e-Bulletin: Court Clarifies Water Supply Documentation Issue Under CEQA

In Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 2005 Cal.App.LEXIS 349, the Court explained that water supplies that are available, but not yet developed, may be sufficient to satisfy CEQA documentation requirements regarding project water supplies, provided local land use/water supply agencies actually identify in substantial detail how the water will be developed and evaluate the associated environmental impacts.  Court of Appeal decisions from 2003 and 2004 rejecting reliance upon “speculative” water supplies had caused great concern among land use agencies and developers.

The Rancho Cordova case involved the potential development of 22,500 homes and some commercial uses on 6,015 acres within the City of Rancho Cordova.  The project and its EIR were delayed for several years because its original water supply plans, which heavily relied upon local groundwater supplies to serve the development, had to be substantially reworked after the discovery of groundwater contamination in the area.  During the interim period, the Sacramento County Water Agency prepared a very detailed “Zone 40” plan that addressed the region’s future water supply needs.  In brief, Zone 40 promised to increase regional water supplies by providing for the conjunctive use of ground and surface water through additional supplies to be developed using local development impact fees.

In approving the EIR for the project, Sacramento County (succeeded by the newly formed City of Rancho Cordova) noted that already available local groundwater would be used to supply water to the project in the short term and that water supplies set forth in the Zone 40 plan would provide for the long-term supply.  In addition, the City included caps that would limit future development on the project site to the amount of water actually available at the time of construction.  The City also provided criteria to identify when existing groundwater supplies were being overtaxed.  Nevertheless, a community group challenged the EIR, alleging, among other things, that its discussion of water supply issues was insufficient.

The Court of Appeal upheld the EIR's reliance on the previously approved Zone 40 plan for development of future water supplies to serve the project.  In prior decisions, several Courts of Appeal had rejected EIRs on the basis that a specific water supply had not been identified and, thus, it was not possible to assess the project's water supply impacts or to weigh the feasibility of alternatives.  However, the Third District Court of Appeal in Sacramento held that a water supply is not “speculative” merely because it is not yet developed.   The Court placed great weight on the fact that the EIR identified specific water supplies for future development and these options had undergone separate environmental review as part of the Zone 40 regional plan.

In addition to the substantive ruling on water supplies, the Rancho Cordova decision also provides a powerful new precedent for those seeking to defend a CEQA action at the appellate level.  The Court rejected the appellants’ claims because the statement of facts in their brief misstated the record and because the appellants failed to show (or even address) how the trial court’s opinion had erred.