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87 Cal.App.4th 99, 2001 WL
126244 (Cal.App. 6 Dist.), 1 Cal. Daily Op. Serv.
1412, 2001 Daily Journal D.A.R. 1771 SAVE OUR PENINSULA
COMMITTEE et al., Plaintiffs and Respondents, v. MONTEREY COUNTY BOARD OF
SUPERVISORS, Defendant and Respondent; September Ranch Partners et
al., Real Parties in Interest and Appellants. SIERRA CLUB et al.,
Plaintiffs and Respondents, v. COUNTY OF MONTEREY et al.,
Defendants and Respondents; September Ranch Partners et
al., Real Parties in Interest and Appellants. Nos. H020900, H020933. California Court of Appeal,
Sixth District. Feb. 15, 2001. Monterey County Superior Court Superior Court, No.:
M42412, The Honorable Richard M. Silver. McCutchen, Doyle, Brown & Enersen, Stephen L.
Kostka, Marie A. Cooper; Lombardo & Gilles, Anthony L. Lombardo, Jacqueline
M. Zischke, Attorneys for Real Parties in Interest and Appellants, September
Ranch Partners. Alexander T. Henson, Richard H. Rosenthal, Gregory
James, Attorneys for Plaintiffs and Respondents, Save Our Peninsula Committee,
et al. Frances M. Farina, Michael W. Stamp, Attorneys for
Plaintiffs and Respondents, SIERRA CLUB, et al. No appearance by Defendants and Respondents, County of
Monterey, Monterey County Board of Supervisors. BAMATTRE-MANOUKIAN. In this CEQA [FN1] case, the project
applicants, real parties in interest September Ranch Partners, appeal from a
judgment granting two petitions for a writ of mandate. The superior court found
that the project's Environmental Impact Report (EIR) was legally inadequate under
CEQA and directed that the Monterey County Board of Supervisors (the Board)
vacate certification of the EIR and prepare and circulate a legally adequate
EIR with respect to specified water and traffic issues. Appellants argue that
the Board's certification of the EIR must be upheld because the Board's
determinations regarding the project's water and traffic impacts were supported
by substantial evidence. FN1 California Environmental Quality Act, Public
Resources Code, section 21000, et seq. After reviewing the record, we conclude that the EIR
in this case did not comply with CEQA in its treatment of several critical
water issues. Because of these inadequacies, the Board's action certifying the
EIR and approving the project constituted an abuse of discretion. We further
conclude, however, that the EIR was adequate in its discussion of traffic
impacts and mitigation. We will therefore affirm in part and reverse in part
the judgment in favor of petitioners and direct that the trial court issue a
new writ of mandate in accordance with the views expressed herein. BACKGROUND [FN2] FN2 This discussion is confined to water issues. We
will include the background of the traffic issues in the discussion in that
section. The September Ranch property consists of 891 acres
located along Carmel Valley Road approximately 3 miles east of the junction
with Highway 1. Most of the property is hilly terrain with south-facing slopes.
A level terrace adjacent to Carmel Valley Road of approximately 21 acres
contains an equestrian center, including a barn, outside stalls, a training
ring, a residence for employees, and pastureland. A regional park and a small
county-owned parcel lie to the west and northwest of the property and to the
south is a golf resort and lodge. Otherwise the surrounding area is
characterized by residential development. The zoning of the September Ranch
property is for residential development. The property is governed by the Carmel
Valley Master Plan (Master Plan), which is part of the county's general plan.
Under the Master Plan, this amount of acreage would allow for 208 homes. The September Ranch property is located within the
Carmel River watershed. The property's water needs have been served by well
water since the early 1930s. A new well was installed in 1990. Additional wells
were installed in 1992 for purposes of data collection. A small aquifer, or
sub-basin, underlies the 21 acre terrace on the property. It was originally
thought by the owners to be a separate aquifer, isolated from the main Carmel
Valley aquifer. However testing during the environmental review for this
project determined that this sub-basin was not entirely separate and that there
was some water exchange between it and the Carmel Valley aquifer. The Carmel
Valley aquifer is a primary source of water for the Monterey Peninsula. It is well documented that water availability is a
critical problem throughout Monterey County (the County) and in Carmel Valley
in particular. In 1988, the County passed Ordinance No. 3310, finding that because
of expanded water usage "the potential exists that Monterey County's
allocation of water will be exhausted so as to pose an immediate threat to the
public health, safety, or welfare ." In 1995, the State Water Resources
Control Board issued Order No. 95-10 and a related Decision No. 1632. Order No.
95-10 found that the California-American Water Company (Cal Am), which was the
principal supplier of water to the Monterey Peninsula, had diverted excess
water from the Carmel River basin "without a valid basis of right,"
causing environmental harm. Cal Am was ordered to substantially limit its
diversions, to mitigate the environmental effects of its excess usage and to
develop a plan for obtaining water legally. Decision No. 1632 similarly found
that "[e]xisting diversions from the Carmel River have adversely affected
the public trust resources in the river." The Carmel Valley Master Plan
also recognized the serious water shortage in the Carmel Valley and set the
standard for development until a solution was found. In Policy 54.1.7, the
Master Plan found that without an additional water supply, such as from a
proposed dam project, "development will be limited to vacant lots of
record and already approved projects. All development which requires a water supply
shall be subject to County adopted water allocation and/or ordinances
applicable to lands in the Carmel Valley Master Plan area." The Morgens family has owned the September Ranch
property since the 1960s. In 1995 James Morgens formed a partnership called September
Ranch Partners for the purpose of developing the property. The partnership
submitted its development application to the County in June of 1995. The
proposal was for 100 single family lots and 17 moderate income housing units.
The application included a September Ranch Water Supply Plan, which called for
Cal-Am to supply potable water. However, the month after the project
application was submitted, the State Water Resources Control Board adopted
Order No. 95-10, which cut back Cal-Am's diversion of water from the Carmel
River basin and essentially foreclosed its ability to provide water for new
projects. The Draft EIR On August 4, 1995, the County issued its Initial Study
for the September Ranch project and the Notice of Preparation of the EIR was
filed the same day. The draft EIR was published over two years later, on
October 27, 1997. The draft EIR recognized existing policies regarding
water resources in the Carmel River valley. It stated that potable water for
the project was to be provided by a small mutual water system, independent of
the Cal-Am Water system, which would supply water pumped from wells on the
September Ranch property. It noted that because there was potential groundwater
flow between the September Ranch sub-basin and the adjacent Carmel Valley
aquifer, "pumping in the September Ranch basin has the potential to affect
water levels in areas of the Carmel Valley alluvium." Furthermore,
"any increase in the impacts to the [Carmel Valley] aquifer would be
considered an adverse environmental impact given the water supply problems in
the Carmel Valley area." Any impact reducing flow to the Carmel Valley
aquifer was "potentially significant." As mitigation for this impact,
the draft stated that water demand for the project must be limited to existing
water use on the property. The draft EIR included a discussion of "Existing
Water Demand" for the property. It stated that there was "limited
historic data" to determine actual water usage over the years; however
Monterey Peninsula Water Management District records from 1991 to 1996 showed
that water use on the property ranged from a low of 0.40 acre-feet in 1995 to a
high of 40.68 acre-feet in 1993. There was no data prior to 1991. The draft
reported that the applicants were "establishing pasture on approximately
21 acres" of the property. Irrigation was an allowable use of well water
for the property. Based on the assumption that these 21 acres were irrigated,
the draft EIR then determined "for the purposes of assessing impacts"
that an estimate of existing water use for the September Ranch property was 45
acre-feet per year. This was based on an estimated 2 acre-feet for each of the
21 acres of pastureland plus 3 acre-feet used by the existing equestrian center
and residence. The 2 acre-feet per acre was an estimate for irrigated
pastureland taken from Monterey Peninsula Water Management District guidelines
for irrigated lands in the area and from a 1985 Pajaro Valley Irrigation
Report. Water demand for the project as proposed for 117 residences
was calculated at 61.15 acre-feet per year. This resulted in an increase of
approximately 16.15 acre-feet per year over the existing estimated usage of 45
acre-feet per year. The draft EIR explained that the groundwater storage in the
September Ranch sub-basin was more than adequate to supply the increased water
demand during wet or normal weather conditions. However, the sub-basin supply
would be vulnerable during a sustained drought of more than five years, which
the draft concluded was a significant impact that must be mitigated.
