Client Alert

Land Use And Water Supply: CEQA Decision Validates EIR's Reliance On Future Water Supplies


In a recent decision examining the intersection between land use planning and water supplies, the California Court of Appeal has upheld a lead agency’s reliance on long-term water supplies where the final availability of the water has not been confirmed but the water supply is planned and has been evaluated. In Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (Vineyard Area Citizens), the Court upheld an EIR prepared for the proposed Sunridge Specific Plan, covering a 6,015-acre mixed-use project located in the Sunrise Douglas and Sunridge areas of unincorporated Sacramento County (and now within the City of Rancho Cordova). This decision also includes important rulings regarding litigation over an environmental impact report.

The EIR for the 22,500 unit project included a detailed analysis of the regional water demand and the supplies available to serve that demand. The proposed long-term water supply for the planning area included a mix of existing groundwater entitlements and unconfirmed, but planned, future surface water deliveries. Much of the EIR’s analysis of proposed future surface water supplies was based on the multi-jurisdictional Water Forum Plan, a significant water policy project that evaluates water resources and future water supply needs of the Sacramento metropolitan region, as well as a separate EIR prepared for the Water Forum Plan.

Water Supply Rulings

The Vineyard Area Citizens court held that an EIR provides an adequate analysis of water supply issues if the EIR identifies and analyzes potential water supply sources even though the final availability of those water sources is not confirmed. Citing a similar ruling in Napa Citizens for Honest Government v. Napa County Board of Supervisors, the court stated that "[s]uch an approach makes sense as a practical matter. To hold otherwise would require each project covered by the Water Forum Plan to revisit all of the issues addressed in that massive collaborative effort each time a new project was proposed. … Such an approach would be wasteful and even possibly counterproductive."

The citizens group challenging the Sunridge plans argued that, because there was no firm source of surface water for the later phases of the project, there had been no analysis of the environmental impacts of supplying a significant amount of the water the project will need. In support of this argument, the citizens group cited Stanislaus Natural Heritage Project v. County of Stanislaus (Stanislaus), which overturned an EIR for a 25-year project because that EIR had not identified water supplies for development after the first five years. Because no adequate long-term water supply was identified in that EIR, the Stanislaus court held that the purpose of CEQA had been bypassed, and Stanislaus County had approved a project without an informed decision about the environmental impacts of developing and delivering the necessary water supply.

The Vineyard Area Citizens court distinguished Stanislaus because, in that case, the EIR completely failed to identify any actual or potential source of water, so that any analysis of the future availability of water was entirely speculative. By contrast, in Vineyard Area Citizens, potential water supply sources had been identified and studied in detail. According to the Vineyard Area Citizens court, the direct connection between the project and the Water Forum Plan process made the Vineyard Area Citizens case fundamentally different from Stanislaus, where the lead agency flatly acknowledged that no sources had been established for later phases of the subject project.

The citizens group also challenged the EIR on the basis of court decisions that have rejected EIRs that relied on State Water Project (SWP) water entitlements, where the courts have held that such entitlements are illusory "paper water" because SWP deliveries fluctuate annually, and because the SWP had not been built to its originally-envisioned capacity. The Vineyard Area Citizens court distinguished these "paper water" cases by noting that, while some of the necessary water supplies for the Sunridge plans did not exist, "they are future water supplies, not illusory supplies. That is a critical difference: It is possible to conduct environmental review of future supplies, which is what was done here, whereas, as shown by [the other case law], reviewing impacts of imaginary supplies is as useless as counting angels on the head of a pin."

Finally, the Vineyard Area Citizens court rejected the citizens’ argument that the EIR should have analyzed all other potential sources of future water supplies in case the surface supplies assumed by the EIR fail to materialize. According to the Court, "[t]he County was not required to adopt the most pessimistic view, but was simply required to consider a reasonable range of scenarios and explore the environmental issues surrounding each. … The County was not required to take a ‘worst case scenario’ approach."

CEQA Litigation Rulings

The Vineyard Area Citizens decision includes a number of other rulings on the EIR, general plan consistency, and CEQA litigation. Of particular note, citing both CEQA and non-CEQA court cases, the Court of Appeal confirmed that a party challenging a project approval must set forth a fair statement of the facts of the case, and failure to set forth a fair statement of facts forfeits that party’s evidentiary claims about the decision being challenged. Also, when on appeal, even though the appellate court reviews the case anew, the appellant must explain why the trial court decision upholding the EIR was incorrect rather than simply restating the arguments that were already made to the trial court.

Morrison & Foerster LLP is a leader in CEQA litigation and in the preparation and review of water supply assessments for the purposes of compliance with CEQA and the Water Code.  On behalf of the Bay Area Council, Morrison & Foerster (along with many other groups) requested publication of the Vineyard Area Citizens decision.  For further information, please contact Clark Morrison ((925) 295-3317;, David Gold ((295) 925-3310; Mike Zischke ((415) 268-6718;




Unsolicited e-mails and information sent to Morrison & Foerster will not be considered confidential, may be disclosed to others pursuant to our Privacy Policy, may not receive a response, and do not create an attorney-client relationship with Morrison & Foerster. If you are not already a client of Morrison & Foerster, do not include any confidential information in this message. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not properly authorized to do so.