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v. COURT OF APPEAL, SECOND DISTRICT, DIVISION
EIGHT, B175580 NOTE: CERTIFIED FOR PARTIAL PUBLICATION* APPEAL from
a judgment of the Superior Court for the COUNSEL Law Offices
of Babak Naficy and Babak Naficy for Plaintiffs and Appellants Burke,
Williams & Sorensen and Stephen R. Onstot for Defendant and Respondent City
of Morrison
& Foerster and Anne E. Mudge for Real Party in Interest Gate King
Properties. Rossmann
and Moore, Antonio Rossmann, Roger B. Moore and David R. Owen for Amicus Curiae Planning and Conservation
League. __________________________________ BOLAND, J. SUMMARY This appeal
arises under the California Environmental Quality Act, Public Resources Code
section 21000 et seq. (CEQA).[i] The California Oak Foundation and the Santa
Clarita Organization for Planning the Environment (collectively, SCOPE)
petitioned the trial court for a writ of mandate. The petition requested the trial court to
order the City of The trial
court denied SCOPE’s petition, and SCOPE appeals, arguing that: ·
Insufficient
evidence exists to support the EIR’s conclusion that sufficient water supplies
exist for the project. ·
The
City violated its Ridgeline Preservation and Hillside Development Ordinance by
granting the project an exemption from the ordinance as an “innovative
development” alternative. ·
The EIR was defective because it did not
require adequate surveys of the site to determine the presence or absence of
several rare plant species prior to certification of the project, and otherwise
failed to require adequate mitigation measures with respect to these plant
species. We conclude
the trial court erred in approving the EIR because the section of the EIR
discussing water supplies is inadequate.
We find no other defects in the EIR, and further conclude that the City
did not violate its ridgeline preservation ordinance. FACTUAL Gate King
Properties proposed to subdivide the 584-acre project site. Gate King’s original proposal involved the
development of 170.1 acres, accommodating about 4.45 million square feet of
industrial/commercial development, with an additional 64.3 acres consisting of
rights-of-way (including public streets) and water wells. The remaining 349.6 acres were to include a
combination of slopes, trails and areas within the industrial/commercial lots
that would remain undeveloped due to the presence of large oak groves, as well
as 220.6 acres of dedicated open space.[iii] The project called for extensive grading,
affecting the primary and secondary ridgelines traversing the site, with total
earth movement of 7.24 million cubic yards.
The project as proposed also called for the removal of at least 1,709
oak trees, including two heritage oak trees.
After
circulation of a draft EIR for public review, the project was modified. As ultimately approved by the City, the site
size was reduced to 508.2 acres (75.8 acres having been donated to the
City). The buildable area of the project
was reduced to 161 acres, accommodating about 4.2 million square feet of
industrial/commercial development, and 207.6 acres of dedicated open
space. Grading was also reduced, with
earth movement totaling 5.7 million cubic yards, and the number of oak trees to
be removed was reduced by 465 trees. The City
certified the final EIR on DISCUSSION We first
describe the settled principles guiding our review in CEQA cases, and then
address each of the challenges SCOPE interposes to the adequacy of the final
EIR and to the City’s application of the ordinance governing ridgeline
preservation and hillside development. I. CEQA Principles and the Standard of
Review. A
comprehensive discussion of CEQA and the purposes and role of an EIR appears in
Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 390-393 (Laurel Heights). The Legislature intended CEQA to be
interpreted to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.
(Id. at p. 390.) CEQA describes the EIR as an informational
document. Its purpose is to provide
public agencies, and the public, with detailed information about the effect a
proposed project is likely to have on the environment; to list ways in which
the significant effects of a project might be minimized; and to indicate alternatives
to a project. (§ 21061.) Before approving a project, the lead agency –
here, the City – must find either that the project’s significant environmental
effects identified in the EIR have been avoided or mitigated, or that
unmitigated effects are outweighed by the project’s benefits. (Laurel
Heights, supra, 47 Cal.3d at p. 391, citing §§ 21002, 21002.1 and
21081.) The EIR has been described as
“the heart of CEQA,” an “environmental alarm bell,” and a “document of
accountability.” (Laurel Heights, supra, 47 Cal.3d at p. 392, internal quotations and
citations omitted.) “If CEQA is
scrupulously followed, the public will know the basis on which its responsible
officials either approve or reject environmentally significant action, and the
public, being duly informed, can respond accordingly to action with which it
disagrees.” (Ibid.) In an
action to set aside an agency’s decision under CEQA, the trial court’s inquiry
extends only to whether a prejudicial abuse of discretion has occurred. Abuse of discretion occurs if the agency has
not proceeded in a manner required by law, or if its decision is not supported
by substantial evidence. The court
passes only upon the EIR’s sufficiency as an informative document, not upon the
correctness of its environmental conclusions.