Furthermore, increased pumping on the September Ranch property could delay or
reduce subsurface groundwater recharge to the Carmel Valley aquifer. Although
this reduction would be a "small percentage" of the overall groundwater
recharge in the Carmel Valley aquifer, the draft EIR acknowledged that
"any impact reducing flow to the Carmel Valley aquifer is potentially
significant." The draft concluded that in order to mitigate the impact of
increased pumping, the project applicants would either have to limit water
project demand to the baseline of 45 acre-feet per year--either by reducing
density or by instituting conservation measures--or they would have to provide
an offsetting pumping reduction of 16.2 acre-feet per year elsewhere within the
Carmel Valley basin. The draft EIR was circulated for public review and
comments were received from agencies, associations and members of the public
during the 45-day review period. The comments included numerous responses to
the baseline water use figure. Letters from local property owners indicated
that the pasturelands on the property had not been irrigated historically, but
that the applicants had only recently begun irrigating since the application
process had commenced. A comment from the Monterey County Department of Health
pointed out that the actual amount of pastureland was significantly less than
21 acres and further that the draft EIR had stated only 11 .6 acres was
currently irrigated. In their responses to these comments the EIR
consultants indicated that the figures regarding water usage were obtained from
the project applicants: "This EIR has relied on production information
provided by the applicant, well production records available in the recent past
and the extrapolation of a reasonable estimate of water use based upon
irrigated acres of land on the site ." The responses further explained
that the applicants had "stated that this area has been irrigated in the
past, although there is no documentation available to confirm this." The
responses acknowledged that "in the recent past only 11.6 acres were
irrigated." The applicants also submitted further information and
studies which indicated that irrigated pastureland actually could require as
much as 6 acre-feet per year per acre. Furthermore, they represented that they
had recently used approximately 23 acre-feet of water to irrigate approximately
11.6 acres of the terrace for only 14 weeks. This, they calculated, would
compute to 95 acre-feet per year for the entire 21-acre pasture. However,
according to the Monterey Peninsula Water Management District, "this use
would be higher than any other documented pasture irrigation in Carmel
Valley." The
Final EIR The comments and responses were incorporated into the
final EIR, dated March 6, 1998. In its analysis of baseline water usage, the
final EIR reiterated that no documentation existed which could confirm
historical water usage on the September Ranch. The EIR noted that comments to
the draft EIR had suggested both higher and lower amounts than the estimate of
45 acre-feet per year. The final EIR continued to use 45 acre-feet per year as
a baseline for purposes of assessing impacts, explaining that "[t]his EIR
attempts to provide a reasonable baseline based upon information of historic
use provided by the applicant and a water demand factor for irrigated
pastureland accepted by local water agencies (2.0 AF/acre, MPWMD)."
However, the EIR then suggested that the Board could accept "additional
documentation" and could revise this baseline figure higher or lower.
Whether the baseline were set higher or lower, mitigation would require that
"[n]o post-project water use will be allowed greater than the baseline (or
an acceptable offset for this use [will] be required)." The final EIR included an updated Water Production
Data Chart compiled from Monterey Peninsula Water Management District records,
showing metered water production on the property through 1997. This chart
showed that water production had reached a new high of 78.34 acre-feet in 1997.
However, the chart explained that approximately 52 of this 78.34 acre-feet was
produced during a 47-day period of aquifer testing. Using the 45 acre-feet per year figure that had been
determined to be a "reasonable" baseline figure, the final EIR
reached the same conclusions as the draft. It found that the project as
proposed would result in increased pumping of approximately 16.2 acre-feet over
baseline use. Post-project water use greater than identified baseline levels
was a significant impact which would require mitigation: either reducing water
production for the project to baseline conditions or providing an offsetting
pumping reduction within the Carmel Valley basin. The
Supplemental Final EIR The County belatedly forwarded the draft EIR to the
State Clearinghouse on March 4, 1998, which required a second 45-day review
period and generated further comments. The responses to these comments were
added as "Volume 2" to the final EIR, dated May 27, 1998. This is
also referred to as the "Supplement to Final EIR," or the
supplemental EIR. The supplemental EIR included extensive comments by the State
Water Resources Control Board (SWRCB) regarding the EIR's conclusions about
groundwater recharge. These comments indicated that groundwater recovery under
normal conditions would be worse than depicted in the EIR and stated that
appropriation of water from the aquifer underlying the September Ranch would be
subject to the permitting authority of the SWRCB. In response, the applicants
then wrote to the SWRCB asserting that they had riparian rights which could be
utilized for the project. The SWRCB's reply indicated the various
qualifications under which the project could be considered for riparian rights. The responses in the supplemental EIR addressed, among
other things, these asserted riparian rights, which neither the draft EIR nor
the final EIR had discussed. The supplemental EIR explained that
"[a]lthough the project applicants originally identified that they would
be using 'percolating groundwater' under the project site, a subsequent letter
has clarified their intent to provide water to their proposed project under
their 'riparian' rights." The new material went on to explain the
differences between groundwater rights, riparian rights and appropriative
rights. The supplemental EIR noted that it could not confirm the property's
riparian status and that the SWRCB had not yet made a determination as to the
validity of any claimed riparian right. A new mitigation measure was added in
the supplemental EIR, requiring that the applicants either provide assurance of
a valid riparian claim or secure a permit for an appropriative water right from
the SWRCB. On June 22, 1998, after the supplemental EIR was
issued, the attorney for the applicants informed the County Planning Department
that the applicants had ownership rights to a 10-acre parcel of land along
Carmel Valley Road, known as the Berube parcel. The applicants had recently
purchased the stipulated right to pump approximately 32 acre-feet of water per
year from this property. The attorney asserted that pumping on the Berube
parcel could be reduced if mitigation of the impact of water use for the
September Ranch project were necessary. An appropriative permit is not required
in order to use a reduced pumping offset. Citizen
Committees Pursuant to local ordinance, the September Ranch
project was presented to the Carmel Valley Citizens Subdivision Evaluation
Committee to evaluate the project for compliance with the Carmel Valley Master
Plan. On May 18, 1998, the Committee gave the project a failing score of 44
percent in the category of water/hydrology. The County's Land Use Advisory
Committee reviewed the project in June of 1998 and voted for denial because it
concluded that the project did not comply with Carmel Valley Master Plan
policies relating to water supply and traffic. Planning
Commission Decision
On September 30, 1998, the County Planning Commission
(Planning Commission) voted to deny the proposed project, based in part on
concerns about water impacts. The Planning Commission voted to approve a
smaller project with 49 residential units and 7 inclusionary units, which was
described as the environmentally superior project in the final EIR. The
Planning Commission did not accept the approach used in the EIR to determine
