis relied, without adequate
consideration of the attendant uncertainties, on Castaic’s purchase of 41,000 afa in
imported State Water Project water].)
Finally, Napa Citizens for Honest Government v. Napa County Bd. of
Supervisors (2001) 91 Cal.App.4th 342 (Napa Citizens) considered the closely
related issue of what constitutes an adequate discussion of contingencies in case
the anticipated water supplies for a land use project fail to materialize. The EIR
for an industrial development project in Napa County stated that water would be
supplied by the City of American Canyon, which already supplied other users in
the area. American Canyon’s water sources were adequate for planned growth in
the short term, but in the longer term would fall short unless that city was able to
purchase additional water from the City of Vallejo, as it was trying to do. The EIR
assumed that purchase would go through and therefore found the project’s demand
for water would have no significant impact. (Id. at p. 372.) The appellate court
held the EIR inadequate for not disclosing possible alternative water sources and
their impacts. In light of the uncertainty regarding American Canyon’s future
15
supplies, the EIR “cannot simply label the possibility that they will not materialize
as ‘speculative,’ and decline to address it. The County should be informed if other
sources exist, and be informed, in at least general terms, of the environmental
consequences of tapping such resources.” (Id. at p. 373.)
While these decisions state no definitive standard of certainty for analysis
of future water supplies, they do articulate certain principles for analytical
adequacy under CEQA, principles with which we agree. First, CEQA’s
informational purposes are not satisfied by an EIR that simply ignores or assumes
a solution to the problem of supplying water to a proposed land use project.
Decision makers must, under the law, be presented with sufficient facts to
“evaluate the pros and cons of supplying the amount of water that the [project]
will need.” (Santiago County Water Dist. v. County of Orange, supra, 118
Cal.App.3d at p. 829.)
Second, an adequate environmental impact analysis for a large project, to
be built and occupied over a number of years, cannot be limited to the water
supply for the first stage or the first few years. While proper tiering of
environmental review allows an agency to defer analysis of certain details of later
phases of long-term linked or complex projects until those phases are up for
approval, CEQA’s demand for meaningful information “is not satisfied by simply
stating information will be provided in the future.” (Santa Clarita, supra, 106
Cal.App.4th at p. 723.) As the CEQA Guidelines explain: “Tiering does not
excuse the lead agency from adequately analyzing reasonably foreseeable
significant environmental impacts of the project and does not justify deferring
such analysis to a later tier EIR or negative declaration.” (Cal. Code Regs., tit. 14,
§ 15152, subd. (b).) Tiering is properly used to defer analysis of environmental
impacts and mitigation measures to later phases when the impacts or mitigation
measures are not determined by the first-tier approval decision but are specific to
16
the later phases. For example, to evaluate or formulate mitigation for “site
specific effects such as aesthetics or parking” (id., § 15152 [Discussion]) may be
impractical when an entire large project is first approved; under some
circumstances analysis of such impacts might be deferred to a later tier EIR.7 But
the future water sources for a large land use project and the impacts of exploiting
those sources are not the type of information that can be deferred for future
analysis. An EIR evaluating a planned land use project must assume that all
phases of the project will eventually be built and will need water, and must
analyze, to the extent reasonably possible, the impacts of providing water to the
entire proposed project. (Stanislaus Natural Heritage, supra, 48 Cal.App.4th at
p. 206.)
Third, the future water supplies identified and analyzed must bear a
likelihood of actually proving available; speculative sources and unrealistic
allocations (“paper water”) are insufficient bases for decisionmaking under
CEQA. (Santa Clarita, supra, 106 Cal.App.4th at pp. 720-723.) An EIR for a
7
Conversely, once a general project impact has been analyzed in the
broadest first-tier EIR, the agency saves time and resources by relying on that
first-tier analysis in later, more specific environmental analysis documents,
provided of course that passage of time or factors peculiar to the later project
phase do not render the first-tier analysis inadequate. (See § 21083.3 [limited
analysis required for development project consistent with general or community
plan that was subject of earlier EIR]; CEQA Guidelines, Cal. Code Regs., tit. 14,
§ 15152, subds. (d)-(f).) The Stanislaus Natural Heritage court gives the apt
example of a set of office building projects: the buildings’ traffic impacts and
other common environmental impacts would properly be discussed in a first-tier
EIR covering the entire set of buildings, a discussion that could be relied upon,
rather than repeated, in each of the building-specific environmental evaluations.
(Stanislaus Natural Heritage, supra, 48 Cal.App.4th at p. 198.) Impacts specific
to the individual buildings’ designs would properly be analyzed in later tier
documents.
17
land use project must address the impacts of likely future water sources, and the
EIR’s discussion must include a reasoned analysis of the circumstances affecting
the likelihood of the water’s availability. (California Oak, supra, 133 Cal.App.4th
at p. 1244.)
Finally, where even a full discussion leaves some uncertainty regarding
actual availability of the anticipated future water sources, CEQA requires some
discussion of possible replacement sources or alternatives to use of the anticipated
water, and of the environmental consequences of those contingencies. (Napa
Citizens, supra, 91 Cal.App.4th at p. 373.) The law’s informational demands may
not be met, in this context, simply by providing that future development will not
proceed if the anticipated water supply fails to materialize. But when an EIR
makes a sincere and reasoned attempt to analyze the water sources the project is
likely to use, but acknowledges the remaining uncertainty, a measure for curtailing
development if the intended sources fail to materialize may play a role in the
impact analysis. (See id. at p. 374.)
Significantly, none of the Court of Appeal decisions on point holds or
suggests that an EIR for a land use plan is inadequate unless it demonstrates that
the project is definitely assured water through signed, enforceable agreements with
a provider and already built or approved treatment and delivery facilities.
Requiring certainty when a long-term, large-scale development project is initially
approved would likely be unworkable, as it would require water planning to far
outpace land use planning. Indeed, one appellate court has held that speculative
water planning, in which water is developed before the need for it has been finally
determined, itself violates CEQA. (County of Amador v. El Dorado County Water
Agency, supra, 76 Cal.App.4th at p. 950 [water project should not have been
approved before county’s general plan was adopted and the impacts of planned
growth in land use were analyzed].)
18
Examination of other state statutes specifically addressing the coordination
of land use and water planning supports our conclusion CEQA should not be
understood to require assurances of certainty regarding long-term future water
supplies at an early phase of planning for large land development projects.
Pertinent are two measures enacted in 2001 “to ensure that local land use
authorities will thoroughly consider the availability of water supplies before
approving major new developments.” (Tepper, New Water Requirements for
Large-Scale Developments (Jan. 1995) 27 L.A. Law. 18, 20.)
Government Code section 66473.7 generally requires a city or county,
before approving a subdivision map for a residential development of more than
500 units, to obtain from the applicable public water system a “written
verification” that adequate water supplies will be available for that project as well
as other existing and planned future uses for a projected 20-year period. When the
verification rests on supplies not yet available to the water provider, it is to be
based on firm indications the water will be available in the future, including
written contracts for water rights, approved financing programs for delivery
facilities, and the regulatory approvals required to construct infrastructure and
deliver the water. (Id., subd. (d).) The subdivision map may be approved only if
the water system verifies, or the city or county finds on substantial evidence, that
water supplies will be adequate. (Id., subd. (b); see Tepper, New Water
Requirements for Large-Scale Developments, supra, 27 L.A. Law. at p. 20.)
While the verification or finding is required as a condition of subdivision
approval, “[n]othing in this section shall preclude the [local] legislative body . . .
from making the determinations required in this section earlier than” the
subdivision approval stage. (Gov. Code, § 66473.7, subd. (l).)
Water Code sections 10910 to 10912, enacted in 1995 but substantially
amended in 2001, apply more broadly to any large land use project (not only
19
residential developments) and to approval of any such project subject to CEQA
(not only to subdivision map approvals). (Wat. Code, §§ 10910, subd. (a), 10912,
subds. (a), (b).) They require the city or county considering a project to obtain, at
the outset of the CEQA process, a water supply “assessment” from the applicable
public water system. (Wat. Code, § 10910, subd. (b).) The “water supply
assessment” is then to be included in any CEQA document the city or county
prepares for the project. (Wat. Code, § 10911, subd. (b).)8 With regard to existing
supply entitlements and rights, a water supply assessment must include assurances
such as written contracts, capital outlay programs and regulatory approvals for
facilities construction (paralleling the assurances Gov. Code, § 66473.7, subd. (d)
requires for future water), but as to additional future supplies needed to serve the
project, the assessment need include only the public water system’s plans for
acquiring the additional supplies, including cost and time estimates and regulatory
approvals the system anticipates needing. (Wat. Code, §§ 10910, subd. (d)(2),
10911, subd. (a).)
Taken together, Water Code sections 10910 to 10912 and Government
Code section 66473.7 thus demand, as amicus curiae Association of California
Water Agencies explains, that “water supplies must be identified with more
specificity at each step as land use planning and water supply planning move
forward from general phases to more specific phases.” The plans and estimates
that Water Code section 10910 mandates for future water supplies at the time of
any approval subject to CEQA must, under Government Code section 66473.7, be
replaced by firm assurances at the subdivision map approval stage. To interpret
8
A section of CEQA, in turn, requires compliance with these Water Code
provisions. (Pub. Resources Code, § 21151.9.) The parties agree that the
County’s compliance with the Water Code requirements is not at issue in this case.
20
CEQA itself as requiring such firm assurances of future water supplies at
relatively early stages of the land use planning and approval process would put
CEQA in tension with these more specific water planning statutes.
Consistent with the foregoing, we emphasize that the burden of identifying
likely water sources for a project varies with the stage of project approval
involved; the necessary degree of confidence involved for approval of a
conceptual plan is much lower than for issuance of building permits. The ultimate
question under CEQA, moreover, is not whether an EIR establishes a likely source
of water, but whether it adequately addresses the reasonably foreseeable impacts
of supplying water to the project. If the uncertainties inherent in long-term land
use and water planning make it impossible to confidently identify the future water
sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty
involved, discusses the reasonably foreseeable alternatives―including alternative
water sources and the option of curtailing the development if sufficient water is
not available for later phases―and discloses the significant foreseeable
environmental effects of each alternative, as well as mitigation measures to
minimize each adverse impact. (§ 21100, subd. (b).) In approving a project based
on an EIR that takes this approach, however, the agency would also have to make,
as appropriate to the circumstances, any findings CEQA requires regarding
incorporated mitigation measures, infeasibility of mitigation, and overriding
benefits of the project (§ 21081) as to each alternative prong of the analysis.
Moreover, CEQA, in our understanding, does not require a city or county,
each time a new land use development comes up for approval, to reinvent the
water planning wheel. Every urban water supplier is already required to prepare
and periodically update an “urban water management plan,” which must, inter alia,
describe and project estimated past, present, and future water sources, supply and
demand for at least 20 years into the future. (Wat. Code, §§ 10620-10631.) When
21
an individual land use project requires CEQA evaluation, the urban water
management plan’s information and analysis may be incorporated in the water
supply and demand assessment required by both the Water Code and CEQA “[i]f
the projected water demand associated with the proposed project was accounted
for in the most recently adopted urban water management plan.” (Wat. Code
§ 10910, subd. (c)(2).) Thus the Water Code and the CEQA provision requiring
compliance with it (Pub. Resources Code, § 21151.9) contemplate that analysis in
an individual project’s CEQA evaluation may incorporate previous overall water
planning projections, assuming the individual project’s demand was included in
the overall water plan.
Finally, before assessing the adequacy of the FEIR’s water supply analysis,
we pause to clarify the nature of our review. As explained earlier, an agency may
abuse its discretion under CEQA either by failing to proceed in the manner CEQA
provides or by reaching factual conclusions unsupported by substantial evidence.
(§ 21168.5.) Judicial review of these two types of error differs significantly:
while we determine de novo whether the agency has employed the correct
procedures, “scrupulously enforc[ing] all legislatively mandated CEQA
requirements” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d
553, 564), we accord greater deference to the agency’s substantive factual
conclusions. In reviewing for substantial evidence, the reviewing court “may not
set aside an agency’s approval of an EIR on the ground that an opposite
conclusion would have been equally or more reasonable,” for, on factual
questions, our task “is not to weigh conflicting evidence and determine who has
the better argument.” (Laurel Heights I, supra, 47 Cal.3d at p. 393.)
