Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (Vineyard) turns up the heat on the vexing question of how future water supply for proposed projects must be analyzed under the California
Environmental Quality Act (CEQA). Appellate courts recently had produced numerous and sometimes conflicting rulings regarding
future water supply analysis under CEQA; Vineyard marks the first time the California Supreme Court has weighed in. Unfortunately, while the Court’s opinion provides some
clarity, it also muddies the waters in other respects.
The central issue in this debate and in Vineyard is how clearly future water supplies for a proposed project must be identified and assured in an environmental impact report
(EIR) for a development project or land use plan – or, conversely, what level of uncertainty regarding the availability of
water supplies is acceptable.
At issue in Vineyard was the sufficiency of the water supply analysis contained in an EIR prepared for the Sunrise Douglas development project,
a multi-phased 6,015-acre mixed-use project with 22,500 homes, with a nearly 20 year buildout horizon, located within the
City of Rancho Cordova. The EIR’s water supply analysis identified near-term supplies sufficient to serve the first phase
of the project, as well as potential long-term water supplies for the later phases. Project opponents alleged various deficiencies in the analysis of both the
near- and long-term water supplies, claiming that the EIR failed to demonstrate with sufficient certainty that water will
be available for the project. As described more fully below, the Court found that the analysis of near term water supplies
was sufficient, but the EIR failed to adequately analyze long-term water supply and the environmental effects of potential
sources for long-term provision of water.
Principles Governing CEQA Water Supply Analysis
Before the Court examined the facts of the case, it reviewed prior case law and set forth several rules governing water supply
analysis in a CEQA document:
- An adequate CEQA analysis for a large, multi-phase project must assume that all phases of the project will eventually be built
and will need water. As such, an EIR must analyze, to the extent reasonably possible, the impacts of providing water to the
entire project. Tiering cannot be used to defer analysis of water supplies to serve later project phases.
- An EIR may not simply assume that a solution to potential supply issues will be found. Instead, uncertainties regarding future
water supplies must be fully examined in order to satisfy CEQA’s informational purposes.
- Future water supplies must bear a “likelihood of actually proving available” and the EIR must discuss the circumstances affecting
the likelihood of the water’s availability. An EIR cannot rely on “paper water” to slake the project’s thirst; a reasonable
probability of accessing a source of “wet water” must be shown.
- If there is uncertainty about the availability of identified future water supplies, CEQA requires an examination of possible
alternative sources and the environmental consequences of using such sources.
- If long-term water supply is uncertain, an EIR’s informational purpose is not met by simply prohibiting future development
from going forward if anticipated water supplies never materialize. However, a measure for curtailing future development
if intended sources become unavailable may form one part of the EIR’s approach, so long as the uncertainty is fully examined
and alternative sources are analyzed.
- The burden of identifying likely water sources varies with the stage of project approval. For example, the degree of confidence
in water supplies necessary for a conceptual plan need not be as high as for issuance of building permits.
- An EIR need not show that water supplies are definitely assured, such as through a signed contract with a provider and built
or approved treatment and delivery facilities. Such a requirement for a long-term project would be “unworkable, as it would
require water planning to far outpace land use planning.”
- The ultimate question under 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.
- An EIR may rely on the water supply analysis contained in a previously prepared urban water management plan, if the plan accounted
for the individual project’s demand in its analysis.
Although most of these principles had previously been set forth in other cases, the California Supreme Court previously had
not considered or endorsed them. After Vineyard, interested persons may rely on these rules with more certainty.
EIR’s Analysis of Long-Term Water Supplies Found Defective
Applying these principles, the Court found that although the near term water supply analysis was sufficient, the EIR had
failed adequately and coherently to analyze the long-term water supply sources and the environmental effects of long-term
provision of water to the project.
For the near-term supplies, the EIR indicated that the project would initially rely on groundwater extracted from a new well
facility that was yet to be constructed. The project opponents argued that the new well field could not be relied upon because
other competing projects were planning to use the same water. However, the court explained that “[u]ncertainty in the form
of competition for identified water sources is an important point that should be discussed in an EIR’s water supply analysis
. . . but it does not necessarily render development of the planned water supply too unlikely.” The Court found that “while
much uncertainty remains,” the EIR fully analyzed the near-term water source and other projects which may compete for the
same water, and it contained “substantial evidence demonstrating a reasonable likelihood” that the anticipated water source
“will indeed be available at least in substantial part.” Even though other projects potentially could seek to use the same
water source, the source had not been fully built, and the project did not have an established legal right to the water, the
Court was satisfied with the EIR’s full analysis of all uncertainties and demonstration of a “reasonable likelihood” that
the water would be available.