baseline use by computing an average estimated use of 2 acre-feet per year per
acre for irrigated pasture. Instead the Planning Commission relied on actual
water production records for the September Ranch for the most recent year,
namely 1997. It found this figure to be 26.34 acre-feet (a total of 78.34
acre-feet less 52 acre-feet attributed to aquifer testing), and therefore
recommended that the project density be reduced accordingly so that there would
be no increase in pumping over baseline level. The Planning Commission found
that the reduced density project was necessary to ensure that impacts to the
Carmel River alluvial aquifer were reduced to a level of insignificance. A
hearing for review of the Planning Commission decision was then set before the
Monterey County Board of Supervisors for December 1, 1998. Supplemental
Information and Errata
On November 19, 1998, additional information was
submitted by the environmental consultants, entitled "Supplemental
Information and Errata for the September Ranch Project Environmental Impact
Report." This supplemental material discussed the reduced density
alternative of 49 units adopted by the Planning Commission, and noted that
information provided by the applicants had indicated that this alternative was
economically unfeasible. The Errata also contained a further discussion of
baseline water usage, recognizing once again that "if the project were to
exceed the amount of water used on the site under existing or baseline
conditions, a significant unavoidable impact would occur due to potential
regional water impacts." It explained that the EIR had determined the
baseline of 45 acre-feet per year by using a "standard water demand factor
for irrigated pastureland" based on irrigation formulas and
representations by the applicants that "there was an established practice
of irrigation on the site." The Monterey Peninsula Water Management
District and the County Environmental Health Department, however, had requested
that the EIR consider an alternative that used only "documented past year
water use," which was the approach taken by the Planning Commission. This
had resulted in a figure of 26.34 acre-feet per year. The Errata concluded that baseline could be
established either by using an assigned water demand factor for irrigated
pastureland, as the EIR had done, or by relying on recent records of water
production. Referring to a newly updated chart of documented water use from
1991 to 1999, the Errata then set forth a calculation of baseline water use for
various combinations of years: for 1998- 1999, average production was
approximately 43 acre-feet per year; for 1997- 1999, the figure was 51
acre-feet per year; for 1993-1999, average use was approximately 30 acre-feet
per year. The supplemental material again emphasized that the EIR required that
"post-development water production from the September Ranch aquifer not
exceed identified pre-project baseline levels." The staff report to the Board was prepared the next
day, November 20, 1998, and it attached the Supplemental Information and
Errata, as well as the supplemental final EIR, and further supplemental
information from the applicants regarding the Berube property. Staff prepared a
revised Board resolution, dated December 1, 1998. Staff recommended that the
Board modify the Subdivision Evaluation Committee's failing score in the
category of water/hydrology and give the project a passing score. This
recommendation was based on the fact that the applicants had since identified
the Berube property as a source for offset pumping, and staff had secured
evidence from the applicants documenting the availability of water use on the
Berube parcel sufficient to provide the necessary mitigation of the impact of
pumping water over baseline for the September Ranch property. Because the
Supplemental Information and Errata and the new information on the Berube
property were made available just prior to the Board hearing, the opportunity
for public comment and response was limited. The Decision of
the Board of Supervisors
On December 1, 1998, the Board conducted a public
hearing and decided, on separate 3-to-2 votes, to certify the EIR, to modify
the failing score of the Subdivision Evaluation Committee, and to adopt the
findings and conditions of approval for a modified project. Rather than 100
market-rate units and 17 inclusionary units as initially proposed, the Board
approved 94 market-rate units and 15 inclusionary units. Recognizing the
requirement that project water use be limited to baseline conditions, the Board
"selected 51 acre-feet per year as the baseline water use amount."
This figure was derived from an average of water production on the property
during the past three reporting years-- 1997, 1998 and 1999--and was based on
the updated chart and information provided in the Supplemental Information and
Errata. The Board found that the water demand of the reduced-density project as
approved was 57 acre-feet per year. Thus only 6 acre-feet per year was needed
to offset the increase over baseline. As a condition of approval of the
project, the applicants were to provide an offsetting reduction in pumping on
the Berube parcel to ensure that water demand on the Carmel Valley aquifer did
not increase as a result of the project. On December 21, 1998, a county clerk published the
findings and conditions of the Board in Resolution No. 98-500. This resolution
contained several changes to the Board's findings and conditions that were
taken from material submitted to the clerk by the attorney for September Ranch
after the Board had adjourned. The Mandate
Proceeding
Two petitions for administrative mandate were filed in
superior court, by the Save Our Peninsula Committee, [FN3] et al., and
by Sierra Club et al., challenging the certification of the EIR and the
findings of the Board. The court consolidated the cases for a court trial,
which was held on July 1 and July 6, 1999. The court issued a lengthy
"Intended Decision" on September 1, 1999, which it adopted as its
Statement of Decision. The court concluded that the Board's findings as to
baseline water conditions were not supported by substantial evidence; that the
Board's findings that there was a long-term water supply in the form of
riparian rights were legally inadequate and not supported by the evidence; that
the EIR contained no environmental analysis of the use of an off-site water
source to offset water usage over baseline; and that the EIR failed to
adequately consider mitigation of the traffic impacts of the project at the
intersection of Highway 1 and on two other segments of Carmel Valley Road. FN3 Two parties in this action, Ed Leeper and Save Our
Peninsula Committee, were dismissed following a demurrer sustained without
leave to amend. The remaining petitioner, Responsible Consumers of the Monterey
Peninsula, is still a party and is the respondent in appeal No. H020900. The court entered judgment in favor of petitioners in
both actions and issued a writ of mandate remanding the matter back to the
Board and ordering the Board to vacate Resolution No. 98-500 and to vacate the
certification of the EIR. The Board was ordered to take no further action to
approve the project without first preparing, circulating and considering an EIR
that was legally adequate with regard to its analysis of the water and traffic
issues delineated in the Statement of Decision. In light of its ruling on water
and traffic issues, the court found the Petitioners' other objections to the
project approval and to the EIR were moot, but could be revived depending on
the Board's actions on remand. [FN4] Attorney fees were awarded to
Petitioners. FN4 As to the asserted changes made to the Board's
findings after the Board had adjourned, the trial court noted that the record
revealed "numerous instances" where the applicants' attorney had
prepared critical documents for county planners. The court disapproved such a
practice and pointed out that the County had indicated it had "recognized
the problem and taken appropriate action." Real parties in interest September Ranch Partners and
James Morgens appeal. [FN5] They argue that the EIR was legally
sufficient and that the Board's determinations regarding water supply impacts
and mitigation and traffic mitigation were supported by substantial evidence.