In evaluating an EIR for CEQA compliance, then, a reviewing court must
adjust its scrutiny to the nature of the alleged defect, depending on whether the
claim is predominantly one of improper procedure or a dispute over the facts. For
22
example, where an agency failed to require an applicant to provide certain
information mandated by CEQA and to include that information in its
environmental analysis, we held the agency “failed to proceed in the manner
prescribed by CEQA.” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th
1215, 1236; see also Santiago County Water Dist. v. County of Orange, supra, 118
Cal.App.3d at p. 829 [EIR legally inadequate because of lack of water supply and
facilities analysis].) In contrast, in a factual dispute over “whether adverse effects
have been mitigated or could be better mitigated” (Laurel Heights I, supra, 47
Cal.3d at p. 393), the agency’s conclusion would be reviewed only for substantial
evidence. Thus, in Laurel Heights I, we rejected as a matter of law the agency’s
contention that the EIR did not need to evaluate the impacts of the project’s
foreseeable future uses because there had not yet been a formal decision on those
uses (id. at pp. 393-399), but upheld as supported by substantial evidence the
agency’s finding that the project impacts described in the EIR were adequately
mitigated (id. at pp. 407-408). (See also California Oak, supra, 133 Cal.App.4th
at p. 1244 [absent uncertain purchase of additional water, as to which the EIR’s
discussion is legally inadequate, “substantial evidence of sufficient water supplies
does not exist”].)
B. The FEIR’s Analysis of Near-term Groundwater Supplies
As previously described, the Sunrise Douglas Community and Specific
Plans proposed to rely initially on between 5,000 and 10,000 afa of groundwater to
be extracted at the Well Field, a new well facility drawing from the region’s
deeper aquifer; the FEIR analyzed the impacts and needed mitigation of such
extraction. Plaintiffs contend competing identified uses for the Well Field water,
in particular growth in the Mather Field, Sunrise Corridor and Security Park areas
of the County and the replacement of contaminated groundwater sources serving
23
those areas, are likely to use the full 10,000 afa capacity of the Well Field, making
the planned use of the same water for the Sunrise Douglas development
“completely out of the question.” As a result, plaintiffs argue, the Sunrise Douglas
project will need instead to employ some other, unknown near-term water source,
the impacts of which have not been analyzed.9
As explained above, we review solely for substantial evidence the County’s
factual conclusion that 5,000 afa or more of Well Field water will be available for
Sunrise Douglas. We disagree with plaintiffs that the FEIR’s analysis of
near-term water supply is inadequate on this ground.
The FEIR noted that “capacity would not be reserved in the [Well Field] for
any specific user; capacity would simply be available to users on a ‘first-come,
first-served’ basis, since the [Well Field] would be a public water facility”;
acknowledged that existing and new demand in the Mather Field, Sunrise Corridor
and Security Park areas might also be satisfied from the Well Field; and made
clear that serving all these demands as well as a significant portion of the Sunrise
Douglas project from the Well Field would require much more water than the
10,000 afa that source can safely provide. Nothing plaintiffs cite in the
administrative record, however, demonstrates that these competing demands can
be satisfied only from the Well Field or that they will all materialize in full in the
near term and have priority over the Sunrise Douglas project. Uncertainty in the
9
Plaintiffs also contend extraction from the Well Field will be limited by a
regional groundwater cap of 273,000 afa set under the Water Forum Agreement.
As Rancho Cordova explains, however, that limit was set at the projected 2005
level of groundwater withdrawals and may include projected growth in the Sunrise
Douglas area. According to discussion at a 2002 public hearing on the project,
taking 10,000 afa from the Well Field would bring total area groundwater
withdrawals to about 260,000 afa.
24
form of competition for identified water sources is an important point that should
be discussed in an EIR’s water supply analysis―and was here―but it does not
necessarily render development of the planned water supply too unlikely.
In fact, the record indicates that a substantial portion of the projected Well
Field water is likely to be used for the Sunrise Douglas project. The FEIR
explains that the initial phase of Well Field construction (three wells, pumping
about 2,265 afa) would include a pipeline connecting the wells to the Sunrise
Douglas project’s water distribution system and to a storage tank located at
Sunrise Boulevard and Douglas Road. Those facilities would be constructed and
operational within an estimated 18 months of project approval. Only with the
second phase of construction (three additional wells pumping about 3,262 afa)
would the Well Field be connected to the Water Agency’s larger Zone 40 system,
where it might also serve other users. The County’s findings also state that
developers within the Specific Plan area will be required to pay a per unit fee to
purchase insurance for compensation of any Well Field neighbors whose wells fail
as a result of the project.
With regard to competition from other planned development, the findings
state that already entitled development is expected to call, in the following six
years, on about 3,000 of the Well Field’s 10,000 afa production, leaving about
7,000 afa―more than the FEIR’s projected near-term demand of about 5,500
afa―for “development within the SunRidge Specific Plan area.” With regard to
replacement of contaminated groundwater, both the FEIR and the findings refer to
other remediation and replacement efforts not involving Well Field water; what
approaches will be taken and how successful they will be appear partly unknown.
While much uncertainty remains, then, the record contains substantial
evidence demonstrating a reasonable likelihood that a water source the provider
plans to use for the Sunrise Douglas project―a source that will initially be
25
connected only to the Sunrise Douglas project, for which the Sunrise Douglas
project developers will pay a special insurance fee, and which is not already
allocated to other entitled uses―will indeed be available at least in substantial part
to supply the Sunrise Douglas project’s near-term needs.
Nor did the County, in this instance, fail to proceed in the manner required
by CEQA. With regard to the near-term exploitation of groundwater from the
Well Field, the FEIR neither improperly used tiering to defer all analysis of
supplies to future stages of the project, as in Stanislaus Natural Heritage, supra,
48 Cal.App.4th 182, nor relied upon demonstrably illusory supplies, as in Santa
Clarita, supra, 106 Cal.App.4th 715, and California Oak, supra, 133 Cal.App.4th
1219. Although the FEIR did not demonstrate a level of certainty regarding future
supplies comparable to that required for subdivision approval under Government
Code section 66473.7, CEQA does not demand such certainty at the relatively
early planning stage involved here.
The Attorney General, as amicus curiae in support of plaintiffs, points out
that the Specific Plan occupies a later land use planning stage than the Community
Plan and that, under Government Code section 65457, a subdivision application
consistent with the Specific Plan would not require further CEQA analysis unless
substantial changes had occurred to the project or the surrounding circumstances,
or new information had surfaced about the project’s impacts (see Pub. Res. Code,
§ 21166). Nonetheless, to satisfy CEQA, an EIR for a specific plan need not
demonstrate certainty regarding the project’s future water supplies. To the extent
a subsequent subdivision proposal relies on different water sources than were
proposed in the specific plan it implements, or the likely availability of the
intended water sources has changed between the time of the specific plan and the
subdivision application (or more has been learned about the impacts of exploiting
those sources), changes in the project, the surrounding circumstances or the
26
available information would exist within the meaning of section 21166, requiring
additional CEQA analysis under that section and Government Code section 65457.
In holding the FEIR’s analysis of supplying water to the Specific Plan area from
the Well Field satisfies CEQA, therefore, we do not imply that the FEIR’s analysis
would suffice for approval of a future subdivision application proposing to use
different or additional near-term water sources.
C. Long-term Surface Water Supplies
With regard to the long-term provision of surface water supplies to the
project, plaintiffs again stress the competing demands for new water in the
County, including other planned growth and the replacement of contaminated
groundwater. They first note that the only assured source of new surface water
supplies, 15,000 afa in federal Fazio water (not all of which is yet available for
diversion), is clearly inadequate to meet long-term water demand in the southern
part of the County. In so arguing, however, plaintiffs seemingly ignore the
additional planned surface water supplies disclosed in the Water Forum Proposal
and the FEIR. True, those supplies are not certain to materialize: even the Fazio
water may in practice be limited to something less than 15,000 afa by lack of
adequate diversion and transmission facilities, while neither binding contracts nor
established facilities financing has been demonstrated for the remaining new
surface water. But as we have seen, CEQA does not require this level of certainty
at planning stages prior to approval of permits, subdivision maps or other
development entitlements. (Cf. Gov. Code, § 66473.7, subd. (d) [detailed
verification of future supplies required at subdivision approval stage].) The FEIR
discloses the remaining uncertainty regarding actual provision of surface water,
noting that “provision of a long-term reliable water supply . . . cannot be ensured
until facilities are approved.” The EIR thus contains substantial evidence to
27
support the conclusion that some part of the planned new surface water supplies
will be developed and made available to the Water Agency for use in its Zone 40.
Plaintiffs are correct, however, that the FEIR’s discussion of the total long-
term water supply and demand in the Water Agency’s Zone 40 (which includes
the Sunrise Douglas project) leaves too great a degree of uncertainty regarding the
long-term availability of water for this project. Factual inconsistencies and lack of
clarity in the FEIR leave the reader―and the decision makers―without
substantial evidence for concluding that sufficient water is, in fact, likely to be
available for the Sunrise Douglas project at full build out. Most fundamentally,
the project FEIR and the Water Forum Proposal final EIR provide no consistent
and coherent description of the future demand for new water due to growth in
Zone 40 or of the amount of new surface water that is potentially available to
serve that growth.
Regarding demand, the FEIR (in its background water supply discussion)
states: “The average water demand to support growth approved in the 1993
General Plan for the Zone 40 area, as expanded, is approximately 113,000 AF/yr.”
But the Water Forum Proposal and its associated final EIR, assertedly working
from the same general plan growth projections, provide a lower estimate: 87,000
afa in expanded Zone 40 demand by the year 2030. The reason for divergence in
these estimates is not explained. Also left unclear is whether these figures
represent water demand from expected growth alone or total demand including
that from expected growth.
As to supply, the FEIR, relying on the Water Forum Proposal, projects new
surface water deliveries of “approximately 63,857” afa to the south area of the
County (which includes the project and the Well Field), but elsewhere (responding
to a comment on the Draft EIR) discloses only 45,000 afa of expected new surface
water (“15,000 AF/year of ‘Fazio’ water from the [Central Valley Project];
28
30,000 AF/year from an assignment of [the Sacramento Municipal Utility District
(SMUD)’s] appropriative water rights on the American River”), plus an
“application” for an undisclosed amount of “surplus supplies on the Sacramento
River.” The final EIR for the Water Forum Proposal, however, is more optimistic,
disclosing to “up to 78,000” afa in new surface water.10
The FEIR does not explain the divergence between its estimates and those
in the Water Forum Proposal, or even the FEIR’s own use of divergent new
surface water supply figures in different portions of its discussion. In its findings
approving the project, the Board used the FEIR’s estimated demand figure of
113,000 afa and the FEIR’s new surface water supply figure of “approximately
63,857” afa, but did not attempt to explain the different estimates appearing
elsewhere in the Water Forum Proposal and FEIR. An explanation of the
differences among these figures may well exist, but it did not appear in the FEIR
presented to the public and the Board.
Nor does the FEIR make clear how the available water supply is expected
to meet total Zone 40 demand over the long term and, hence, why a sufficient
amount of the identified water should reasonably be expected to be available for
the Sunrise Douglas project. Demand of 113,000 afa “to support growth”
obviously cannot be met with new supplies of 63,857 afa. Even using the lowest
demand figure of 87,000 afa and the highest new surface water supply figure of
10
The 78,000 afa is made up of 15,000 afa in existing contractual rights to
American River diversion (Fazio water), 15,000 afa of SMUD’s American River
rights as to which the Water Agency and SMUD have reached an agreement in
principle, a final 15,000 afa as to which the Water Agency and SMUD are in
negotiations, plus 33,000 afa of intermittent water consisting of excess flows on
the American and Sacramento Rivers for which the Water Agency is applying.
29
78,000 afa (both drawn from the Water Forum Proposal, not from the FEIR), a
significant gap remains.
