WERDEGAR, J.
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 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, 38 Cal.Rptr.2d 139, 888 P.2d 1268.)
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, 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 Sun-Ridge 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
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 EIR
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 allocation referred to in the FEIR and by the parties as Fazio water) and is negotiating or exploring other surface water diversion rights.
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 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.
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
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 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,
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, § 21168.5.)
An appellate court's review of the administrative record for legal error and
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 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
Neither CEQA itself, nor the CEQA Guidelines,
In Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 173 Cal.Rptr. 602, 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, 173 Cal.Rptr. 602.) 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, 173 Cal.Rptr. 602), 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, 55 Cal.Rptr.2d 625 (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, 55 Cal.Rptr.2d 625.) Although the EIR listed several possible sources of long-term water supply (id. at p. 194, 55 Cal.Rptr.2d 625), 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, 55 Cal.Rptr.2d 625.)
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.
In Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, 131 Cal.Rptr.2d 186 (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 water rights from another agency. (Id. at pp. 718-719, 131 Cal.Rptr.2d 186.) 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, 100 Cal.Rptr.2d 173), 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, 131 Cal.Rptr.2d 186; see also California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219, 1238-1239, 1244, 35 Cal.Rptr.3d 434 (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, 110 Cal.Rptr.2d 579 (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, 110 Cal.Rptr.2d 579.) The appellate court held the EIR inadequate for not disclosing possible
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, 173 Cal.Rptr. 602.)
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, 131 Cal.Rptr.2d 186.) 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 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.
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 decision-making under CEQA. (Santa Clarita, supra, 106 Cal.App.4th at pp. 720-723, 131 Cal.Rptr.2d 186.) An EIR for a 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, 35 Cal.Rptr.3d 434.)
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, 110 Cal.Rptr.2d 579.) 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. 374,110 Cal.Rptr.2d 579.)
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, 91 Cal.Rptr.2d 66 [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].)
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.2005) 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
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 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).)
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 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
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 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 enforcing] all legislatively mandated CEQA requirements" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564, 276 Cal.Rptr. 410, 801 P.2d 1161), 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, 253 Cal.Rptr. 426, 764 P.2d 278.)
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 example, where an agency failed to require an applicant
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 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.
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
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 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, 55 Cal.Rptr.2d 625, nor relied upon demonstrably illusory supplies, as in Santa Clarita, supra, 106 Cal.App.4th 715, 131 Cal.Rptr.2d 186, and California Oak, supra, 133 Cal.App.4th 1219, 35 Cal.Rptr.3d 434. 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
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 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
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]; 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.
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 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,
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 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, 131 Cal.Rptr.2d 186.)
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, 131 Cal.Rptr.2d 186; 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 project.
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.
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 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 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
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. 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.)
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, 55 Cal.Rptr.2d 625.) A provision like WS-1 could serve to supplement an EIR's 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,
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, 53 Cal.Rptr.3d at pp. 851, 852, 150 P.3d at p. 734.) 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 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, 53 Cal.Rptr.3d at p. 839, 150 P.3d at p. 724), 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.
(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
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, 53 Cal.Rptr.3d at p. 852, 150 P.3d at p. 735.) 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, 53 Cal.Rptr.3d at pp. 839-840, 150 P.3d at pp. 724-725 [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 disclosing the uncertainty, the other possible outcomes, their impacts and appropriate mitigation measures. (See ante, 53 Cal.Rptr.3d at pp. 836-837, 150 P.3d at p. 722.)
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
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, 26 Cal.Rptr.2d 231, 864 P.2d 502, 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, 26 Cal.Rptr.2d 231, 864 P.2d 502.) 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, 26 Cal.Rptr.2d 231, 864 P.2d 502.)
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 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.
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 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 hydrologieal connection to the lower aquifer ("to the east of Dillard Road and to the west of Twin Cities Road").'
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, 26 Cal.Rptr.2d 231, 864 P.2d 502) in the CEQA discussion. (See CEQA Guidelines, Cal.Code 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
Conclusion
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings consistent with this opinion.
WE CONCUR: GEORGE, C.J., KENNARD, CHIN, MORENO and CORRIGAN, JJ.
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, 53 Cal.Rptr.3d at p. 838, 150 P.3d at p. 723), 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. 53 Cal.Rptr.3d at p. 839, 150 P.3d at p. 724). 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. 53 Cal.Rptr.3d at p. 839, 150 P.3d at p. 724.) Indeed, as the majority subsequently explains, there is more than enough water that can be drawn from the Well Field to satisfy this project's near-term demand even after one subtracts the expected demand for "already entitled development." (Id. 53 Cal.Rptr.3d at p. 839, 150 P.3d at p. 724, 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, 53 Cal.Rptr.3d at pp. 836-837, 150 P.3d at p. 722.) The requisite level of specificity in identifying water supplies thus increases "`at each step as land use planning and water supply planning move
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 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, 53 Cal.Rptr.3d at p. 840, 150 P.3d at p. 725.) 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, 53 Cal.Rptr.3d at p. 828, 150 P.3d at p. 715.)
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 planned new surface water supplies will be developed and made
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 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.
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, 53 Cal. Rptr.3d at p. 842, 150 P.3d at p. 727, 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 that water supplies will not be sufficient to meet existing and planned future uses, instead simply to "include that determination in its findings."
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] 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 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.)
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 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
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 Douglas," akin to those included in the SunRidge Specific Plan's discussion of water from the Well Field. (Maj. opn., ante, 53 Cal.Rptr.3d at p. 846. 150 P.3d at p. 730.) 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, 53 Cal.Rptr.3d at pp. 836-837, 150 P.3d at pp. 721-722.) Indeed, it is precisely because "full build out of the Community Plan may take 15 or 20 years" (id. 53 Cal.Kptr.3d at pp. 845-846, 150 P.3d at pp. 729-730) 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. 53 Cal.Rptr.3d at p. 846, 150 P.3d at p. 730.) 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. 53 Cal.Rptr.3d at p. 836, 150 P.3d at p. 722.)
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, 53 Cal. Rptr.3d at p. 846, 150 P.3d at p. 730 with id. 53 Cal.Rptr.3d at pp. 846-847, 150 P.3d
In sum, the majority's insistence that the FEIR should have identified sufficient water not merely early 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.
FootNotes
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.
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