Real parties also appeal the orders awarding attorney fees. They argue that if
the judgment is reversed, the orders awarding attorney fees must also be
reversed. The County did not appeal and no cross-appeals were filed by
Petitioners. FN5 The two petitions were consolidated only for administrative
purposes at trial. Therefore, two separate appeals were filed. The two appeals
have been consolidated here for the limited purposes of filing the
administrative record, oral argument and decision. ISSUES Standard of
Review
In a mandate proceeding to review an agency's decision
for compliance with CEQA, the scope and standard of our review is the same as
the trial court's and the lower court's findings are not binding on us. (San
Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27
Cal.App.4th 713, 722.) We review the administrative record to determine whether
the agency prejudicially abused its discretion. (Laurel Heights Improvement
Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1132-1133.)
"Abuse of discretion is established if the agency has not proceeded in a
manner required by law or if the determination or decision is not supported by
substantial evidence." (Pub. Resources Code, § 21168.5; Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
392, fn 5; County of Amador v. El Dorado County Water Agency (1999) 76
Cal.App.4th 931, 944.) "Substantial evidence" is defined in the CEQA
Guidelines [FN6] as "enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached. Whether a fair
argument can be made is to be determined by examining the entire record. Mere
uncorroborated opinion or rumor does not constitute substantial evidence."
(Guidelines, § 15384, subd. (a).) The agency is the finder of fact and we must
indulge all reasonable inferences from the evidence that would support the
agency's determinations and resolve all conflicts in the evidence in favor of
the agency's decision. (Western States Petroleum Assn. v. Superior Court (1995)
9 Cal.4th 559, 571.) In reviewing an agency's decision to certify an EIR, we
presume the correctness of the decision. The project opponents thus bear the
burden of proving that the EIR is legally inadequate. (Al Larson Boat Shop,
Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740;
Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1617.) FN6 The CEQA Guidelines are found at California Code
of Regulations, title 14, section 15000, et seq. While we are guided by these deferential rules of
review, we must also bear in mind that the overriding purpose of CEQA is to
ensure that agencies regulating activities which may affect the quality of the
environment give primary consideration to preventing environmental damage.
(Laurel Heights Improvement Assn. v. Regents of University of California,
supra, 47 Cal.3d at p. 390.) CEQA is the Legislature's declaration of policy
that all necessary action be taken "to protect, rehabilitate and enhance
the environmental quality of the state." (Id. at p. 392; Pub. Resources
Code, § 21000.) "The EIR is the heart of CEQA" and the integrity of
the process is dependent on the adequacy of the EIR. (County of Inyo v. Yorty
(1973) 32 Cal.App.3d 795; Sutter Sensible Planning, Inc. v. Board of
Supervisors (1981) 122 Cal.App . 3d 813.) " 'The ultimate decision of
whether to approve a project, be that decision right or wrong, is a nullity if
based upon an EIR that does not provide the decision-makers, and the public,
with the information about the project that is required by CEQA.' [Citation.]
The error is prejudicial 'if the failure to include relevant information
precludes informed decisionmaking and informed public participation, thereby
thwarting the statutory goals of the EIR process.' " (San Joaquin
Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th at
pp. 721-722; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997)
60 Cal.App.4th 1109, 1117; County of Amador v. El Dorado County Water Agency,
supra, 76 Cal.App.4th at p. 946.) When the informational requirements of CEQA
are not complied with, an agency has failed to proceed in "a manner
required by law" and has therefore abused its discretion. (Pub. Resources
Code, §§ 21168.5; 21005, subd. (a); County of Amador v. El Dorado County Water
Agency, supra, 76 Cal.App.4th at p. 946; Environmental Planning &
Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 355.) In sum, although the agency's factual determinations
are subject to deferential review, questions of interpretation or application
of the requirements of the CEQA statute are matters of law. (Galante Vineyards
v. Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th 1109, 1117;
County of Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at pp.
952-956; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus,
supra, 27 Cal.App.4th at pp. 728-729.) While we may not substitute our judgment
for that of the decisionmakers, we must ensure strict compliance with the
procedures and mandates of the statute. (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 564.) WATER ISSUES The EIR in this case recognized the serious water
concerns in the Carmel Valley and acknowledged the state and local policies
seeking to limit any new development that would result in increased water
pumping affecting the Carmel Valley alluvial aquifer. In consideration of these
concerns, the analysis of water issues in the EIR rested on the premise that
any increase in water pumping above pre-project levels would constitute an
adverse and significant environmental impact mandating mitigation. No one
disputes this general premise. Rather it is the determination of the
pre-project or "baseline" water use, against which the water demands
of the project are to be measured, that is at the center of the controversy
here. We turn to this issue first and to several questions which must necessarily
be resolved along with it. Is the determination of baseline water use a policy
decision, properly addressed to the discretion of the decision-making agency,
or does CEQA require that baseline be established in the EIR? Was the EIR's
estimate of baseline water use for irrigated pastureland supported by the
evidence? Was the Board's determination that baseline water use in this case
was 51 acre-feet per year supported by evidence in the record? And what is the
time at which a baseline for water use is properly determined? Is it at the
beginning of the environmental review process or at the end when the project is
approved? We next address two additional and related water
issues: whether the EIR adequately analyzed off-site pumping reduction on the
Berube property as mitigation of any increased water usage over baseline, and
whether the EIR adequately discussed the applicants' asserted riparian rights
as a long-term water source. Baseline Appellants argue that the determination of a baseline
condition is a matter of policy to be resolved by the agency, based on the
information and analysis provided in the EIR. Appellants remind us that the EIR
is only an informational document and that the agency is the decisionmaker.
(County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) Here the
preparers of the EIR ultimately found that the question of "the
establishment of a baseline use and mitigations based upon this baseline"
raised policy implications best addressed to the Board's discretion. Appellants
argue that this was proper because the EIR contained an array of evidence
regarding baseline and a variety of suggested formulas for determining
baseline. The Board's choice of a particular formula was therefore within its
discretion and was supported by the evidence. Respondents argue that the baseline environmental
conditions must be established in the EIR itself. Without a determination and
description of the existing physical conditions on the property at the start of
the environmental review process, the EIR cannot provide a meaningful
assessment of the environmental impacts of the proposed project. (Pub.
Resources Code, §§ 21100, subd. (a); 21060.5; Environmental Planning &
Information Council v. County of El Dorado, supra, 131 Cal.App.3d at p. 354.)