(Laurel Heights, supra, 47
Cal.3d at p. 392.) CEQA Guidelines,
which implement the provisions of CEQA, define “substantial evidence” 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.”
(Cal. Code Regs., tit. 14, § 15384, subd. (a).) Laurel
Heights cautions that an agency’s approval of an EIR may not be set aside
on the ground that an opposite conclusion would have been equally or more
reasonable. (Laurel Heights, supra, 47 Cal.3d at p. 393.) CEQA’s purpose is to compel government to
make decisions with environmental consequences in mind, but CEQA “‘does not,
indeed cannot, guarantee that these decisions will always be those which favor
environmental considerations.’” (Ibid., quoting Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263,
283.) This
court’s inquiry is the same as that of the trial court. The appellate court reviews the administrative
record independently to determine whether the City complied with CEQA. (Planning
& Conservation League v. Department of Water Resources (2000) 83
Cal.App.4th 892, 912 ( II. The Water Supply Issues. We agree
with SCOPE’s contention that the EIR must be set aside because substantial
evidence does not support the conclusion that sufficient water supplies exist
for the project. SCOPE’s challenge to
the EIR, in which amicus curiae
Planning and Conservation League joins, has two principal components: certain water entitlements relied upon by the
City were “paper” water rather than actual deliverable water; and the EIR did
not in any way attempt to quantify the impact of perchlorate contamination on
the availability of groundwater from the Saugus Formation. Although we are not persuaded the EIR’s
treatment of perchlorate contamination was insufficient, the EIR did not
adequately inform the public about other uncertainties in the water supply. To
understand the matters at issue, we must first describe the sources of water
for the Santa Clarita Valley, as well as several appellate court decisions
relevant to the water supply issues. We
then turn to the contents of the EIR, the comments elicited by the draft EIR,
the City’s responses to those comments, and finally to SCOPE’s specific
contentions. A. Water
sources and legal background. The Santa
Clarita Valley historically obtained its water supply from an underground water
basin or aquifer that is divided into a shallow level (the Alluvial Aquifer)
and a deeper layer of groundwater called the Saugus Formation. Since 1980, however, the water supply has
been supplemented with imported water to meet community water requirements. (Friends
of the The State
Water Project (the Project) was authorized in the 1950s. The Project was designed to become a complex
system of reservoirs, dams, power plants and other facilities for the storage
and delivery of 4.23 million acre-feet of water annually.[iv]
The Department of Water Resources (the
Department) operates the facilities and manages the Project. When the Project began, the Department
entered into individual long-term contracts with water suppliers throughout the
state. These contractors, including
Castaic, received entitlements to an annual amount of water, in return for
which they repay a proportionate share of the financing and maintenance of the
Project facilities. ( The
entitlements Castaic and other contractors received under their contracts with
the Department were predicated on the state’s obligation to build out the
Project so as to deliver 4.23 million acre-feet per year (AFY) to the
contractors. However, the Project has
never been completed, and the state cannot deliver 4.23 million AFY. The court in By the late
1980s and early 1990s, water supplies were severely diminished as a result of a
seven-year drought and other limitations, generating disputes among
agricultural and urban water contractors and the Department about the distribution
of the limited amount of water. ( Under the
Monterey Agreement, Castaic purchased an entitlement to 41,000 AFY of Project
water from the Kern County Water Agency and its member district (hereafter,
“Castaic purchase” or “41,000 AFY entitlement”). However: ·
Because
implementation of the Monterey Agreement would have potential adverse
environmental impacts, an EIR was required.