The general answer given in the FEIR, and echoed by real parties and
Rancho Cordova, is that the new surface water supplies are to be used
conjunctively with groundwater supplies. But this explanation is vague and
unquantified. By itself, reliance on “conjunctive use” is inadequate, for, as
plaintiffs argue, “CEQA requires more than a reference to a water supply
management practice as water supply analysis.” How much groundwater, existing
and new, will be used with how much new surface water? In what combinations
will these sources be used during wet and dry years, respectively? No such
description of planned future water use appears in the FEIR. As an amicus curiae
observes: “The conjunctive use program . . . lacks quantification, with no analysis
that would disclose whether the program will produce sufficient supplies and
storage capacity to meet expected demands.”
Instead of itself providing an analytically complete and coherent
explanation, the FEIR notes that a full analysis of the planned conjunctive use
program must await environmental review of the Water Agency’s Zone 40 master
plan update, which was pending at the time the FEIR was released. The Board’s
findings repeat this explanation. To the extent the FEIR attempted, in effect, to
tier from a future environmental document, we reject its approach as legally
improper under CEQA. If the environmental impact analysis the Water Agency
expects to perform on its Zone 40 master plan update is important to
understanding the long-term water supply for the Sunrise Douglas project, it
should be performed in the Sunrise Douglas project FEIR even though that might
result in subsequent duplication by the master plan update. If, as Rancho Cordova
argues, such duplication would be an impractical waste of resources, the County
could instead have deferred analysis and approval of the Sunrise Douglas project
30
until the master plan update analysis was complete, then tiered the project FEIR
from the programmatic analysis it performed there. What the County could not do
was avoid full discussion of the likely water sources for the Sunrise Douglas
project by referring to a not yet complete comprehensive analysis in the Zone 40
master plan update. CEQA’s informational purpose “is not satisfied by simply
stating information will be provided in the future.” (Santa Clarita, supra, 106
Cal.App.4th at p. 723.)
A reader of the FEIR, moreover, cannot readily derive the missing
quantitative analysis of conjunctive use from the figures provided. The 10,000 afa
in new groundwater to be drawn from the Well Field does not appear sufficient to
bridge the dry-year gap between new surface water supplies and demand due to
Zone 40 growth, which appears to be 42,000 afa at a minimum: 45,000 afa in
planned dry-year surface water diversion rights versus 87,000 afa in demand (both
figures per the Water Forum Proposal final EIR). In wet years even less
groundwater would be available for extraction, as conjunctive use involves
recharging the aquifer in wet years.
To be sure, the County’s burden in preparing the FEIR for the Sunrise
Douglas project was not necessarily to demonstrate with certainty that the
County’s total water supply in the year 2030 would be sufficient to meet its total
demand, though some discussion of total supply and demand is necessary to
evaluate “the long-term cumulative impact of development on water supply.”
(Santa Clarita, supra, 106 Cal.App.4th at p. 719; see also CEQA Guidelines, Cal.
Code Regs., tit. 14, § 15130, subd. (b)(1)(B) [cumulative impact analysis may
employ projections in general planning documents].) But CEQA did require that
the FEIR show a likelihood water would be available, over the long term, for this
31
project.11 Without an explanation that shows at least an approximate long-term
sufficiency in total supply, the public and decision makers could have no
confidence that the identified sources were actually likely to fully serve this
extraordinarily large development project. An EIR that neglects to explain the
likely sources of water and analyze their impacts, but leaves long-term water
supply considerations to later stages of the project, does not serve the purpose of
sounding an “ ‘environmental “alarm bell” ’ ” (Laurel Heights I, supra, 47 Cal.3d
at p. 392) before the project has taken on overwhelming “bureaucratic and
financial momentum” (id. at p. 395).
In this respect, the FEIR’s discussions of near- and long-term water
supplies differ significantly. As explained in part I.B. above, the FEIR included
substantial evidence that competing users would not deprive the Sunrise Douglas
project of most of its planned groundwater from the Well Field. But the FEIR
contains no evidence, other than the gross demand figures (which are, as noted,
inconsistent) regarding the uses that might be expected to compete with Sunrise
Douglas for the planned new surface water over the next 20 or more years.
Real parties point to a discussion of conjunctive use in the Water Forum
Proposal that refers to larger amounts of groundwater than will be drawn from the
Well Field. But the origin and precise reference of these figures is not explained,
nor is their connection to the demand figures made entirely plain.12 More
11
Other analytical paths are possible (see ante, at p. 21 and post, at pp. 39-40)
but were not pursued in the FEIR.
12
The Water Forum Proposal discussion refers to use of 34,000 afa and
95,100 afa in groundwater in wet and dry years, respectively, as being used
conjunctively with new surface water supplies to meet “a total 2030 demand of
117,600” afa for the “South County M & I users group.” The exact relationship of
this demand figure to those in the FEIR and elsewhere in the Water Forum
(footnote continued on next page)
32
important, neither these figures nor any reference to this analysis appears in the
FEIR or even, so far as we are able to determine, in the Water Forum Proposal’s
final EIR. A reader of the FEIR could not reasonably be expected to ferret out an
unreferenced discussion in the earlier Water Forum Proposal, interpret that
discussion’s unexplained figures without assistance, and spontaneously
incorporate them into the FEIR’s own discussion of total projected supply and
demand. The data in an EIR must not only be sufficient in quantity, it must be
presented in a manner calculated to adequately inform the public and decision
makers, who may not be previously familiar with the details of the project.
“[I]nformation ‘scattered here and there in EIR appendices’ or a report ‘buried in
an appendix,’ is not a substitute for ‘a good faith reasoned analysis.’ ” (California
Oak, supra, 133 Cal.App.4th at p. 1239, quoting Santa Clarita, supra, 106
Cal.App.4th at pp. 722-723.) To the extent the County, in certifying the FEIR as
complete, relied on information not actually incorporated or described and
referenced in the FEIR, it failed to proceed in the manner provided in CEQA.
We do not hold or suggest that the Sunrise Douglas FEIR needed to
reproduce or repeat an environmental impact analysis for new surface water
supplies already performed in connection with the Water Forum Proposal. As
discussed in the statement of facts, the final EIR for the Water Forum Proposal did
discuss the impacts of the planned additional diversions of American River water;
indeed, a summary of these impacts and the proposed mitigation measures
occupies 85 pages of that EIR. The contemplated diversions include additional
water for the Water Agency to use in its Zone 40 area, which, as noted, includes
(footnote continued from previous page)
Proposal (113,000 afa and 87,000 afa, respectively) is not clear, and the source of
the proposal’s groundwater supply figures is not identified.
33
Sunrise Douglas. To the extent the Community and Specific Plans call for that
same surface water to be used by the Sunrise Douglas development, the FEIR
could have properly tiered from or incorporated the earlier environmental analysis.
CEQA does not require that the information on impacts of diversion laid out in the
Water Forum Proposal’s final EIR be repeated in environmental documents for
every development that depends on that water. (See § 21068.5 [through tiering,
applicable analysis information in an EIR for a policy or program may be
incorporated by reference in later narrow or site-specific project EIR’s].)13
The FEIR did not, however, make sufficiently clear its relationship with the
Water Forum Proposal’s environmental impact analysis. Although the FEIR’s
water supply discussion refers at several points to the Water Forum Proposal’s
final EIR, the FEIR does not state that it is tiered from or incorporates parts of the
earlier document. In its background discussion, the FEIR lists the Water Forum
Proposal’s final EIR as one of the technical analyses upon which it is based but,
again, does not expressly incorporate any part of that document by reference or
state that it is formally tiered from the earlier environmental impact analysis.
Because it does not expressly tier from or incorporate the earlier documents, a
reader of the FEIR would not be alerted that in order to apprehend the intended
13
At oral argument, plaintiffs’ counsel asserted the Water Forum Proposal
could not be relied upon because, inter alia, it was formulated before discovery of
widespread groundwater contamination in the Zone 40 area. In using tiering, of
course, an agency must consider “whether, in light of changing circumstances, the
EIR prepared earlier in the process would still provide an adequate description of
the broad effects considered at that stage.” (CEQA Guidelines, Cal. Code Regs.,
tit. 14, § 15152 [Discussion].) We do not attempt to resolve the factual question
whether the Water Forum Proposal’s conjunctive use assumptions need to be
reevaluated in light of groundwater contamination discovered in the interim. That
should be decided in the first instance by Rancho Cordova in proceedings on
remand.
34
surface water supply for the Sunrise Douglas project, and particularly the impacts
of exploiting that supply, he or she must separately read parts of those earlier
documents. And the reader who did look to the earlier documents would do so
without explicit reference in the FEIR to the particular portions incorporated.
When an EIR uses tiering or incorporation, it must give the reader a better road
map to the information it intends to convey. (See CEQA Guidelines, Cal. Code
Regs., tit. 14, §§ 15150, subd. (c) [when an EIR incorporates an earlier
environmental document by reference, “the incorporated part of the referenced
document shall be briefly summarized where possible” and “[t]he relationship
between the incorporated part of the referenced document and the EIR shall be
described”], 15152, subd. (g) [when tiering is used, “[t]he later EIR or negative
declaration should state that the lead agency is using the tiering concept and that it
is being tiered with the earlier EIR”].)
The audience to whom an EIR must communicate is not the reviewing
court but the public and the government officials deciding on the project. That a
party’s briefs to the court may explain or supplement matters that are obscure or
incomplete in the EIR, for example, is irrelevant, because the public and decision
makers did not have the briefs available at the time the project was reviewed and
approved. The question is therefore not whether the project’s significant
environmental effects can be clearly explained, but whether they were. The
Sunrise Douglas FEIR fails that test.
Because the FEIR failed to explicitly incorporate the impacts and
mitigation discussion in the Water Forum Proposal’s final EIR, it lacks, contrary
to CEQA’s requirements, enforceable mitigation measures for the surface water
diversions intended to serve the Sunrise Douglas project. “A public agency shall
provide that measures to mitigate or avoid significant effects on the environment
are fully enforceable through permit conditions, agreements, or other measures.
35
Conditions of project approval may be set forth in referenced documents which
address required mitigation measures or, in the case of the adoption of a plan,
policy, regulation, or other public project, by incorporating the mitigation
measures into the plan, policy, regulation, or project design.” (§ 21081.6, subd.
(b); see also CEQA Guidelines, Cal. Code Regs., tit. 14, § 15126.4, subd. (a)(2).)
The County could have complied with this command by incorporating the Water
Forum Proposal final EIR’s mitigation measures into the Community and Specific
Plans. But absent such incorporation, the FEIR, and the County’s findings based
on it, are inadequate to support project approval under CEQA because they do not
discuss the impacts of new surface water diversions, enforceable measures to
mitigate those impacts, or the remaining unmitigated impacts. (See § 21081.)14 In
this respect, the County failed to proceed in the manner required by CEQA.
Real parties also assert that the FEIR’s mitigation measure WS-1, which
states that entitlements for development within the Sunrise Douglas project shall
not be granted without firm proof of available water supplies, assures that water
will be available for later phases of the project. As discussed earlier, however, an
EIR may not substitute a provision precluding further development for
identification and analysis of the project’s intended and likely water sources.
“While it might be argued that not building a portion of the project is the ultimate
mitigation, it must be borne in mind that the EIR must address the project and
assumes the project will be built.” (Stanislaus Natural Heritage, supra, 48
Cal.App.4th at p. 206.) A provision like WS-1 could serve to supplement an EIR’s
14
To the extent mitigation of the impacts of new surface water diversions
under the Water Forum Agreement is the responsibility of agencies other than the
County, approval of the project would require the finding set out in section 21081,
subdivision (a)(2).
36
discussion of the impacts of exploiting the intended water sources; in that case,
however, the EIR, in order adequately to inform decision makers and the public,
would then need to discuss the probability that the intended water sources for later
phases of development will not eventuate, the environmental impacts of curtailing
the project before completion, and mitigation measures planned to minimize any
such significant impacts. The Sunrise Douglas FEIR did not attempt such an
analysis. In this respect as well, the County erred procedurally.