"Before the impacts of a project can be assessed and mitigation measures
considered, an EIR must describe the existing environment. It is only against
this baseline that any significant environmental effects can be
determined." (County of Amador v. El Dorado County Water Agency, supra, 76
Cal.App.4th at p. 952; Guidelines, §§ 15125, subd. (a); 15126.2, subd. (a).) There is some merit in both of these positions.
Because the chief purpose of the EIR is to provide detailed information
regarding the significant environmental effects of the proposed project on the
"physical conditions which exist within the area," it follows that
the existing conditions must be determined, to the extent possible, in the EIR
itself. (Pub. Resources Code, § 21060.5; Environmental Planning &
Information Council v. County of El Dorado, supra, 131 Cal.App.3d at p. 354;
Galante Vineyards v. Monterey Peninsula Water Management Dist., supra, 60
Cal.App.4th at p. 1122.) On the other hand, the agency has the discretion to
resolve factual issues and to make policy decisions. If the determination of a
baseline condition requires choosing between conflicting expert opinions or
differing methodologies, it is the function of the agency to make those choices
based on all of the evidence. (Barthelemy v. Chino Basin Municipal Water
District, supra, 38 Cal.App.4th 1609, 1617.) If an EIR presents alternative methodologies for
determining a baseline condition, however, we believe CEQA requires that each
alternative be supported by reasoned analysis and evidence in the record so
that the decision of the agency is an informed one. We further find that the
EIR must set forth any analysis of alternative methodologies early enough in
the environmental review process to allow for public comment and response. This
is particularly important in a case such as this, where water issues were a
matter of widespread public concern, and where the determination of the figure
for baseline water usage dictated the density of the project. Here the draft EIR initially established a baseline of
45 acre-feet per year, based on the representation by the owners that 21 acres
was irrigated land, although the EIR acknowledged that the record contained
"no documentation" showing any substantial irrigation prior to 1997.
Furthermore, having estimated a baseline figure and having used that figure
throughout the EIR to assess the project's impacts, the EIR consultants
ultimately referred the baseline determination to the Board to be decided as a
matter of "policy." At the very end of the environmental review
process, the Board was invited to choose among various calculations compiled
from updated water meter readings on the property. But some of these figures,
although generated from recent pumping on the property, did not reflect water
actually used for irrigating the property. We conclude, as explained more fully
below, that this treatment of baseline water use violated the basic principles
of CEQA, which require that an EIR start with a description of "the
existing environment." (County of Amador v. El Dorado County Water Agency,
supra, 76 Cal.App.4th at p. 952.) Respondents argue that since there was no
documentation to support the EIR's threshold determination that the September
Ranch property was irrigated pastureland, baseline water use should properly
have been set at a figure which more closely represented water actually used
historically on the property. The evidence was indeed sparse on this subject.
There was some evidence that the property had been farmed prior to 1950. After
that time, the equestrian uses began. However, accounts from neighbors in the
area indicated that the pasturelands were not regularly irrigated during this
time. Although the Monterey Peninsula Water Management District has required
well reports since 1980, there were no reports on this property. The applicants
indicated at trial that the old well had not been used for at least 10 years
before 1990, when a new well was installed. Records starting in 1991 show a
temporary aquifer test was conducted in 1991 and produced 1.20 acre-feet. In
the following year 40.68 acre-feet was pumped. However this too was all for
aquifer testing. Over the next three years prior to the submission of the
development application in this case, water production totals were 11.58
acre-feet, 0.40 acre-feet, and 1.08 acre-feet. We have no objection to the EIR's methodology of
estimating historical water use on property where no documentation is available
to verify actual use. But estimating water used for irrigation where there was
no substantial evidence to show that the property was in fact irrigated does
not accurately reflect existing conditions. Appellant's argument that it was
entitled to use this amount of water for irrigation is not the same as actual
use. As various courts, including this one, have held, the impacts of the
project must be measured against the "real conditions on the ground
." (City of Carmel-by- the Sea v. Board of Supervisors (1986) 183
Cal.App.3d 229, 246; Environmental Planning & Information Council v. County
of El Dorado, supra, 131 Cal.App.3d at p. 354; County of Amador v. El Dorado
County Water Agency, supra, 76 Cal .App.4th at p. 952; Galante Vineyards v.
Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th at p. 1122.) We are mindful that judicial review does not allow for
a reweighing of the evidence and that "[d]eterminations in an EIR must be
upheld if they are supported by substantial evidence." (Barthelemy v.
Chino Basin Municipal Water District, supra, 38 Cal.App.4th 1609, 1620.)
However, "[a]n EIR must focus on impacts to the existing environment, not
hypothetical situations." (County of Amador v. El Dorado County Water
Agency, supra, 76 Cal.App.4th at p. 955.) And "mere uncorroborated opinion
or rumor does not constitute substantial evidence." (Guidelines, § 15384,
subd. (a).) Here it would appear that the only evidence that the terrace on the
September Ranch property was irrigated pasture was the representation of the
applicants themselves, who clearly had a vested interest in establishing a
water baseline high enough to allow the project to go forward. On this record, we must question the premise accepted
in the EIR, that pre-project water usage on the September Ranch property was
for irrigating the pastureland. Furthermore, in response to public comments
that the draft EIR's estimated water use did not reflect the actual use, the
EIR stated that "[t]he request for documentation for historic use is
referred to decision makers." We are concerned by this apparent delegation
of duty to the decision-makers to gather the necessary information to support a
determination of baseline water use. We believe CEQA requires that the
preparers of the EIR conduct the investigation and obtain documentation to
support a determination of pre- existing conditions. (See, e.g., San Joaquin
Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th
713, 727-729.) This is a crucial function of the EIR. If further investigation
would have uncovered documentary evidence regarding the historical use of water
on the property, that was the province of the EIR and not the Board. And while
the Board is entitled to accept or reject evidence or to adopt one methodology
over another, the EIR's estimate of baseline by using a standard formula for
irrigated pastureland must be based on substantial evidence that this property
could be characterized as irrigated pastureland. Even if we were to accept the EIR's initial premise
that an estimate of water used for irrigable lands was appropriate in this
case, in the absence of documentary evidence to establish actual use, the EIR's
baseline analysis reveals further, and in our view more critical, inadequacies.