In September 2000, the court in ·
In
January 2002, the EIR for Castaic’s purchase of entitlement to 41,000 AFY of
Project water under the Monterey Agreement was also decertified. The EIR was decertified because it was
expressly “tiered” upon – that is, it incorporated and relied upon – the EIR
for the Monterey Agreement, which had been decertified in the ·
Although
the EIR for the Castaic purchase was decertified, the court did not enjoin
implementation of the agreement for Castaic’s purchase of the 41,000 AFY
entitlement. As a result, the 41,000 AFY
entitlement is available to Castaic during the pendency of the litigation over
the Castaic purchase EIR. ·
In
February 2003, several months before the City certified the EIR for this
project, the B. The
EIR information on water supplies. The draft
EIR for the Gate-King project was circulated in January 2002 and included, as
did the final EIR, the following observations about water supplies: ·
Castaic’s
“current total water entitlement” from the State Water Project is 95,200
acre-feet of water per year. This 95,200
AFY entitlement includes the 41,000 AFY entitlement that Castaic purchased
under the Monterey Agreement, as described above. ·
Castaic’s
State Water Project entitlement “can fluctuate from year to year based on a
number of factors, including hydrologic conditions, the status of State Water
Project facilities, construction, environmental requirements, and evolving
policies for the Bay-Delta.”[viii]
·
The
EIR relied upon Castaic’s “Urban Water Management Plan 2000” (UWMP 2000). The UWMP 2000 is a long-range planning tool
prepared for the Castaic service area.
Every urban water supplier is required by statute to prepare and adopt
such a plan as a part of its responsibility for ensuring adequate water supplies. The UWMP’s projected water usage for the
Castaic service area accounted for build-out of the City of ·
The
Castaic service area’s total entitlement, including groundwater wells and
imported water, is approximately 103,200 to 180,900 AFY during an average or
normal rainfall year, and approximately 201,100 to 279,700 AFY during a dry
year.[x] ·
The
UWMP “anticipates a projected normal/average year water usage of 75,100
acre-feet of water per year in the area.
Therefore, the area would maintain a water supply surplus of 28,100
AFY. As demand for water increases in
the future, additional water supplies are expected to be available from
[Castaic].” The 28,100 AFY surplus is
derived by subtracting projected usage of 75,100 AFY from the low-end figure
for total entitlement (imported water and groundwater) of 103,200 in a normal
rainfall year.[xi] ·
The
Gate-King project would generate demand for an estimated 386 AFY, which
represents 1.4% of the area’s current excess supply of 28,100 AFY. The EIR states that according to the Newhall
District, “adequate water supply is available to serve the water demand
generated by the proposed project,” and “impacts to water supplies are not
considered significant.”[xii] While the EIR concludes that the impact of
the project on water supply “would be less than significant without
mitigation,” it also states that “because of ongoing concerns about regional
water supplies, impacts to water supply are considered Class II, significant
but mitigable.” The EIR recommended
various water conservation features to minimize the project’s impact on
regional water supplies.[xiii] C. Comments
on the draft EIR. SCOPE’s
comments on the draft EIR asserted that the draft failed to adequately evaluate
water supply. SCOPE asserted that: ·
The
City did not review or comply with the findings in ·
The
Saugus Formation cannot be relied upon as a water supply resource until it is
remediated. SCOPE attached copies of
expert testimony from other cases and various reports relating to perchlorate
contamination and concern over its spread.
SCOPE also attached a Castaic memo on strategy to address the
contamination. SCOPE observed that
actual remediation would take “several additional years for facilities design
and land acquisition before clean water is actually produced. The Santa Clarita water agencies are
currently only pumping approximately 3000 AF per year from this source although
the water agencies have reported that they can provide 40,000 AF in [their]
Urban Water Management Plan. Again, it
is an abuse of [discretion] to rely on information which the [Planning]
Commission knows to be false.” ·
It
was imperative for the City to “do its own analysis of the water supply for the
Santa Clarita Valley to ensure that this project approval will stand,” because
the UWMP 2000 for the Santa Clarita Valley was then being litigated “due to its
over-statement of water supply and understatement of demand.” (See footnote 9, ante.) SCOPE asserted that
reliance on the UWMP 2000 for sufficiency of water supply would result in the
project approval being overturned if the UWMP litigation were successful. D. The
City’s response to SCOPE’s comments. The City’s
response to SCOPE’s comments in the final EIR was as follows: ·
As
required by statute, in January 2002 the City requested that the Newhall
District provide a water supply assessment for the proposed project. On ·
The
Newhall District assessment “indicates that water supplies available to the
District could potentially be limited by three ongoing legal challenges”
described in the assessment. The
assessment in turn stated that the Newhall District’s sources of supply were
“subject to possible limitation as a result of the following pending
litigation . . . .”