In short, the FEIR’s long-term water supply discussion suffers from both
lack of substantial evidence to support its key factual conclusion and legally
defective procedures. On the factual question of how future surface water supplies
will serve this project as well as other projected demand in the area, the project
FEIR presents a jumble of seemingly inconsistent figures for future total area
demand and surface water supply, with no plainly stated, coherent analysis of how
the supply is to meet the demand. The reader attempting to understand the
County’s plan for providing water to the entire Sunrise Douglas development is
left to rely on inference and speculation. In this respect, the FEIR water supply
discussion fails to disclose “the ‘analytic route the . . . agency traveled from
evidence to action’ ” and is thus not “sufficient to allow informed decision
making.” (Laurel Heights I, supra, 47 Cal.3d at p. 404.)
The concurring and dissenting opinion purports to find our holding―that
the FEIR’s long-term water supply discussion is legally insufficient, while the
short-term discussion is adequate―“surprising” and the distinctions on which it
rests “elusive.” (Conc. & dis. opn. of Baxter, J., post, at pp. 2, 4.) For maximum
clarity, we summarize the pertinent distinctions here.
(1) The time periods involved: According to the FEIR, the first phase of
groundwater supply is to occur within about 18 months of project approval, with
the second phase following as needed. In contrast, real parties suggest full build
37
out of the Community Plan may take 15 to 20 years. As the planning horizon is
extended, one’s confidence that large quantities of new surface water will be
available, and not allocated to competing projects that may be developed in the
future, necessarily decreases.
(2) Discussion of facilities and competing uses: As already discussed (see
ante, at p. 25), the administrative record contains information on the potential
competitors for Well Field water that, taken together with information on the
planned development of the facilities for delivering the water to Sunrise Douglas,
is sufficient to demonstrate a likelihood of its availability for Sunrise Douglas. In
contrast, the record contains no information (beyond the County’s general plan
projections) on other planned long-term developments in Zone 40. Nor does the
FEIR disclose any concrete plans for new surface water diversion, treatment and
transmission facilities that would tend to tie the new water particularly to Sunrise
Douglas. A reader of the FEIR is not informed what other Zone 40 development
projects are in prospect over the long term, what their specific water needs will be,
or when they will draw on available supplies.15 In these circumstances, the FEIR
could not demonstrate a likelihood of adequate long-term supply for Sunrise
Douglas without showing that plans for the Zone 40 area call for at least a rough
balance between water supply and demand, a showing the FEIR fails to make.
15
The concurring and dissenting opinion’s assertion that no other projects in
Zone 40 have been “entitled, approved, or even proposed” (conc. & dis. opn. of
Baxter, J., post, at p. 5) is thus without factual basis in the FEIR. In effect, the
concurring and dissenting opinion simply assumes that Sunrise Douglas will be
first in line for sufficient new surface water supplies when those supplies are
developed, which could be 10, 15 or more years in the future. Such assumptions
are no more reliable, and no more legally supportable, than the assumption that a
water district would in the future, contrary to historical experience, receive 100
percent of its SWP allocation. (See Santa Clarita, supra, 106 Cal.App.4th at
p. 722.)
38
(3) Analysis of impacts and mitigation measures: The FEIR analyzes the
impacts of withdrawing groundwater from the Well Field to meet the project’s
water needs in the near term and proposes mitigation measures, which the County
adopted in approving the project. As already discussed, however, the FEIR
contains no discussion of the impacts of new surface water diversion or the
measures needed to mitigate those impacts and does not adequately incorporate
the impact and mitigation discussion contained in the Water Form Proposal’s final
EIR. (See ante, at pp. 34-36.) The FEIR neither states that it is tiered from that
earlier EIR, nor expressly incorporates the pertinent discussion from it, nor guides
the reader with a summary of the contents of the earlier discussion or a specific
reference to the discussion’s location within the earlier document, nor incorporates
mitigation measures proposed in the earlier EIR into proposed measures the
County could adopt as enforceable requirements for implementing the Community
and Specific Plans.
The concurring and dissenting opinion also asserts that our decision here
will hold Sunrise Douglas and other developments “hostage to a balancing of
supply and demand for all conceivable development that is not prohibited by the
County’s general plan.” (Conc. & dis. opn. of Baxter, J., post, at p. 5.) This claim
misses the mark for two reasons, both of which we have already explained. First,
CEQA does not necessarily require that an EIR show that total water supply and
demand are or will be in balance in an area. The EIR may by other means
demonstrate a reasonable likelihood that water will be available for the project
from an identified source (see ante, at pp. 25-26 [near-term water supply
discussion for this project]) and, even without a showing that water from the
identified source is likely to be sufficient, an EIR may satisfy CEQA by fully
39
disclosing the uncertainty, the other possible outcomes, their impacts and
appropriate mitigation measures. (See ante, at p. 21.)16 Second, long-term local
water planning is not a burden that must be taken up anew, for CEQA purposes,
each time a development is proposed; rather, cities and counties may rely on
existing urban water management plans, so long as the expected new demand of
the development was included in the water management plan’s future demand
accounting. (See ante, at pp. 21-22; Wat. Code, § 10910, subd. (c)(2); Pub.
Resources Code, § 21151.9.)
In summary, the FEIR’s long-term water supply discussion suffers from
both procedural and factual flaws. Procedurally, the FEIR improperly purports to
tier from a future environmental document, the pending Zone 40 master plan
analysis. The FEIR also fails to properly incorporate or tier from the impact and
mitigation discussion of the Water Forum Proposal and hence to include in the
present project enforceable mitigation measures for the large new surface water
diversions proposed. Finally, it relies on a provision for curtailing later stages of
development if water supplies do not materialize without disclosing, or proposing
mitigation for, the environmental effects of such truncation. Factually, the FEIR’s
use of inconsistent supply and demand figures, and its failure to explain how those
figures match up, results in a lack of substantial evidence that new surface water
diversions are likely to supply the project’s long-term needs. We think that with
approval at stake of a development project ultimately expected to use more than
16
As we do not hold that CEQA requires planning for a development project
to necessarily establish a future area-wide balance between water supply and
demand, the concurring and dissenting opinion’s claim that our holding mandates
what the Legislature deliberately omitted from Water Code section 10911 (see
conc. & dis. opn. of Baxter, J., post, at pp. 6-7) is unfounded.
40
22,000 afa of water―almost 4 percent of the entire County’s projected urban
demand in the year 2030―CEQA entitles the decision makers and the public to a
legally proper procedure and to a clearer, more coherent and consistent
explanation of how, given the competing demands expected to arise for new water
supplies, water is to be provided to the project.
II. Recirculation of the Draft EIR for Comment on the Cosumnes
River Salmon Impacts
Section 21092.1 provides that when a lead agency adds “significant new
information” to an EIR after completion of consultation with other agencies and
the public (see §§ 21104, 21153) but before certifying the EIR, the lead agency
must pursue an additional round of consultation. In Laurel Heights II, supra, 6
Cal.4th at page 1129, we held that new information is “significant,” within the
meaning of section 21092.1, only if as a result of the additional information “the
EIR is changed in a way that deprives the public of a meaningful opportunity to
comment upon a substantial adverse environmental effect of the project or a
feasible way to mitigate or avoid such an effect.” (Accord, CEQA Guidelines,
Cal. Code Regs., tit. 14, § 15088.5, subd. (a).) Recirculation is not mandated
under section 21092.1 when the new information merely clarifies or amplifies the
previously circulated draft EIR, but is required when it reveals, for example, a new
substantial impact or a substantially increased impact on the environment. (Laurel
Heights II, at pp. 1129-1130.) We further held the lead agency’s determination
that a newly disclosed impact is not “significant” so as to warrant recirculation is
reviewed only for support by substantial evidence. (Id. at p. 1135.)
In this case, the Draft EIR contained no discussion of the impact the
planned groundwater extraction at the Well Field would have on water flows and
habitats in the Cosumnes River. When several agencies and private organizations
commenting on the Draft EIR raised concerns regarding such effects and the
41
resulting impacts on salmon migration, County staff responded in the FEIR that,
due to restrictions on the amount of water to be pumped from the Well Field and
the limited hydrological connections between the Cosumnes River and the aquifer
from which water would be taken, the impact on Cosumnes River flows would be
small and insignificant. The County adopted that conclusion in its findings
approving the project.
Plaintiffs contend, and we agree, that the County’s finding is not supported
by substantial evidence because the FEIR discloses a potentially significant impact
of reduced river flows on aquatic species, including migrating salmon.17 While
concluding the effect of further groundwater withdrawals was likely to be small
and therefore generally insignificant, the FEIR authors included this proviso:
“The potential exception could be during periods of very low flow. During such
periods of low flow, these depletions could change the timing and areal extent of
the dewatering of the stream invert, potentially impacting aquatic and riparian-
dependent species and habitat.”
Though phrased as a limited exception to the conclusion of insignificance,
this reservation appears instead to identify a substantial, or at least potentially
substantial, new impact. That is because “periods of very low flow” are precisely
those in which, according to comments on the Draft EIR by the United States Fish
and Wildlife Service and the Nature Conservancy, migratory fish, waiting in the
fall for streamflows to rise to sufficient levels, are likely to be adversely affected
17
Under section 21068, a significant environmental impact is defined as “a
substantial, or potentially substantial, adverse change in the environment.” (Italics
added.) In Laurel Heights II, supra, 6 Cal.4th at page 1131, we explained that
recirculation had been required in an earlier case because the draft EIR had not
addressed a “potentially substantial adverse environmental effect.” (Italics
added.)
42
by further dewatering. The potential adverse change identified by the FEIR in
“the timing and areal extent of the [Cosumnes’s] dewatering” is impossible to
distinguish from the barrier to migration caused, according to the Nature
Conservancy’s comment, when the Cosumnes River “ceases flowing earlier in the
year, stays dry longer into the Fall, and dries over an increasingly long reach . . . .”
Moreover, the area of the Cosumnes River in which the FEIR projects
potential loss of flow overlaps with the river’s migratory reach. The Fish and
Wildlife Service comment identifies the migratory reach as “from the tidal zone to
LaTrobe Rd.,” a reach that includes both of the areas identified by the FEIR as
having a hydrological connection to the lower aquifer (“to the east of Dillard Road
and to the west of Twin Cities Road”).18
Thus, in response to comments raising the issue of an impact on salmon
migration in the Cosumnes River, the FEIR states, in effect, that loss of flow to
that river is likely to be small and therefore insignificant except that the river
might remain drier longer in the year―including when the salmon would be
migrating―and over a longer reach―including where the salmon would be
migrating. We do not consider this response substantial evidence that the loss of
stream flows would have no substantial effect on salmon migration. Especially
given the sensitivity and listed status of the resident salmon species, the County’s
failure to address loss of Cosumnes River stream flows in the Draft EIR
“ ‘deprived the public . . . of meaningful participation’ ” (Laurel Heights II, supra,
6 Cal.4th at p. 1131) in the CEQA discussion. (See CEQA Guidelines, Cal. Code
18
As plaintiffs point out, LaTrobe Road crosses the Cosumnes River
upstream (east) of the river’s crossing with Dillard Road. We may take notice of
this fact under Evidence Code sections 452 and 459. (See Thomas Guide to
Sacramento County (2001) pp. 6-7.)
43
Regs., tit. 14, § 15065, subd. (a)(1) [potential substantial impact on endangered,
rare or threatened species is per se significant].)
Real parties and Rancho Cordova point out that the FEIR “contemplated
additional environmental review of the Cosumnes River issue in the then-pending”
Zone 40 master plan EIR. But as we explained in part I above, analysis of the
project’s impacts could not be deferred in this manner. An EIR cannot be tiered
from another EIR if the latter is not yet complete.
The burden of revising and recirculating the Draft EIR, we note, is limited
by the narrowness of the issue on which we determine it is required. “If the
revision is limited to a few chapters or portions of the EIR, the lead agency need
only recirculate the chapters or portions that have been modified.” (CEQA
Guidelines, Cal. Code Regs., tit. 14, § 15088.5, subd. (c).)