On the other hand, the Court found that the EIR’s treatment of long-term supplies was both factually and procedurally defective.
The Court emphasized that certainty is not required for long term supplies. Although the EIR contained extensive analysis
of potential sources of long term water supply, the Court concluded it was inadequate under CEQA because the EIR failed to
coherently and consistently explain how it concluded that adequate future water supplies would reasonably likely be available.
The Court described the EIR as presenting “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 Court was particularly concerned that the EIR failed to explain how competing long term water demands in the region would
impact the project’s procurement of water. In this regard, the court explained that the EIR failed to make clear how the
available water supply was expected to meet total demand in the relevant water agency zone over the long term and, consequently,
why a sufficient amount of the identified supply should reasonably be expected to be available for the project at issue.
Further, the EIR did not provide information, other than General Plan projections, regarding what other development projects
within the same water service zone were in prospect in the long term, what their specific water needs would be, or when they
would draw on available supplies. Thus, the EIR failed to demonstrate a likelihood that in the project area, there would
be “at least a rough balance between water supply and demand.”
The Court also found a number of what it termed “procedural” defects. One was that the EIR attempted to rely on a mitigation
measure that would curtail future development if water supplies prove unavailable. The Court found that this impermissibly
deferred conducting a full analysis of the impacts of providing long-term water supplies until a later date. The Court also
rejected an argument by the developer that conjunctive use of groundwater would reduce uncertainty of surface water supplies,
because this argument relied upon a discussion of impacts and mitigation contained in a separate document, the “Water Forum
Proposal” and its attendant EIR, that evaluated the water supply resources and needs of the Sacramento region. The court
explained that since the EIR did not tier off of, explicitly incorporate by reference, summarize, or otherwise guide the reader
to the relevant information in the Water Forum Proposal of the Water Forum Proposal EIR, this information did not constitute
substantial evidence in the record of the proceedings on the project to support the analysis in the project EIR. As the court
further explained, “[t]he question is therefore not whether the project’s significant environmental effects can be clearly explained, but rather whether they were.” Finally, the Court also held that the EIR’s claim that a full analysis of conjunctive use would need to await environmental
review which was then being prepared for a separate regional water supply analysis was, in effect, an improper attempt to
tier from a future environmental document.
Potential New Requirement for a CEQA Water Supply Analysis to Balance Long-Term Regional Supply and Demand
Justice Baxter dissented in part from the majority opinion, finding that the EIR demonstrated adequate water supplies for
all phases of the project. He was particularly troubled by the implications of the section of the majority opinion which
faulted the EIR for failing to demonstrate that there will be a long term, region-wide balance between water supply and demand.
According to Justice Baxter, this appears to mean that the EIR should have assessed the potential for “increased long-term
demand from other, purely hypothetical projects that could be developed under the . . . general plan for the . . . area –
even if . . . those projects have not yet been entitled, approved, or even proposed.”
The majority opinion responded to this concern by stating that CEQA does not necessarily require an EIR to show that such
a regional balance of total supply and demand will exist. The majority indicated that an EIR “may by other means demonstrate
a reasonable likelihood that water will be available for the project by an identified source,” or “even without a showing
that water from the identified source is likely to be sufficient, . . . may satisfy CEQA by fully disclosing the uncertainty,
the other possible outcomes, their impacts and appropriate mitigation measures.” In addition, the majority noted that a local
agency may rely on the long-term water planning in existing urban water management plans in a project EIR, so long as the
expected demand of the project was accounted for in such plans.
If Justice Baxter’s interpretation of the majority opinion is correct, the Court has significantly raised the bar for CEQA
water supply analysis, particularly for large, multi-phase projects in growing areas of the state, since an EIR for a single
project apparently would need to analyze not only where that project will get its water, but also where all other regional
projects that may draw from similar sources will get their water. The majority did, however, point to alternatives to providing
a new analysis of total regional water supply and demand.
Because of this continuing ambiguity, future litigation is likely over the adequacy of future water supply analysis. Project
opponents understandably will be inclined to test whether the Supreme Court really intended to impose the stringent requirements
that Justice Baxter posited. Thus, only future cases will clarify what will be required to satisfy the standards set forth
in this decision. In the meantime, however, Vineyard will likely engender CEQA challenges based on water supply issues. For that reason, the water supply analysis in pending
EIRs should be given very careful attention early on, with the factual underpinnings and conceptual basis for it being structured
carefully and rigorously reviewed in anticipation of such challenges.