The assessment then stated that: ·
The
District relies on imported water deliveries from Castaic, which has contract
entitlements of State Water Project water totaling 95,200 AFY. Projections of water supply availability
under those entitlements “are estimated to be the delivery of 50% of the
entitlement 80% of the time.” ·
A
portion of Castaic’s State Water Project entitlements are derived from
contracts entered into under the authority of the Monterey Agreement, and: “[The Monterey Agreement] has been
challenged by the Planning and Conservation League and as a result of that
litigation further environmental assessment is going to be undertaken by the
Department of Water Resources. The
Friends of the As for SCOPE’s comments on perchlorate contamination, the
City acknowledged that: “perchlorate has been a concern
associated with groundwater quality since it was detected in four wells in the
eastern part of the Saugus Formation in 1997.
Operation of the four wells has been suspended and purveyors are
continuing to test for perchlorate in all active Alluvial and E. Appendix K. No changes were made in the draft
EIR’s analysis of water supplies, although SCOPE’s comments and the City’s
responses are a part of the final EIR.
The final EIR was circulated in October 2002, and was republished in June
2003, contemporaneously with the City’s certification of the EIR. When it was republished, it included several
additional appendices, including Appendix K, entitled “Additional Water Supply
Information.” Appendix K is a memorandum
dated ·
Referring
to Castaic’s State Water Project entitlements, Appendix K states: “In addition, the availability of the
41,000 AFY obtained from the Kern County Water
Agency . . . is not absolutely established because the EIR
prepared for its transfer was recently invalidated and decertified” by Friends I, supra, 95 Cal.App.4th 1373. ·
“In
recognition of the fact that the entire 95,200 AFY entitlement may not be
available in all years, the water supply projections contained in the 2000
UWMP . . . are based on a reduced delivery.” The estimate assumes that 59.7% of the total
entitlement (or 56,000 AFY) would be available in average-normal years, and
39.8% of the entitlement (or 37,900 AFY) would be available in dry years. ·
“[P]erchlorate
has been a concern with respect to groundwater quality since it was detected in
four wells in the eastern part of the Saugus
Formation . . . in 1997.
Operation of the four wells has been suspended and purveyors are
continuing to test for perchlorate in all active Alluvial and ·
“Several
treatment technologies for the removal of perchlorate from water are currently
available. The DHS has issued a domestic
water supply permit to deliver treated drinking water from contaminated wells
to customers in the ·
In
2001, total water demand in the Santa Clarita Valley was 76,769 AF, essentially
unchanged from demand in 2000. The year
2001 demand was met by a combination of 41,413 AF of local groundwater and
35,356 AF of State Water Project water.
The UMWP 2000 projects water demand in the average/normal year to
increase to about 102,500 AF by 2020. ·
The
386 AFY water demand associated with the Gate-King project represents about
0.5% of the total current demand in the Santa Clarita Valley. ·
The
primary uncertainty with respect to local water supply is the availability of
Castaic’s State Water Project entitlement.