CONCLUSION
The preparation and circulation of an EIR is more than a set of technical
hurdles for agencies and developers to overcome. The EIR’s function is to ensure
that government officials who decide to build or approve a project do so with a
full understanding of the environmental consequences and, equally important, that
the public is assured those consequences have been taken into account. (Laurel
Heights I, supra, 47 Cal.3d at pp. 391-392.) For the EIR to serve these goals it
must present information in such a manner that the foreseeable impacts of
pursuing the project can actually be understood and weighed, and the public must
be given an adequate opportunity to comment on that presentation before the
decision to go forward is made. On the important issues of long-term water
supply and impacts on migratory fish, the County’s actions in the present case fell
short of these standards.
44
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with this opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
45
CONCURRING AND DISSENTING OPINION BY BAXTER, J.
I concur in the majority’s conclusion that the final environmental impact
report (FEIR) for the Sunrise Douglas project adequately assessed the near-term
environmental impacts of supplying water to the proposed development. This
conclusion rests in large part on the majority’s finding of a reasonable likelihood
that groundwater from the North Vineyard Well Field (Well Field) would be
available to supply the project’s near-term needs. I agree in particular that
substantial evidence supports the FEIR’s reliance on the Well Field even though
Well Field water had not been reserved “ ‘for any specific user’ ” and would be
made available “ ‘on a “first-come, first served” basis’ ” (maj. opn., ante, at p. 24),
even though existing demand and new demand in the region “might also be
satisfied from the Well Field” (ibid.), even though serving that demand and the
initial phase of the Sunrise Douglas project “would require much more water than
. . . [the Well Field] can safely provide” (ibid.), and even though “much
uncertainty remains” as to the Well Field’s ability to supply water to the project in
the near term (id. at p. 25). As the majority explains, nothing in the administrative
record demonstrates “that these competing demands can be satisfied only from the
Well Field or that they will all materialize in full in the near term and have priority
over the Sunrise Douglas project.” (Id. at p. 24.) Indeed, as the majority
subsequently explains, there is more than enough water that can be drawn from the
1
Well Field to satisfy this project’s near-term demand even after one subtracts the
expected demand for “already entitled development.” (Id. at p. 25, italics added.)
Like the majority, I further agree that the FEIR need not provide “firm
assurances” of long-term water supplies at the early stages of the land use
planning and approval process, inasmuch as the “ultimate question” under the
California Environmental Quality Act (CEQA) “is not whether an EIR establishes
a likely source of water, but whether it adequately addresses the reasonably
foreseeable impacts of supplying water to the project.” (Maj. opn., ante, at p. 21.)
The requisite level of specificity in identifying water supplies thus increases “ ‘at
each step as land use planning and water supply planning move forward from
general phases to more specific phases.’ ” (Id. at p. 20.) For example, because the
SunRidge Specific Plan is further along the planning process than is the Sunrise
Douglas Community Plan (id. at p. 26), CEQA imposes a greater level of
specificity in identifying water supplies for the Specific Plan than it does for the
Community Plan. What is sufficiently specific for the Specific Plan in the near
term should therefore prove more than sufficient for the Community Plan in the
long term, inasmuch as “CEQA should not be understood to require assurances of
certainty regarding long-term future water supplies at an early phase of planning
for large land development projects.” (Id. at p. 19.)
The surprising thing, though, is that the majority has adopted precisely the
opposite rule in analyzing the sufficiency of the FEIR for this project in the long
term. The FEIR estimates the average water demand of the entire Sunrise Douglas
Community Plan at full build out will be 22,103 acre-feet annually (afa). The
sources identified in the record to meet this demand are more than ample: at least
5,500 afa from the Well Field, with a possibility of up to 10,000 afa; 15,000 afa of
American River water under the Sacramento County Water Agency’s existing
contract with the federal Bureau of Reclamation (an allocation known as Fazio
2
water); 15,000 afa of American River water under the water agency’s agreement
in principle with the Sacramental Municipal Utility District (SMUD); an
additional 15,000 afa as to which the water agency and SMUD are in negotiations;
and 33,000 afa of intermittent water consisting of excess flows on the American
and Sacramento Rivers for which the water agency is applying. In other words,
the FEIR has identified sufficient water for this project three or four times over.
Why the majority nonetheless holds that the FEIR has insufficiently
identified long-term water supplies for Sunrise Douglas—and, in doing so,
reverses both the trial court and the Court of Appeal—is thus difficult to
comprehend. There does not appear to be a problem with the likelihood that the
identified water supplies will come to fruition. Although these supplies “are not
certain to materialize,” the majority correctly points out that “CEQA does not
require this level of certainty at planning stages prior to approval of permits,
subdivision maps or other development entitlements.” (Maj. opn., ante, at p. 27.)
There also does not appear to be a problem with the analysis of the reasonably
foreseeable impacts of supplying water to the project in the long term, inasmuch as
the FEIR for the Water Forum Proposal “extensively analyzed the environmental
impacts of the participants’ planned increases in surface water diversion”—indeed,
a summary of these impacts and the proposed mitigation measures occupies 85
pages of that FEIR—and the FEIR for this project analyzed “[t]he impacts of
groundwater withdrawals at the Well Field.” (Maj. opn., ante, at p. 5.)
The majority’s rejection of the Sunrise Douglas FEIR rests instead on the
FEIR’s failure to balance total long-term water supply and demand in the entirety
of the Sacramento County Water Agency’s Zone 40, an area comprising the
southern and eastern regions of the county that is almost ten times as large as the
Sunrise Douglas project. The majority simply asserts, without explanation, that
while substantial evidence “support[s] the conclusion that some part of the
3
planned new surface water supplies will be developed and made available to the
Water Agency for use in its Zone 40” (maj. opn., ante, at p. 28), there is “too great
a degree of uncertainty regarding the long-term availability of water for this
project.” (Ibid., italics added.) The distinction is an elusive one. The Fazio water
for the long term, like the Well Field water in the short term, will be made
available to users on a first-come, first-served basis, and, as with the Well Field
water, there is no indication in the record that capacity for these long-term supplies
has been “ ‘reserved . . . for any specific user,’ ” that these other “competing
demands” can be satisfied only from the identified supplies, or that the potential
demand from other sources will all “materialize in full” in the relevant period and
“have priority over the Sunrise Douglas project.” (Id. at p. 24.) The only
significant distinction I can see is that, in contrast to its discussion of the Well
Field water, the majority does not identify any portion of the project’s long-term
supplies that has been “already allocated to other entitled uses.” (Id. at p. 26.) But
that distinction, of course, would favor the FEIR’s analysis of the project’s long-
term supplies. Thus, if the majority’s analysis of the two situations had been
consistent, the majority should have found substantial evidence that these long-
term supplies will be available at least in substantial part to supply the Sunrise
Douglas project. The majority finds otherwise only by assuming that other users
will have priority on all of the identified supplies—or, to put it another way, by
speculating that there is evidence outside the record that would rebut the Board’s
finding, sustained by both the trial court and the Court of Appeal below, that the
supplies will be adequate. (See maj. opn., ante, at p. 38, fn. 15.)
The path the majority pursues to reverse the lower court judgments is a
curious one. What dooms the FEIR here, according to the majority, is the
potential for increased long-term demand from other, purely hypothetical projects
that could be developed under the 1993 general plan for the Zone 40 area—even
4
if, so far as the record discloses, those projects have not yet been entitled,
approved, or even proposed. In other words, Sunrise Douglas must be held
hostage to a balancing of supply and demand for all conceivable development that
is not prohibited by the County’s general plan—even if no one has yet stepped
forward to propose such development.
Until today, this was not the law in California.1 The majority can find no
support for its new rule in the statute for, as the majority concedes (maj. opn.,
ante, at p. 12), neither CEQA itself nor this court’s decisions have ever before
required a project EIR not only to demonstrate a reasonable likelihood that there is
water for the project at issue but also that there is water for all hypothetical future
projects nearby, including those no entity has yet planned to build. Thus, as the
majority elsewhere observes, “[d]ecision makers must, under the law, be presented
with sufficient facts to ‘evaluate the pros and cons of supplying the amount of
water that the [project] will need.’ ” (Maj. opn., ante, at p. 16, quoting Santiago
County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 829.) An
EIR “must analyze, to the extent reasonably possible, the impacts of providing
water to the entire proposed project.” (Maj. opn., ante, at p. 17.) An EIR, in
particular, need not analyze a “ ‘worst case scenario’ ” and “need not identify and
analyze all possible resources that might serve the Project should the anticipated
resources fail to materialize.” (Napa Citizens for Honest Government v. Napa
County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 373.) None of these cases
1
It also, quite obviously, is not the test by which the majority has approved
the adequacy of the FEIR’s analysis of water supplies in the near term. The
majority finds that analysis adequate, notwithstanding the fact that supplying
existing and new demand in the area as well as a significant portion of the Sunrise
Douglas project from the Well Field in the near term “would require much more
water than the 10,000 afa that source can safely provide.” (Maj. opn., ante, at p.
24.)
5
requires an EIR to identify a water supply sufficient to meet the demands of all
development envisioned by the project, together with all hypothetical future
development that might look to the same supplies.
The majority suggests that a balancing of total supply and demand in the
Zone 40 region is required by the CEQA Guidelines (Cal. Code Regs., tit. 14,
§ 15000 et seq.) in order to evaluate the long-term cumulative impact of
development on water supply. (Maj. opn., ante, at p. 31, citing CEQA Guidelines,
Cal. Code Regs., tit. 14, § 15130, subd. (b)(1)(B).) But a “cumulative impact”
consists of “the change in the environment which results from the incremental
impact of the project when added to other closely related past, present, and
reasonably foreseeable probable future projects” (CEQA Guidelines, tit. 14, §
15355, subd. (b), italics added), not (as the majority apparently assumes) all
possible future projects. Under the majority’s newly minted rule, no project could
ever be approved in the Zone 40 area until the entire region’s projected long-term
water supply and demand are in balance.
This is essentially the rule that the Legislature considered—and rejected—
in amending the Water Code in 1995. The initial versions of Senate Bill No. 901,
which (among other things) added sections 10910-10915 to the Water Code,
directed the lead agency for a project EIR to request a water supply and demand
assessment from the appropriate public water system, and stated that the lead
agency “shall consider a project to have a significant effect on the environment” if,
based on that assessment, “water supplies are, or will be, insufficient to meet the
reasonable needs of the proposed project in addition to existing and planned future
uses.” (Sen. Bill No. 901 (1995-1996 Reg. Sess.) § 2, as amended July 5, 1995,
proposed Wat. Code, § 10915.) The bill as enacted, however, deleted the
requirement that the lead agency make a finding of a significant environmental
impact under such circumstances and directed the lead agency, if it determined
6
that water supplies will not be sufficient to meet existing and planned future uses,
instead simply to “include that determination in its findings.”2 (Sen. Bill No. 901
(1995-1996 Reg. Sess.) § 4, as amended Sept. 7, 1995; Stats. 1995, ch. 881, § 4, p.
6705, in Wat. Code, § 10911.) This sequence of events makes me confident that
the Legislature did not intend to require a project EIR to balance water supply with
water demand not only for the project itself but also for the entire region. (Cf.
Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532 [“ ‘Generally the Legislature’s
rejection of a specific provision which appeared in the original version of an act
supports the conclusion that the act should not be construed to include the omitted
provision’ ”]; accord, INS v. Cardoza-Fonseca (1987) 480 U.S. 421, 442-443
[“ ‘Few principles of statutory construction are more compelling than the
proposition that Congress does not intend sub silentio to enact statutory language
that it has earlier discarded in favor of other language’ ”].) The majority offers no
justification for effectively reinserting what the Legislature has rejected.
Indeed, the legislative history leading to the elimination of Senate Bill No.
901’s stricter requirement explains why this court ought not itself resurrect it. One
legislative analysis warned that the required finding of a significant environmental
impact due to an imbalance between water supply and demand on a regional basis
“could be a severe roadblock to housing development as it is the [Department of
Housing and Community Development]’s experience that many areas of the State
cannot demonstrate water supply availability for all potential development which
could be permitted under their general plan land use designations within the next
five years. Also, it would be infeasible for many cities or counties to demonstrate
water supply availability for all potential development over the 10 to 20 year
2
As the majority concedes, the County’s compliance with these Water Code
provisions is not at issue in this case. (Maj. opn., ante, at p. 20, fn. 8.)