After determining a "reasonable baseline" of 45 acre-feet per year,
and after using this figure throughout the draft and final EIR "for the
purposes of assessing impacts," the EIR ultimately retreated from this
estimate and deferred to the Board to determine baseline usage based on an
entirely different methodology. In the Supplemental Information and Errata,
which was submitted to the County just prior to the Board meeting, the EIR
consultants suggested for the first time that a baseline determination of water
use could be established either by using a "standard water demand factor
for irrigated pastureland," as the EIR had done, or by using documented
water meter records showing water production in recent years. The water production chart for the property showed
that after the development application was submitted in this case in the summer
of 1995, water production on the property increased substantially. In 1996 and
1997, extensive aquifer testing was done. For 1997, water production was
measured at 78.34 acre-feet. In 1998, water production was 34.04 acre-feet and
for the partial reporting year of 1999, just before the Board hearing, it was
up to 41.14 acre-feet. The Supplemental Information and Errata then suggested
several possible combinations and averages of these production numbers, one of
which, 51 acre- feet per year, was the figure eventually selected by the Board. This figure was a departure, both numerically and
methodologically, from the 45 acre-feet per year that had been developed as the
baseline figure by the consultants and had been used throughout the EIR
process. And since it first appeared in supplemental information supplied to
the County shortly before the Board convened, there was little opportunity for
public comment and meaningful response as to either the methodology or the
evidence to support the figures used. Furthermore, the supplemental information
contained little meaningful analysis as to why any of the suggested
calculations might represent a reasonable determination of baseline water usage
for irrigating this property. Indeed it appears that several of the figures on
the water production chart do not represent water actually used for irrigating
the property. For example, the 51 acre-feet per year figure selected
by the Board was an average of water meter readings in the past three years,
including 1997. The figure for 1997 is 78.34 acre-feet. However, the chart
clarifies that "[o]f this total, about 52 acre-feet were produced during a
47 day period of aquifer testing ... The remainder, 26.34 acre-feet is the
amount accepted by the MPWMD as the water production for irrigation in RY
[reporting year] 1997." (Italics added) Even though only 26.34 acre-feet
was actually used for irrigation, the EIR advised that the Board "could
accept the actual water production amount, the full 78.34 AF/yr, or deduct the amount
of water used for aquifer testing (52 AF), as requested by the MPWMD to account
for the anomaly of the aquifer testing." This reasoning is clearly faulty.
A baseline figure must represent an environmental condition existing on the
property prior to the project. There is simply no justification for using a
total of 78.34 acre-feet of water as part of a baseline calculation for this
property, when the evidence was that 52 acre-feet of this amount was pumped for
the purpose of aquifer testing and was discharged into the Carmel River. By inviting the Board to pick from an array of numbers
to determine an important aspect of the baseline environmental setting, the EIR
failed to fulfill its function of providing information and analysis of
environmental impacts. In a recent case involving a massive water project that
proposed to divert 17,000 acre-feet of water from three high Sierra lakes, the
court found the EIR's baseline analysis to be inadequate on similar facts.
(County of Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at
953.) In County of Amador, the EIR's discussion of baseline conditions
consisted of a recitation of month-end lake levels for the three lakes. It
failed to explain how those lake levels were maintained, the historical
duration and timing of the water releases, and the impacts on fishery resources
and recreational uses. The court found that the lake level figures alone were
insufficient to describe the existing water release program. The court noted
that "this is not a case involving conflicting expert opinions about
historical operation." (Id. at p. 954.) Rather the EIR simply presented
data without meaningful analysis. The court in County of Amador underscored the
"importance of an adequate baseline description, for without such a description,
analysis of impacts, mitigation measures and project alternatives becomes
impossible." (Id. at p. 953.) The court concluded that "[a]n adequate
EIR requires more than raw data; it requires also an analysis that will provide
decision makers with sufficient information to make intelligent
decisions." (Id. at p. 955; see also Guidelines, § 15151.) The EIR in this case similarly provided raw data, in
the form of recent water meter figures for the September Ranch property, and
then invited the Board to select a baseline from among several suggested
combinations of these figures. As in County of Amador, this was not a case
where the Board was called upon to perform its discretionary function of
resolving a factual dispute or choosing from conflicting expert opinions or
methodologies regarding water usage. Instead this was an arbitrary process,
involving arithmetic rather than analysis. The Board was permitted to make the
crucial determination of baseline water use by choosing from a selection of numbers,
some of which did not represent water actually used to irrigate the property.
And this occurred at the very end of the environmental review process, thus
avoiding public scrutiny and precluding the meaningful comparison of
pre-project and post- project conditions required by CEQA. This brings us to the question whether it was proper
in any event to rely on water production figures generated at the end of the
environmental review process, rather than at the beginning, to determine a
baseline figure. The relevant Guideline at the time of the environmental review
for the September Ranch project was section 15125, which provided: "An EIR
must include a description of the environment in the vicinity of the project,
as it exists before the commencement of the project, from both a local and
regional perspective." (Guidelines, former § 15125, subd. (a), italics
added.) Appellants take the italicized words to mean immediately before the
project is approved and permits are issued. Respondents contend that existing
conditions must be evaluated as closely as possible to the date the notice of
preparation of the EIR is filed, as that is the date the project is officially
commenced within the meaning of CEQA. They maintain that an EIR cannot
adequately analyze the impacts on the environment if it does not start with a
description of the physical conditions existing on the property at the
beginning of the environmental review. A subsequent amendment to section 15125 of the
Guidelines supports respondents' interpretation. Section 15125, subdivision
(a), now provides: "An EIR must include a description of the physical
environmental conditions in the vicinity of the project, as they exist at the
time the notice of preparation is published, or if no notice of preparation is published,
at the time environmental analysis is commenced. This environmental setting
will normally constitute the baseline physical conditions by which a lead
agency determines whether an impact is significant." (Italics added.)
Furthermore, section 15126.2 now provides as follows: "In assessing the
impact of a proposed project on the environment, the lead agency should
normally limit its examination to changes in the existing physical conditions
in the affected area as they exist at the time the notice of preparation is
published, or where no notice of preparation is published, at the time
environmental analysis is commenced." These amendments reflect and clarify
a central concept of CEQA, widely accepted by the courts, that the significance
of a project's impacts cannot be measured unless the EIR first establishes the
actual physical conditions on the property. (County of Amador v. El Dorado
County Water Agency, supra, 76 Cal.App.4th at p. 953; Environmental Planning
& Information Council v. County of El Dorado, supra, 131 Cal.App.3d at p.
354; City of Carmel by-the- Sea v. Board of Supervisors, supra, 183 Cal.App.3d
229.) In other words, baseline determination is the first rather than the last
step in the environmental review process. We adopt this general rule. We also agree with
appellants, however, that the date for establishing baseline cannot be a rigid
one. Environmental conditions may vary from year to year and in some cases it
is necessary to consider conditions over a range of time periods. In some
cases, conditions closer to the date the project is approved are more relevant
to a determination whether the project's impacts will be significant. (See,
Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357.)
For instance, where the issue involves an impact on traffic levels, the EIR
might necessarily take into account the normal increase in traffic over time.
Since the environmental review process can take a number of years, traffic
levels as of the time the project is approved may be a more accurate
representation of the existing baseline against which to measure the impact of
the project. (See, e . g. Fairview Neighbors v. County of Ventura (1999) 70
Cal.App.4th 238 [maximum estimated traffic was appropriate baseline].) Even in
the case before us, if the more recent water production figures could be shown
to represent a continuation of pre-project water usage, such figures might be
relevant to a determination of baseline water conditions. However, here the
more recent figures consisted primarily of aquifer testing where water was
pumped and released into the river. Water which was pumped for irrigation in
1997, 1998, and 1999 was a significantly higher amount than in the previous six
recorded years. Thus these recent figures do not appear to represent a normal
fluctuation in usage over time, as appellants suggest. Furthermore, there are sound reasons for determining
baseline water use in this particular case as of the time of the commencement
of the environmental review. Here the environmental review process spanned
three and a half years. During that time it became apparent that the water
supply for this project was a critical issue. A state water board decision
precluded a hookup with the local water company. State and local policy
restricted development which would increase pumping in the Carmel Valley basin.