If the 41,000 AFY entitlement purchased from ·
“However,
even without the additional 41,000 AFY, [Castaic] retains an entitlement of
54,200. Because this amount exceeds 2001
[Castaic] demand for [State Water Project] water by 18,844 AF [actual Project
water delivered was 35,356 AF], the 386 AFY increase in water demand associated
with the proposed project would be well within the current entitlement.” ·
“Finally,
the UWMP identifies several additional sources of water (water recycling,
purchase of additional [State Water Project] supplies, desalination) that are
expected to meet water demand projections over time. Since the proposed industrial park project’s
water demand is within that projected in the 2000 UWMP, would not exceed the
current [State Water Project] entitlement, and would not significantly affect
groundwater resources, water supplies appear to be adequate to serve the
proposed development.” F. The
trial court’s analysis. The trial
court rejected SCOPE’s contention that the EIR improperly relied on Castaic’s
entitlement to the 41,000 AFY and failed to discuss the pending
litigation. The court found the EIR’s
conclusion – that sufficient actual water supply was available to serve the
project and therefore water supply impacts were not significant – was based on
substantial evidence, namely: ·
Newhall
District’s ·
Even
without the 41,000 AFY that is subject to litigation, Castaic “retains reliable
entitlement to 54,200 AFY, which exceeds [Castaic’s] demand for [State Water
Project] water by 18,844 AFY.” [As noted
above, the area’s 2001 demand for water (76,769 AF) was met with local
groundwater plus 35,356 of Project water (65% of its 54,200 entitlement, or 37%
of its 95,200 entitlement).] Thus, the
demand created by the project (386 AFY) “will be well within the current
entitlement even without the 41,000 AFY.”
·
The trial court also observed that perchlorate contamination
was “discussed extensively in the EIR” (citing the evidence submitted by SCOPE,
plus the City’s one-paragraph response), and that Newhall District’s water
supply assessment acknowledged the concern about perchlorate, but nonetheless
did not conclude that supplies would be insufficient. G. Analysis
and conclusion: The EIR did not
adequately inform the public
about uncertainties in the water supply. SCOPE
asserts that the trial court’s finding that the EIR’s water supply analysis was
adequate is based on several legal errors.
We agree in part, and treat SCOPE’s claims in turn. 1. The
EIR’s treatment of Castaic’s 41,000 AFY entitlement
was inadequate. SCOPE’s
primary challenge to the adequacy of the EIR’s analysis of the water supply is
that the City, without analysis or discussion, relied on Castaic’s 41,000 AFY
entitlement to State Water Project water – 43% of its total Project entitlement
– despite the fact that the EIR for Castaic’s purchase of the entitlement was
decertified in Friends I, supra, 95
Cal.App.4th 1373. Gate King, on the
other hand, contends the EIR’s discussion of water supply was legally adequate,
including its discussion of the uncertainties related to the 41,000 AFY
transfer. According to Gate King, the
EIR “directly addresses” this issue, acknowledges the uncertainty, “but
concludes that it is likely that the 41,000 AFY will continue to be
available.” We are
compelled to agree with SCOPE. Contrary
to Gate King’s assertion, the EIR does not “directly address” the issue, which
arose when Friends I was decided in
January 2002, contemporaneously with circulation of the draft EIR. The final EIR contains an inadequate
discussion – in fact, no discussion at all – of the uncertainty surrounding the
transfer of the 41,000 AFY entitlement.
The text of the EIR does not mention the decertification of the EIR for
the Castaic purchase, and does not discuss the fact that entitlements are not
really entitlements, but only “paper” water.
( We cannot
agree that the City’s response “directly addresses” the uncertainty created by
the decertification of the EIR for the Castaic purchase. It also does not conclude, as Gate King contends,
that “it is likely that the 41,000 AFY will continue to be available.” The City’s response to SCOPE’s comments is
completely devoid of any direct discussion of the 41,000 AFY, as is the Newhall
District’s water supply assessment on which the City relies. The adequacy of supply absent the 41,000 AFY
entitlement is not discussed, and the means of meeting the demand for water in
the absence of the 41,000 AFY entitlement is not analyzed. We can only assume the City “conclude[d] that
it is likely that the 41,000 AFY will continue to be available,” because the
point is not discussed. Such an
assumption, however, is impermissible, as it is antithetical to the purpose of
an EIR, which is to reveal to the public “the basis on which its responsible
officials either approve or reject environmentally significant action,” so that
the public, “being duly informed, can respond accordingly to action with which
it disagrees.” (Laurel Heights, supra, 47 Cal.3d at p. 392.) As another court observed, “[t]o be adequate,
the EIR must include sufficient detail to enable those who did not participate
in its preparation to understand and ‘meaningfully’ consider the issues raised
by the proposed project.” (SCOPE, supra, 106 Cal.App.4th at p. 721;
see also Concerned Citizens of Costa
Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935 (Concerned Citizens) [“[t]o facilitate
CEQA’s informational role, the EIR must contain facts and analysis, not just
the agency’s bare conclusions or opinions”].)