7
timeframes of general plan updates.” (Dept. of Housing and Community
Development, analysis of Sen. Bill No. 901 (1995-1996 Reg. Sess.) Aug. 7, 1995,
p. 5.) The Department of Housing and Community Development’s analysis
further warned that “[w]here there may be an adequate water supply for a housing
project and the project may have no significant effect on the environment, but an
inadequate water supply exists for long term future uses, mitigation measures in
the form of fees are likely to be assessed to buy water or develop new supplies.
These are likely to significantly increase costs for new housing development.” (Id.
at p. 6.) Moreover, “[u]sing the complex and bureaucratic CEQA process to
assure local water planning is likely to result in significant administrative costs
which will, in every likelihood, be charged to new development because there is
no other pocket to pay.” (Id. at p. 8.) Finally, such an approach would supply
“new opportunities for court challenges of new housing and job-creating
development. From the perspective of possible environmental litigation, the bill
would create great uncertainty.” (Id. at p. 7.)3
I also find it interesting that neither plaintiffs nor the Attorney General as
amicus curiae, when offered the opportunity at oral argument to embrace the
majority’s new rule, chose to do so. Plaintiffs stated instead that “the EIR must
address the water supply essential for the scope of the project that is approved,”
not for the entire general plan. The Attorney General similarly explained that the
general rule under CEQA is that an agency must consider “all the significant
3
The Governor’s Office of Planning and Research also cautioned that an
early version of the bill made no provision for measures that may act to reduce
overall demand by requiring “new development to retrofit old, existing
development in order to free sufficient ‘wasted’ water to serve the new project.”
(Governor’s Off. of Planning and Research, analysis of Sen. Bill No. 901 (1995-
1996 Reg. Sess.) Apr. 3, 1995, p. 6.)
8
environmental impacts for the project that it is approving,” distinguishing the
SunRidge Specific Plan and Sunrise Douglas Community Plan from the entire
Zone 40 area, and that considering the entire general plan was thus “too far out
from where this court needs to go.”
By recognizing that CEQA does not require a project EIR to balance water
supply and demand on a regional basis, I do not intend to diminish the significance
of a finding in a project FEIR that projected supply will not be able to satisfy the
entirety of projected demand contemplated by a general plan. Obviously, if new
supplies are not found, then a decision to approve one project means that projects
proposed later in time may be unable to identify adequate water supplies and
therefore may not be built. If not all of the development contemplated by the
general plan can be built, cities and counties must ensure that the projects that are
approved are of the highest priority, in order to prevent the negative economic or
social effects from haphazard development. However, one must also remember
that “[e]conomic or social effects of a project shall not be treated as significant
effects on the environment” (CEQA Guidelines, tit. 14, § 15131, subd. (a)) and
therefore are beyond the scope of CEQA. Under the majority’s new rule,
however, once a city or county approves a general plan, it could not approve a
project in furtherance of that plan unless or until it had secured water sources for
build out of the entire general plan. Nothing in CEQA requires such a result.
(Atherton v. Board of Supervisors (1983) 146 Cal.App.3d 346, 351 [“where future
development is unspecified and uncertain, no purpose can be served by requiring
an EIR to engage in sheer speculation as to future environmental consequences”].)
It is no answer to suggest, as the majority does, that the FEIR for the
Sunrise Douglas Community Plan might have been adequate if it instead had
disclosed “concrete plans for new surface water diversion, treatment and
transmission facilities that would tend to tie the new water particularly to Sunrise
9
Douglas,” akin to those included in the SunRidge Specific Plan’s discussion of
water from the Well Field. (Maj. opn., ante, p. 38.) The majority seems to forget
that “[t]o interpret CEQA itself as requiring such firm assurances of future water
supplies at relatively early stages of the land use planning and approval process
would put CEQA in tension with . . . more specific water planning statutes.” (Maj.
opn., ante, at pp. 20-21.) Indeed, it is precisely because “full build out of the
Community Plan may take 15 or 20 years” (id. at pp. 37-38) that the analysis of
water supplies for the Community Plan did not need to be as detailed as the
analysis for water supplies for the Specific Plan, which would begin to draw water
“within about 18 months of project approval.” (Id. at p. 37.) The majority’s
insistence that the analysis of Zone 40 water supplies in the long-term must be as
concrete as that for the Well Field in the near-term completely inverts its earlier
assertion that “ ‘water supplies must be identified with more specificity at each
step as land use planning and water supply planning move forward from general
phases to more specific phases.’ ” (Id. at p. 20.)
The reader might likewise be forgiven for looking with skepticism at the
majority’s assurance that “CEQA does not necessarily require that an EIR show
that total water supply and demand are or will be in balance in an area,” inasmuch
as the majority elsewhere condemns this FEIR because it “could not demonstrate a
likelihood of adequate long-term supply for Sunrise Douglas without showing that
plans for the Zone 40 area call for at least a rough balance between water supply
and demand, a showing the FEIR fails to make.” (Compare maj. opn., ante, at p.
38 with id. at p. 39.) And if, as the majority belatedly states, it would be enough
for the FEIR, as to future water supplies needed for the project, to “include only
the public water system’s plans for acquiring the additional supplies, including
cost and time estimates and regulatory approvals the system anticipates needing”
(maj. opn., ante, at p. 20; see id. at p. 40), one wonders why the majority goes on
10
at length to discuss far more burdensome requirements—and what authority it has
to do so.
In sum, the majority’s insistence that the FEIR should have identified
sufficient water not merely for the project itself but also for all conceivable future
development in the region suffers from a number of serious defects. It is not
supported by any statute or guideline—or, indeed, by any party to this litigation.
It is inconsistent with the legislative history of Water Code section 10911. It is
inconsistent as well with the majority’s own analysis of the environmental effects
of drawing on this project’s near-term water supplies. And, as the Legislature
recognized in rejecting such an approach in 1995, it will discourage new housing
development, increase its cost, create uncertainty, and trigger more litigation. For
all these reasons, I respectfully dissent.
BAXTER, J.
11
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 127 Cal.App.4th 490
Rehearing Granted
__________________________________________________________________________________
Opinion No. S132972
Date Filed: February 1, 2007
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Raymond M. Cadei
__________________________________________________________________________________
Attorneys for Appellant:
Law Office of Stephan C. Volker, Stephan C. Volker, Joshua A. H. Harris, Marnie E. Riddle and Gretchen
E. Dent for Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Tom Greene, Chief
Assistant Attorney General, J. Matthew Rodriquez and Theodora Berger, Assistant Attorneys General,
Susan Durbin and Gordon Burns, Deputy Attorneys General, for The People of the State of California as
Amicus Curiae on behalf of Plaintiffs and Appellants.
Law Offices of Thomas N. Lippe and Thomas N. Lippe for California Oak Foundation as Amicus Curiae
on behalf of Plaintiffs and Appellants.
Rossmann and Moore, Antonio Rossmann, Robert B. Moore and David R. Owen for The Planning and
Conservation League as Amicus Curiae on behalf of Plaintiffs and Appellants.
Brandt-Hawley Law Group and Susan Brandt-Hawley for Stanislaus Natural Heritage Project as Amicus
Curiae on behalf of Plaintiffs and Appellants.
David P. Selmi; Chatten-Brown & Carstens, Jan Chatten-Brown and Douglas P. Carstens for
Environmental Defense Center, Santa Clarita Organization for Planning the Environment and Friends of
the Santa Clara River as Amici Curiae on behalf of Plaintiffs and Appellants.
Lawrence Bragman for City of Fairfax as Amicus Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Meyers, Nave, Riback, Silver & Wilson, Steven R. Meyers, Julia L. Bond and Andrea J. Saltzman for
Defendant and Respondent.
Page 2 – S132972 – counsel continued
Attorneys for Respondent:
Remy, Thomas, Moose and Manley, James G. Moose, Sabrina V. Teller, Meghan M. Habersack and
Megan M. Quinn for Real Parties in Interest and Respondents.
Morrison & Foerster, Michael H. Zischke, R. Clark Morrison and Scott B. Birkey for California State
Association of Counties and League of California Cities as Amici Curiae on behalf of Defendant and
Respondent.
Bingham McCutchen and Stephen L. Kostka for Building Industry Association for California, Consulting
Engineers and Land Surveyors of California, Building Industry Legal Defense Foundation, California
Business Properties Association and California Association of Realtors as Amici Curiae on behalf of
Defendant and Respondent and Real Parties in Interest and Respondents.
Downey Brand, Jennifer L. Harder and Scott L. Shapiro for North State Building Industry Association as
Amicus Curiae on behalf of Defendant and Respondent and Real Parties in Interest and Respondents.
Thomas Cumpston; Somach, Simmons & Dunn, Sandra K. Dunn and Jacqueline L. McDonald for El
Dorado Irrigation District as Amicus Curiae on behalf of Defendant and Respondent and Real Parties in
Interest and Respondents.
Bartkiewicz, Kronick & Shanahan, Ryan S. Bezerra, Paul M. Bartkiewicz and Joshua M. Horowitz for
Regional Water Authority as Amicus Curiae on behalf of Defendant and Respondent and Real Parties in
Interest and Respondents.
Robert A. Ryan, Jr., County Counsel (Sacramento) and Krista C. Whitman, Deputy County Counsel, for
County of Sacramento and Sacramento County Water Agency as Amici Curiae on behalf of Defendant and
Respondent and Real Parties in Interest and Respondents.
Kronick, Moskovitz, Tiedemann & Girard, Clifford W. Schulz; Best Best & Krieger and Roderick E.