And pumping tests established that the sub-basin underlying the property was
not separate from the Carmel Valley aquifer. Because any water used by the
project in excess of baseline would constitute a significant adverse impact, it
was clear that the baseline figure would dictate the amount of allowable
density for the project. Production of water on the property during the lengthy
environmental review process was controlled by the applicants. It was in their
interests to elevate water production figures in order to establish as high a
baseline as possible. While we do not speculate as to whether this occurred, we
believe water production figures generated towards the end of the environmental
review process must be regarded with some caution in these circumstances. Their
relevance to baseline conditions would depend on whether they are
representative of the amount of water historically produced for use on the
property. The better approach, however, would be to follow the general rule
expressed in the Guidelines and cases that baseline conditions are normally to
be determined as of the time environmental review is begun. This most closely
describes the environment "as it exists before the commencement of the
project." (Guidelines, former § 15125, subd. (a).) Cases cited by appellants do not support the
proposition that baseline is determined at the end rather than at the beginning
of the environmental review. In Riverwatch v. County of San Diego (1999) 76
Cal.App.4th 1428, the court found that the EIR did not need to consider a
baseline date some 12 years prior to the commencement of the project, in order
to account for previous unlawful activity by the owners that had degraded the
property. Riverwatch does not address the question raised here, whether the
baseline conditions should be established as of the beginning or the end of the
environmental review process. The court in Riverwatch did state as a general
principle that environmental impacts should be examined "in light of the
environment as it exists when a project is approved." (Riverwatch v.
County of San Diego, supra, 76 Cal.App.4th at p. 1453.) However, in context it
appears the court was simply rejecting the notion that the baseline should be
set a number of years earlier than the commencement of the current project.
Moreover, the authorities relied on in Riverwatch do not support the view that
baseline should be determined as of the date of project approval. Bloom v. McGurk
(1994) 26 Cal.App.4th 1307 did not involve preparation of an EIR but rather
addressed the question of baseline for purposes of determining a categorical
exemption from CEQA. That case in turn relied on City of Carmel by the Sea v.
Board of Supervisors, supra, 183 Cal.App.3d 229. In City of Carmel we stated
that "[i]n assessing the impact of [a] rezoning, it is only logical that
the local agency examine the potential impact on the existing physical
environment." (Id. at p. 246.) In the context of that case our meaning was
that the agency must examine the impact of the project as against the physical
conditions on the subject property, as opposed to measuring the potential
impact against a draft general plan. We said nothing expressly about whether
the existing conditions are to be determined at the beginning or at the end of
the environmental review process. However our statement in City of Carmel
clearly implies that meaningful environmental review must proceed at the outset
from a determination of the property's existing physical conditions. We believe that this is the correct interpretation of
CEQA as applied to this case. This view is supported by the courts and by the
Guidelines, and is consistent with the central function of the EIR, to inform
decisionmakers about the impacts of the proposed project on the existing
environment. (County of Amador v. El Dorado County Water Agency, supra, 76
Cal.App.4th at pp. 952-956; County of Inyo v. City of Los Angeles, supra, 124
Cal.App.3d at p. 9; Environmental Planning and Information Council v. County of
El Dorado, supra, 131 Cal.App.3d at p. 354; City of Carmel by the Sea v. Board
of Supervisors, supra, 183 Cal.App.3d at p. 246.) An EIR in which a baseline
water use determination is elastic and can be modified by the Board at the end
of the environmental review process without benefit of analysis or public
participation does not fulfill this function. If an EIR fails to include relevant information and
precludes informed decisionmaking and public participation, the goals of CEQA
are thwarted and a prejudicial abuse of discretion has occurred. (Sierra Club
v. State Board of Forestry (1994) 7 Cal.4th 1215, 1236; Fall River Wild Trout
Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 492; County of Amador
v. El Dorado County Water Agency, supra, 76 Cal.App.4th at p. 954; Pub.
Resources Code, § 21005, subd. (a).) "Our role here, as a reviewing court,
is not to decide whether the board acted wisely or unwisely, but simply to
determine whether the EIR contained sufficient information about a proposed
project, the site and surrounding area, and the projected environmental impacts
arising as a result of the proposed project or activity to allow for an
informed decision...." (San Joaquin Raptor/Wildlife Rescue Center v.
County of Stanislaus, supra, 27 Cal.App.4th at p. 713.) Based on these guiding
principles, we conclude here that the EIR was inadequate in its baseline
discussion in several respects: by failing to investigate and present evidence
to support the assumption that the pre-project use of water on the property was
for irrigation; by introducing a new methodology for baseline determination at
the end of the environmental review process without any informational
discussion or opportunity for public review; and by inviting the Board to
select a baseline among water production figures with no meaningful analysis
and no showing that the figures represented water actually used on the property
consistent with historical use. Because of these inadequacies, the Board's
decision setting baseline water use at 51 acre-feet per year was not supported
by the evidence and was an abuse of discretion. Off-site Pumping Reduction on the Berube Property Although the EIR had indicated that any increased
water pumping over baseline would have to be mitigated either by reducing the
project density or by reducing pumping elsewhere within the Carmel Valley
basin, the applicants did not identify an offsetting pumping location until
well after the comment periods had closed. In June of 1998, the attorney for
the applicants informed the County that the applicants had recently acquired
pumping rights to approximately 32 acre-feet of water per year on the 10-acre
Berube parcel. The Berube property was located further up Carmel Valley Road
approximately two miles away from the September Ranch property. The information
about the Berube parcel was contained in the Supplemental Information and
Errata, which was submitted to the Board just prior to the hearing along with
staff recommendations. It was on the basis of the identification of the Berube
parcel that staff recommended that the Board modify the failing score given to
the project by the Subdivision Evaluation Committee in the category of
water/hydrology. As a condition of approval of the project, the Board
required that the applicants reduce pumping on the Berube property in order to
offset project water demand over baseline. All that was required of the
applicants was to show proof of control of the water rights on the offset
parcel, and evidence of a deed restriction mandating reduction, subject to
approval by the MPWMD and the Director of Environmental Health. No permit would
be necessary to secure this offset mitigation. Comments received during the circulation of the draft
EIR expressed concerns about the precedent-setting impacts of using offset
water credits at another location in the Carmel Valley to mitigate increased
pumping at the site of the project. Among other things, such a policy would
take water from property capable of being irrigated for agricultural purposes.
