e-Bulletin: Supreme Court Modifies Vineyard Opinion

The Supreme Court of California recently issued a modification to the language of its opinion in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 Cal. 4th 412 (2007). In Vineyard, the Court addressed the question of “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.” This case arose in the context of the planned development of 22,000 units of residential housing, schools, parks, and offices on 6,600 acres of rural land in eastern Sacramento County. The Court ruled that the project's long-term water supply analysis was inadequate because it did not analyze the region's long-term water supply and demand, and so did not justify with substantial evidence its conclusion that there would be sufficient water to meet the project's long-term needs.

In the modification of its earlier opinion, the Court identified four textual changes. First, and most importantly, the Court made a subtle change in the opinion that somewhat elevates the level of uncertainty that can be tolerated in an EIR's analysis of future water availability. Before this modification, agencies were required to discuss "possible replacement sources or alternatives to use of the anticipated water, and of the environmental consequences of those contingencies" if there was "some uncertainty" regarding "actual availability" of future water sources identified in an EIR. As modified, the Court requires this identification and analysis of possible replacement sources or alternatives only if "despite a full discussion, it is impossible to confidently determine that anticipated future water sources will be available."

In addition to two other minor textual changes that do not appear to have jurisprudential significance, the Court stated that the following language was changed from its original Vineyard opinion:

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.

This text does not appear to change the original opinion's language. We will issue an updated e-Bulletin when the Court clarifies this ambiguity. It also appears that, by modifying the opinion, the Court has denied the petition for rehearing at this time."

It is important to note that the Court's opinion modification did not alter its approval of Water Code sections 10910 to 10912 and Government Code 66473.7. These statutes recognize that descriptions of future water supplies in water supply assessments prepared by public water systems must include only a public water system's "plans for acquiring the additional supplies, including cost and time estimates and regulatory approvals the system anticipates needing." Since "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," CEQA cannot require firm water supply assurances at early planning stages. " 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 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." (Vineyard, supra, 40 Cal. 4th at 433-434.)

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For more details regarding the impact of Vineyard on water supply analysis and compliance with the California Environmental Quality Act, please contact an attorney with Best Best & Krieger's Natural Resources Practice Group.

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