Walston for Association of California Water Agencies and State Water Contractors as Amici Curiae on
behalf of Defendant and Respondent and Real Parties in Interest and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Stephan C. Volker
Law Offices of Stephan C. Volker
436 14th Street, Suite 1300
Oakland, CA 94612
(510) 496-0600
Bill Lockyer
Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-3081
Julia L. Bond
Meyers, Nave, Riback, Silver & Wilson
555 12th Street, Suite 500
Oakland, CA 94607
(510) 808-2000
James G. Moose
Remy, Thomas, Moose and Manley
455 Capitol Mall, Suite 210
Sacramento, CA 95814
(916) 443-2745
Opinion Information
| Date: | Docket Number: |
| Thu, 02/01/2007 | S132972 |
Parties
| 1 | Vineyard Area Citizens For Responsible Growth, Inc. (Plaintiff and Appellant) Represented by Stephan C. Volker Law Offices of Stephan C. Volker 436 Fourteenth Street, Suite #1300 Oakland, CA |
| 2 | Vineyard Area Citizens For Responsible Growth, Inc. (Plaintiff and Appellant) Represented by Joshua A. H. Harris Law Offices of Stephan C. Volker 436 Fourteenth Street, Suite #1300 Oakland, CA |
| 3 | Vineyard Area Citizens For Responsible Growth, Inc. (Plaintiff and Appellant) Represented by Marnie Erica Riddle Law Offices of Stephan C. Volker 436 Fourteenth Street, Suite #1300 Oakland, CA |
| 4 | City Of Rancho Cordova (Defendant and Respondent) Represented by Steven R. Meyers Meyers Nave Riback Silver & Wilson 555 Twelfth Street, Suite 1500 Oakland, CA |
| 5 | City Of Rancho Cordova (Defendant and Respondent) Represented by Julia Lynch Bond Meyers Nave Riback Silver & Wilson 555 Twelfth Street, Suite 1500 Oakland, CA |
| 6 | City Of Rancho Cordova (Defendant and Respondent) Represented by Andrea J. Saltzman Meyers Nave Riback Silver & Wilson 555 Twelfth Street, Suite 1500 Oakland, CA |
| 7 | Sunrise Douglas Property Owners Association (Real Party in Interest and Respondent) Represented by James Grether Moose Remy Thomas Moose & Manley, LLP 455 Capitol Mall, Suite 210 Sacramento, CA |
| 8 | Sunrise Douglas Property Owners Association (Real Party in Interest and Respondent) Represented by Sabrina Vansteenki Teller Remy Thomas Moose & Manley, LLP 455 Capitol Mall, Suite 210 Sacramento, CA |
| 9 | Shute Mihaly & Weinberger Llp (Pub/Depublication Requestor) Represented by Robert Steven Perlmutter Shute Mihaly & Weinberger 396 Hayes Street San Francisco, CA |
| 10 | Association Of California Water Agencies (Amicus curiae) Represented by Roderick Walston Best Best & Krieger, LLP 2001 N. Main Street, Suite 390 Walnut Creek, CA |
| 11 | Association Of California Water Agencies (Amicus curiae) Represented by Clifford W. Schulz Kronick Moskovitz et al. 400 Capital Mall, 27th Floor Sacramento, CA |
| 12 | County Of Sacramento (Amicus curiae) Represented by Krista Castlebary Whitman Office of the County Counsel 700 "H" Street, Suite 2650 Sacramento, CA |
| 13 | Sacramento County Water Agency (Amicus curiae) Represented by Krista Castlebary Whitman Office of the County Counsel 700 "H" Street, Suite 2650 Sacramento, CA |
| 14 | Building Industry Association Of California (Amicus curiae) Represented by Stephen L. Kostka Bingham McCutchen, LLP P.O. Box V Walnut Creek, CA |
| 15 | Environmental Defense Center (Amicus curiae) Represented by Jan Chatten-Brown Chatten-Brown & Carstens 3250 Ocean Park Boulevard, Suite 300 Santa Monica, CA |
| 16 | Environmental Defense Center (Amicus curiae) Represented by Douglas Philip Carstens Chatten-Brown & Carstens 3250 Ocean Park Boulevard, Suite 300 Santa Monica, CA |
| 17 | Environmental Defense Center (Amicus curiae) Represented by Daniel P. Selmi Loyola Law School 919 S. Albany Street Los Angeles, CA |
| 18 | Friends Of The Santa Clara River (Amicus curiae) Represented by Douglas Philip Carstens Chatten-Brown & Carstens 3250 Ocean Park Boulevard, Suite 300 Santa Monica, CA |
| 19 | California Water Agencies (Amicus curiae) Represented by Clifford W. Schulz Kronick Moskovitz et al. 400 Capital Mall, 27th Floor Sacramento, CA |
| 20 | State Water Contractors (Amicus curiae) Represented by Roderick Walston Best Best & Krieger, LLP 2001 N. Main Street, Suite 390 Walnut Creek, DC |
| 21 | State Water Contractors (Amicus curiae) Represented by Clifford W. Schulz Kronick Moskovitz et al. 400 Capital Mall, 27th Floor Sacramento, CA |
| 22 | North State Building Industry Association (Amicus curiae) Represented by Jennifer Lee Harder Downey Brand, LLP 555 Capitol Mall, Suite 1000 Sacramento, CA |
| 23 | North State Building Industry Association (Amicus curiae) Represented by Scott Lewis Shapiro Downey Brand, LLP 555 Capitol Mall, Suite 1000 Sacramento, CA |
| 24 | El Dorado Irrigation District (Amicus curiae) Represented by Jacqueline Leigh Mcdonald Somach Simmons & Dunn 813 Sixth Street, 3rd Floor Sacramento, CA |
| 25 | El Dorado Irrigation District (Amicus curiae) Represented by Thomas D. Cumpston El Dorado Irrigation District 2890 Mosquito Road Placerville, CA |
| 26 | El Dorado Irrigation District (Amicus curiae) Represented by Sandra K. Dunn Somach Simmons & Dunn 813 Sixth Street, 3rd Floor Sacramento, CA |
| 27 | Planning & Conservation League (Amicus curiae) Represented by Antonio Rossmann Attorney at Law 380 Hayes Street San Francisco, CA |
| 28 | California Oak Foundation (Amicus curiae) Represented by Thomas N. Lippe Attorney at Law 329 Bryant Street, Suite 3-D San Francisco, CA |
| 29 | Lockyer, Bill (Amicus curiae) Represented by Gordon B. Burns Office of the Attorney General P.O. Box 944255 Sacramento, CA |
| 30 | Stanislaus Natural Heritage Project (Amicus curiae) Represented by Susan Brandt-Hawley Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen, CA |
| 31 | California State Association Of Counties (Amicus curiae) Represented by Michael Zischke Morrison & Foerster, LLP 425 Market Street San Francisco, CA |
| 32 | California State Association Of Counties (Amicus curiae) Represented by Scott Benjamin Birkey Morrison & Foerster, LLP 425 Market Street San Francisco, CA |
| 33 | California State Association Of Counties (Amicus curiae) Represented by Randall Clark Morrison Morrison & Foerster, LLP 101 Ygnacio Valley Road, Suite 450 Walnut Creek, CA |
| 34 | Building Industry Legal Defense Foundation (Amicus curiae) Represented by Stephen L. Kostka Bingham McCutchen, LLP P.O. Box V Walnut Creek, CA |
| 35 | City Of Fairfax (Amicus curiae) Represented by Lawrence W. Bragman Attorney at Law 912 Lootens Place, 2nd Floor San Rafael, CA |
| Disposition | |
| Feb 1 2007 | Opinion: Reversed |
| Dockets | |
| Apr 12 2005 | Request for depublication (petition for review pending) filed by Shute, Mihaly & Weinberger LLP (non-party) |
| Apr 12 2005 | Petition for review filed by plaintiffs and appellants (Vineyard Area Citizens for Responsible Growth, Inc., et al.) [Third District Court of Appeal ordered opinion certified for publication on 3-10-2005] |
| Apr 12 2005 | Record requested |
| Apr 13 2005 | Answer to petition for review filed by counsel for RPIS Sunrise Douglas Property Owners and Respondent City of Rancho Cordova |
| Apr 13 2005 | Received Court of Appeal record one doghouse |
| Apr 21 2005 | Opposition filed by Resps and RPIS Sunrise Douglas Property Owners Association et al. to depub requests. |
| Apr 26 2005 | Opposition filed by Bingham McCutchen on behal of the Home Builders Association of Northern California to depub request by Shute, et al. |
| Apr 26 2005 | Request for depublication filed (another request pending) by Planning and Conservation League (non-party) |
| Apr 27 2005 | Reply to answer to petition filed CRC 40.1(b) |
| May 20 2005 | Received: Letter darted 5-18-2005 from the Marin Audubon Society requesting depublication. |
| May 25 2005 | Note: requested remaining part of the record. |
| Jun 8 2005 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Werdegar, Brown, and Moreno, JJ. |
| Jun 10 2005 | Note: Grant letter processed/mailed |
| Jun 14 2005 | Certification of interested entities or persons filed by appellant's (Vineyard Area Citizens, et al.) counsel. |
| Jun 21 2005 | Certification of interested entities or persons filed by Respondent (City of Rancho Cordova) by counsel. |
| Jun 23 2005 | Certification of interested entities or persons filed Real Parties in Interest and Respondents (Sunrise Douglas Property Owners et al.) by counsel. |
| Jun 23 2005 | Request for extension of time filed Appellants (Vineyard). To file opening brief on the merits. Asking until August 7, 2005. |
| Jun 28 2005 | Extension of time granted to and including August 7, 2005 to serve and file Appellant's Opening Brief. |
| Jul 6 2005 | Request for extension of time filed by RPI (Sunrise) and Respondent (City of Rancho Cordova) requesting extension to Sept. 28, 2005 to file answer brief on the merits. |
| Jul 11 2005 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 28, 2005. |
| Aug 10 2005 | Received: (1) Appellant's application to file opening brief on the merits exceeding rule 29.1(c)(1) length limitation [ 16,097 total words or 2,097 words over the 14,000 word limit ] (2) Excerpts of Administrative Record cited in opening brief on the merits (O+1) Documents received under CRC rule 40.1(b) |
| Aug 16 2005 | Order filed The application of appellants for permission to file opening brief on the merits containing 16,097 words that exceeds the 14,000 word limit prescribed by California Rules of Court rule 29.1(c)(1) by 2,,097 words is hereby GRANTED. |
| Aug 16 2005 | Opening brief on the merits filed by appellants |
| Aug 16 2005 | Lodged: Appellants Excerpts of Administrative Record Cited in Opening Brief on the Merits. (O+1) |
| Sep 27 2005 | Application to file over-length brief filed by counsel for respondent (City of Rancho Cordova) |
| Sep 27 2005 | Answer brief on the merits filed with permission |
| Sep 27 2005 | Received: Respondent's "Excerpts of Administrative Record cited in Respondent's Answer Brief on the Merits" |
| Sep 28 2005 | Application to file over-length brief filed Answer Brief on the Merits by counsel for RPIs {Sunrise Douglas Property Owners Association et al.,} |
| Oct 3 2005 | Answer brief on the merits filed By counsel for RPIs {Sunrise Douglas Property Owners Assn., et al.,} Filed w/ permission. |
| Oct 3 2005 | Lodged: Excerpts of Administrative Record Cited in Answer Brief on the Merits filed by RPIs. |
| Oct 3 2005 | Request for extension of time filed By counsel for appellants requesting a 30-day extension to and including November 17, 2005 to file Appellant's Reply Brief on the Merits. |
| Oct 4 2005 | Opposition filed by Respondent and RPI to Applt's request for extension of time to file the reply brief. |
| Oct 7 2005 | Extension of time granted To October 25, 2005 to file Appellants' reply brief on the merits. No further extensions are contemplated. |
| Oct 28 2005 | Application filed to: file appellant's reply brief on the merits containing 12,556 words, or 8,356 words, exceeding the 4200 length limitation, as prescribed by CRC 29.1(c)(1). |
| Oct 31 2005 | Order filed The application of appellants for permission to file reply brief on the merits containing 12,556 words, that exceeds the 4200 word limit prescribed by California Rules of Court rule 29.1(c)(1) by 8,356 words is herey GRANTED. |
| Oct 31 2005 | Reply brief filed (case fully briefed) Appellants |
| Nov 22 2005 | Received application to file Amicus Curiae Brief Regional Water Authority in support of Respondent and Real Parties in Interest. |
| Nov 22 2005 | Received application to file Amicus Curiae Brief and brief (separate) by attorneys for Association of California Water Agencies and State Water Contractors in support of respondents |
| Nov 23 2005 | Received application to file Amicus Curiae Brief and brief (seperate) by attorneys for the County of Sacramento and Sacramento County Water Agency in support of respondents and real parties in interest |
| Nov 23 2005 | Received application to file Amicus Curiae Brief California State Association of Counties and League of California Cities. |
| Nov 28 2005 | Received application to file Amicus Curiae Brief and brief of North State Building Industry Association in support of real parties and respondents. (Received in Sacramento) |
| Nov 28 2005 | Received application to file Amicus Curiae Brief and brief of El Dorado Irrigation District in support of respondents and real parties (City of Rancho Cordova et al.) [ Received in Sacramento ] |
| Nov 29 2005 | Permission to file amicus curiae brief granted for the County of Sacramento and Sacramento County Water Agency in support of respondents and real parties in interest |
| Nov 29 2005 | Amicus curiae brief filed By attorneys for the County of Sacramento and Sacramento County Water Agency in support of respondents and real parties in interest |
| Nov 29 2005 | Received application to file Amicus Curiae Brief and brief of California Building Industry association and Consulting Engineers and Land Surveyors of California in support of respondents |
| Nov 30 2005 | Received application to file Amicus Curiae Brief and brief of Planning and Conservation League in support of appellants |
| Nov 30 2005 | Amicus curiae brief filed Bill Lockyer, ex rel. Attorney General, for People of the State of California in support of appellants. (Received in Sacramento) Received separately "Excerpts of Administrative Record Cited in State of California's Amicus Curiae Briefs" (O+14) |
| Nov 30 2005 | Permission to file amicus curiae brief granted The application of Association of California Water Agencies and State Water Contractors for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Nov 30 2005 | Amicus curiae brief filed Association of California Water Agencies and State Water Contractors in support of respondents. |