The Monterey County Environmental Health Department commented that "if
[water credit transfers] will be used in the final EIR, then the EIR should
also analyze the precedent setting impacts throughout the valley for all
properties that are capable of being irrigated for pasture, grapes, crops
etc." The Health Department noted that it would be "crucial" to
analyze the specifics and enforcement mechanisms of any off-site pumping offset
to make sure the reduction property was situated so that there was a nexus
between the offset and the increased pumping for the project. The Health
Department urged that the site be identified as soon as possible so that it
could be analyzed for feasibility and the necessary findings could be made. In
response to these comments, the EIR agreed that there must be a
"nexus" between the impact and the mitigation. If offsite pumping
were to be used as mitigation, the reduction must be "an actual reduction
in documented current water use, not simply a reduction on potential future
pumping." After the applicants had identified the Berube
property as an offset pumping reduction site, the County's chief environmental
health officer wrote to the Planning Director. He pointed out that there had
been no discussion of this property in the EIR. He also noted that
"offsets do not necessarily provide water 'savings' " and may not be
sufficient to provide proof of a long-term water supply. The supplemental
material for the EIR provided no response and contained no further discussion
of the effects of this offsetting pumping reduction on the Berube property.
Other concerns were expressed as to the validity of the water rights on the
Berube property, and the question whether the impacts of overpumping at one
site are in fact balanced out by refraining from pumping at a different site
miles away. There was no analysis of the historic usage at the Berube property
or whether the offset would result in an actual reduction of pumping or would
simply be a " 'paper credit .' " The trial court found that the Board's approval of
this mitigation measure was not supported by the evidence because there was no
environmental analysis in the EIR of the impacts of the pumping reduction on
the Berube parcel and no analysis of the broader issues which were raised in
numerous comments as to whether this offsetting mitigation resulted in
potential cumulative growth- inducing impacts. Appellants argue that the EIR is not required to
discuss the environmental effects of mitigation measures. They contend that
substantial evidence supports the Board's determination that the pumping offset
would mitigate the impacts of any increased pumping without causing any new
significant impacts. We disagree with these contentions. An EIR is required to
discuss the impacts of mitigation measures. At the time of the environmental
review in this case, section 15126 of the Guidelines provided that "if a
mitigation measure would cause one or more significant effects in addition to
those that would be caused by the project as proposed, the effects of the
mitigation measure shall be discussed, but in less detail than the significant
effects of the project as proposed." (Guidelines, § 15126, subd. (c).) [FN7]
Furthermore, section 15126, subdivision (g), provided that the
growth-inducing impact of the proposed action must be discussed in the EIR,
including "the ways in which the proposed project could foster economic or
population growth, or the construction of additional housing, either directly
or indirectly, in the surrounding environment." [FN8] (See also San
Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27
Cal.App.4th at 734 [EIR inadequate which failed to address off-site impacts of
a project].) FN7 This same language now appears in Guidelines,
section 15126.4, subdivision (a)(1)(D). FN8 This language now appears in Guidelines, section
15126.2, subdivision (d). Appellants argue that sufficient information about the
Berube property was provided with the Errata, shortly before the Board meeting.
This documentation, however, does not make up for the lack of analysis in the
EIR. (See, Environmental Defense Fund, Inc. v. Coastside County Water District
(1972) 27 Cal.App.3d 695, 706.) As county counsel conceded at trial, there was no
discussion in the EIR of the impacts of transferring water credits
"because the issue of the water transfer came towards the end of the
process." If, subsequent to the period of public and interagency review,
the lead agency adds "significant new information" to an EIR, the
agency must issue new notice and must "recirculate" the revised EIR,
or portions thereof, for additional commentary and consultation. (Pub.
Resources Code, § 21092.1; Guidelines, § 15088.5, subd. (a); Laurel Heights Improvement
Assn. v. Regents of University of California, supra, 6 Cal.4th 1112.) The
revised environmental document must be subjected to the same "critical
evaluation that occurs in the draft stage," so that the public is not
denied an "opportunity to test, assess, and evaluate the data and make an
informed judgment as to the validity of the conclusions to be drawn
therefrom." (Sutter Sensible Planning, Inc. v. Board of Supervisors,
supra, 122 Cal.App.3d 813, 822, internal quotation marks omitted.) In light of the atmosphere of public concern about the
water shortage in the Carmel Valley, and the focussed concerns expressed in the
comments calling for an analysis of the feasibility of any specific offset
pumping site to provide actual mitigation, we believe the identification of the
Berube parcel late in the environmental review process warranted further
discussion and analysis and an opportunity for public response. Although the
Board may exercise its discretion as to the viability of a policy allowing for
off-site water credits as mitigation for increased pumping in the valley, and
as to the feasibility of the Berube property in particular for this purpose, it
must do so on the basis of information collected and presented in the EIR and
subjected to the test of public scrutiny. A revised EIR must include a
discussion of the Berube parcel, the history of water pumping on this property
and its feasibility for providing an actual offset for increased pumping on the
September Ranch property, as well as the growth-inducing effect of a policy of
offset pumping reduction in the Carmel Valley. Riparian Rights The issue whether the September Ranch property had
valid riparian rights and could utilize them to support a private water system
for the subdivision also arose late in the environmental review process and
suffers from a similar lack of analysis. During the second period for
circulation and comment the State Water Resources Control Board (SWRCB) wrote
that the applicants would need an appropriative rights permit to pump water because
"the alluvium underlying the September Ranch is part of the Carmel River
subterranean stream." The applicants then asserted for the first time in a
letter dated May 2, 1998, that the property had a riparian right, which ran
with the land and entitled them to use water from the subterranean stream
without an appropriative permit. Neither the draft nor the revised EIR had
mentioned such a right. The SWRCB responded that a valid riparian right could
be utilized for project purposes, if such a right existed, but that no
determination had yet been made as to such a right. The supplemental EIR (Volume 2) added a discussion of
riparian rights. A valid riparian right can be established if: 1) the property
is contiguous to the water course; 2) the property is within the watershed of
the water course; and 3) the riparian right has not been severed through
subdivision or separate conveyance. The supplemental EIR concluded that the
September Ranch was "at least partially contiguous to the water
course," namely the Carmel River subterranean stream flow, and that the
property was located within the Carmel River watershed. A title search
indicated, and county counsel later confirmed, that the 891-acre September
Ranch was a single lot of record. Thus there had been no severing of riparian
rights. An early deed showed, however, that September Ranch's riparian rights
may have been subordinated to a predecessor utility of Cal-Am. The supplemental
EIR reported that riparian rights entitle the owner to use "the amount of
water that can be reasonably and beneficially used on the riparian parcel"
without applying for a permit. In times of shortage a riparian owner must share
water with other riparian users, but its rights are superior to the rights of
appropriators. The supplemental EIR clarified that whether the water
right was riparian or appropriative, any increase of water use over pre-project
use would be a significant environmental impact requiring mitigation. In the
final changes and corrections to the EIR, mitigation measure 7b was added,
which required "either the assurance of a valid riparian claim or the
requirement that the applicants secure a permit for an appropriative water
right from the State Water Resources Control Board." But this mitigation
measure was not included in the conditions of approval in the Board's
resolution certifying the EIR. The trial court pointed out numerous factual and legal issues, as well as policy concerns, that the court believed remained to be resolved before any determination could be made that the property owners have riparian rights sufficient to guarantee a long term water supply for this project. Even if a riparian right were established, the court found that the approval of a private water system for a large subdivision, based on a subterranean ripa |