| Nov 30 2005 | Received application to file Amicus Curiae Brief and brief of Environmental Defense Center, Santa Clarita Organization for Planning the Environment and Friends of the Santa Clara River |
| Nov 30 2005 | Received application to file Amicus Curiae Brief and Joinder of Building Industry Legal Defense Foundation, California Business Properties Association and California Association of Realtors in the Amicus Curiae Brief by California Building Industry Association and the Consulting Engineers and Land Surveyors of California in support of respondents. |
| Dec 1 2005 | Received application to file Amicus Curiae Brief and brief of Stanislaus Natural Heritage Project [ Received at the front counter one day late ] |
| Dec 1 2005 | Received application to file Amicus Curiae Brief and brief of California Oak Foundation in support of appellants [CRC 40.1(b)] |
| Dec 8 2005 | Permission to file amicus curiae brief granted On application of Regional Water Authority for permission to file an amicus curiae brief in support of respondent and real parties is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed Regional Water Authority in support of respondent and real parties in interest. |
| Dec 8 2005 | Request for judicial notice filed (granted case) by Amicus Regional Water Authority |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed California State Association of Counties and League of California Cities in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Request for judicial notice filed (granted case) by Amici Curiae California State Association of Counties and League of California Cities |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of El Dorado Irrigation District for permission to file an amicus curiae brief in support of Respondents City of Rancho Cordova et al. is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed El Dorado Irrigation District in support of Respondents City of Rancho Cordova et al. |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of North State Building Industry Association for permission to file an amicus curiae brief in support of real parties and respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed North State Industry Association in support of real parties and respondents |
| Dec 8 2005 | Permission to file amicus curiae brief granted California Building Industry Association and Consulting Engineers and Surveyors for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed California Building Industry Association and Consulting Engineers and Land Surveyors in support of respondents. |
| Dec 8 2005 | Order filed The application and Joinder of Building Industry Legal Defense Foundation, California Business Properties Association, and California Association of Realtors to join in the Amicus Curiae Brief by California Building Industry Association and the Consulting Engineers And Land Surveyors of California in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed Joinder (ONLY) of Building Industry Legal Defense Foundation, et al. to Amici Brief of California Building Industry Association and the Consulting Engineers and Land Surveyors of California, in support of respondents. |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of Planning and Conservation League for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed Planning and Conservation League in support of appellants. |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of Environmental Defense Center, Santa Clarita Organization for Planning the Environment and Friends of the Santa Clara River for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed Environmental Defense Center, Santa Clarita Organization for Planning the Environment and Friends of the Santa Clara River in support of appellants. |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of Stanislaus Natural Heritage Project for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed Stanislaus Natural Heritage Project in support of appellants. |
| Dec 8 2005 | Permission to file amicus curiae brief granted The application of California Oak Foundation for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 8 2005 | Amicus curiae brief filed California Oak Foundation in support of appellants. |
| Dec 12 2005 | Received application to file Amicus Curiae Brief City of Fairfax in support of petitioners |
| Dec 13 2005 | Request for extension of time filed Parties' Joint Stipulation to January 11, 2006 to file answers to all amici curiae briefs. |
| Dec 15 2005 | Permission to file amicus curiae brief granted The application of City of Fairfax for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 15 2005 | Amicus curiae brief filed City of Fairfax in support of petitioners. |
| Dec 16 2005 | Extension of time granted On joint application of counsel for all parties, and good cause appearing, it is ordered that the time to serve and file each parties' answers to all amici curiae briefs is hereby extended to and including January 11, 2006. |
| Jan 11 2006 | Response to amicus curiae brief filed City of Rancho Cordova, Respondent Julia Bond, Counsel Sunrise Douglas Property Owners Association et al., RPIs James Moose, Counsel joint response to AC Brief filed by Environmental Defense Center et al., Filed in Sacramento. |
| Jan 11 2006 | Response to amicus curiae brief filed City of Rancho Cordova, Respondent By Julia Bond, Counsel Sunrise Douglas Property Owners Assn., RPIs by James Moose, Counsel joint response to AC brief filed by Planning and Conservation League. Filed in Sacramento |
| Jan 11 2006 | Response to amicus curiae brief filed City of Rancho Cordova, respondent Julia Bond, counsel Sunrise Douglas Property Owners Assn., RPIs and respondents James Moose, counsel Joint response to a/c briefs of Calif. Oak Foundation and City of Fairfax |
| Jan 11 2006 | Response to amicus curiae brief filed City of Rancho Cordova, respondent Julia Bond, counsel Sunrise Douglas Property Owners Assn., RPIs and respondents James Moose, counsel Joint response to the a/c brief of the Attorney General |
| Jan 11 2006 | Response to amicus curiae brief filed City of Rancho Cordova, respondent Julia Bond, counsel Sunrise Douglas Property Owners Assn., RPIs and respondents James Moose, counsel Joint response to a/c brief of Stanislaus Natural Heritage Project |
| Jan 11 2006 | Request for judicial notice filed (granted case) City of Rancho Cordova, defendant and respondent Julia Bond, counsel Sunrise Douglas Property Owners Assn, RPIs and respondents James Moose, counsel In support of joint answers to a/c briefs. Two volumes of exhibits submitted herewith |
| Jan 13 2006 | Response to amicus curiae brief filed Vineyard Area Citizens for Responsible Growth et a., Appellants / CRC 40.1(b) by Stephan C. Volker, counsel |
| Jan 25 2006 | Request for extension of time filed for a 7-day extension to February 7, 2006, to file appellants' opposition to respondents' and real parties' Motion for Judicial Notice. |
| Jan 26 2006 | Extension of time granted On application of appellants for a 7-day extension of time, and good cause appearing, it is ordered that the tme to serve and file Appellants' Opposition to Motion for Judicial Notice is extended to and including February 7, 2006. |
| Feb 7 2006 | Opposition filed Appellants' Opposition to Respondents' and Real Parties' Motion Requesting Judicial Notice |
| Feb 7 2006 | Motion filed (non-AA) Appellants' Motion to Strike Sections of Respondent's and Real Parties' Briefs Answering Amici Curiae Briefs in Support of appellants. |
| Feb 22 2006 | Received: Respondent's and Real Parties' Application for Leave to Reply to Appellants' Opposition and Respondent's and Real Parties' Request for Judicial Notice; Respondent's and Real Parties' Reply Brief (attached) |
| Feb 22 2006 | Opposition filed Respondent's and Real Parties' Opposition to Petitioners' Motion to Strike |
| Feb 28 2006 | Order filed Respondent's (City of Rancho Cordova) and Real Parties' (Sunrise Douglas Property Owners Association et al.) application for leave to file a Reply Brief to Appellants' Opposition to Respondents's Request for Judicial Notice is hereby Granted. |
| Feb 28 2006 | Filed: Respondent and Real Parties' Reply Brief to Appellants' Opposition to Respondents' Request for Judicial Notice |
| Mar 6 2006 | Filed: Petitioner's Reply to Respondent's and Real Parties' Opposition to Petitioners' Motion to Strike; Petitioners' Reply Brief. [ with permission ] |
| Sep 26 2006 | Order filed Appellants' motion to strike portions of Rspondent's and Real Parties in Interest's briefs answering briefs of amici curiae, filed on February 7, 2006, is denied. |
| Sep 26 2006 | Order filed Respondent's and Real Parties in Interest's request for judicial notice, filed on January 1, 2006, is denied. |
| Oct 3 2006 | Case ordered on calendar November 7, 2006 at 9:00 am in Sacramento |
| Oct 13 2006 | Filed letter from: James G. Moose, counsel for real parties in interest, requesting permission to divide oral argument time (giving 10 minutes with counsel for respondent City of Rancho Cordova). |
| Oct 17 2006 | Order filed The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request to allocate to respondents Sunrise Property Owners Association et al., 20 minutes, and respondent City of Rancho Cordova, 10 minutes, of respondents' 30-minute allotted time is granted. |
| Oct 19 2006 | Filed letter from: Gordon Burns, counsel for amicus Bill Lockyer, requesting permission to divide appellants oral argument time (20 minutes to appellants Vineyard Area Citizens etc., et al.; 10 minutes to amicus). |
| Oct 20 2006 | Order filed The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to amicus curiae Bill Lockyer, Attorney General, ten minutes of appellants' 30-minute allotted time for oral argument is granted. |
| Oct 27 2006 | Request for Extended Media coverage Filed by Courtroom View Network Internet. |
| Nov 1 2006 | Request for extended media coverage denied Courtroom View Network's request to photograph, record or broadcast, filed October 27, 2006, is denied. (Cal. Rules of Court, rule 980, subs. (b)(2), (e)(3)(b).) |
| Nov 7 2006 | Cause argued and submitted |
| Nov 20 2006 | Received: Letter, dated 11-17-06 Sunrise Douglas Property Owners Assn., et al., respondents and RPIs |
| Jan 31 2007 | Notice of forthcoming opinion posted |
| Feb 1 2007 | Opinion filed: Judgment reversed and the matter is remanded to that court for further proceedings consistent with this opinion. Opinion by Werdegar, J. ----joined by George, C.J., Kennard, Chin, Moreno, & Corrigan, JJ. Concurring and Dissenting Opinion by Baxter, J. |
| Feb 16 2007 | Rehearing petition filed Respondent City of Rancho Cordova and Real Parties Sunrise Douglas Property Owners Association et al. by Steven R. Meyers of Meyers, Nave et al. and James G. Moose of Remy, Thomas et al. |
| Feb 16 2007 | Rehearing petition filed Vineyard Area Citizens for Responsible Growth, et al., plaintiffs and appellants by Stephan C. Volker, retained counsel |
| Feb 21 2007 | Time extended to consider modification or rehearing to and including May 2, 2007 |
| Feb 26 2007 | Answer to rehearing petition filed Petitioners Vineyard Area Citizens for Responsible Growth et al. by Law Offices of Stephan C. Volker, retained. |
| Mar 1 2007 | Application filed to: File Respondents' and Real Parties' Late Answer to Petition for Rehearing by Julia L. Bond of Meyers, Nave et al. and by James G. Moose of Remy, Thomas et al., retained. Answer to Rehearing submitted separately. |
| Mar 5 2007 | Answer to rehearing petition filed Real Parties and Respondent City of Rancho Cordova and Sunrise Douglas Property Owners Association et al. [Filed with permission/Late] |
| Mar 9 2007 | Application filed to: File Petitioner's Reply in Support of Petition for Rehearing [ Petitioner's reply submitted separately (O+13)) |
| Mar 14 2007 | Application filed to: for leave to file a reply in support of respondent's and RPIs' petition for rehearing City of Rancho Cordova, respondent Steven Meyers, counsel Sunrise Douglas Property Owners Assn., RPIs & Resps. James Moose, counsel |
| Mar 19 2007 | Order filed The application of appellants Vineyard Area Citizens for Responsible Growth et al., for permission to leave to file appellants' reply to answer to petition for rehearing is hereby denied. |
| Mar 29 2007 | Order filed The application for permission to file respondents and real parties in interest's reply to answer to rehearing is hereby denied. |
| Apr 18 2007 | Rehearing denied The opinion is modified. George, C.J., was absent and did not participate. Baxter, J., is of the opinion the petition should be granted. |
| Apr 18 2007 | Opinion modified - no change in judgment |
| Apr 18 2007 | Remittitur issued (civil case) |
| Apr 24 2007 | Received: Acknowledgment of receipt for remittitur from Third Appellate District Court of Appeal |
| Nov 20 2007 | Returned record 19- Adminiisatrative Records, Wednesday,11/21/07 via UPS Ground. |
| Briefs | |
| Aug 16 2005 | Opening brief on the merits filed |
| Sep 27 2005 | Answer brief on the merits filed |
| Oct 3 2005 | Answer brief on the merits filed |
| Oct 31 2005 | Reply brief filed (case fully briefed) |
| Nov 29 2005 | Amicus curiae brief filed |
| Nov 30 2005 | Amicus curiae brief filed |
| Nov 30 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 8 2005 | Amicus curiae brief filed |
| Dec 15 2005 | Amicus curiae brief filed |
| Jan 11 2006 | Response to amicus curiae brief filed |
| Jan 11 2006 | Response to amicus curiae brief filed |
| Jan 11 2006 | Response to amicus curiae brief filed |
| Jan 11 2006 | Response to amicus curiae brief filed |
| Jan 11 2006 | Response to amicus curiae brief filed |
| Jan 13 2006 | Response to amicus curiae brief filed |