This standard is not met in the absence of a forthright discussion of a
significant factor that could affect water supplies. The EIR is devoid of any such
discussion. Gate King
points out that while the EIR for Castaic’s purchase of the 41,000 AFY
entitlement was invalidated, the Friends
I court did not set aside the contract or otherwise affect Castaic’s actual
use of the disputed 41,000 AFY entitlement, pending preparation of a new
EIR. The reality of the water supply
situation in the Santa Clarita Valley, Gate King says, is that the 41,000 AFY
has been transferred, is available for use, and is being used, despite the
decertification of the EIR. Gate King is
correct on the facts, but is mistaken as to their import. While the “reality” is that water under the entitlement
is being used,[xv] the
question is whether the entitlement should be used for purposes of planning
future development, since its prospective availability is legally
uncertain. Although this decision must
be made by the City, the EIR is intended to serve as an informative document to
make government action transparent.
Transparency is impossible without a clear and complete explanation of
the circumstances surrounding the reliability of the water supply.[xvi] This case
bears a number of similarities to SCOPE,
supra, 106 Cal.App.4th 715, which found that the water services portion of
the EIR was inadequate: “Here the draft EIR gives no hint
that [State Water Project] entitlements cannot be taken at face value. It is only in response to comments and
submissions by project opponents such as SCOPE that the EIR obliquely
acknowledges that the entitlements may not be all they seem. Instead of undertaking a serious and detailed
analysis of [State Water Project] supplies, the EIR does little more than dismiss
project opponents’ concerns about water supply.
Water is too important to receive such cursory treatment.” (SCOPE,
supra, 106 Cal.App.4th at p. 723.) The circumstances in this case are strikingly similar to
those in SCOPE, so far as the 41,000
AFY entitlement is concerned. The draft
EIR gave “no hint” that State Water Project entitlements cannot be taken at
face value. When SCOPE pointed this out
in its comments, the City did “little more than dismiss project opponents’
concerns about water supply.” (Ibid.)
The City merely (1) referred to the Newhall District’s water supply
assessment, which said Castaic’s entitlements totaled 95,200 AFY, with
availability of water under the entitlements projected at 50% of the entitlement
80% of the time; and (2) stated that water supplies “could potentially be
limited” by three ongoing legal challenges, which were mentioned but not
discussed. Without a discussion of the
nature of the limitations, in particular the 41,000 AFY, it is impossible to
know the contours of the potential limitation on the water supplies. We
recognize that Appendix K to the final EIR acknowledges that “the availability
of the 41,000 AFY . . . is not absolutely established”
because the EIR prepared for its transfer was invalidated. Further, Appendix K states that the “primary
uncertainty” with respect to the local water supply is the availability of the
41,000 AFY entitlement. Indeed, Appendix
K states that if the 41,000 AFY is not available, “water supplies may be
insufficient to meet the projected increase in demand through 2020.” However, Appendix K is too little and too
late, for multiple reasons. As stated
in SCOPE, information “scattered here
and there in EIR appendices,” or a report “buried in an appendix,” is not a
substitute for “a good faith reasoned analysis in response.” (SCOPE,
supra, 106 Cal.App.4th at pp. 722, 723.)
We are troubled by the fact that the only discussion in the EIR of the
uncertainty created by the decertification of the EIR for the Castaic purchase
appears in an appendix added to the final EIR shortly before
certification. The seriousness of water
supply issues, as reflected in SCOPE’s comments, merits discussion in the text
of the EIR, where it is most readily accessible. At a minimum, the text of the EIR should
refer to the appendices that contain the relevant discussion. Nonetheless, if Appendix K’s discussion were
adequate, we might overlook the fact it is relegated to an appendix that is not
mentioned in the text of the EIR. But
the discussion is not adequate. Appendix K
does little more than acknowledge that, without the 41,000 AFY entitlement,
water supplies may be insufficient.
However, as stated in SCOPE,
“[t]he final EIR’s acknowledgement that there ‘could be a deficit of supply’
does not cure the defect”[xvii]
(SCOPE, supra, 106 Cal.App.4th at p.
723), as no discussion exists from which to judge the likelihood of the deficit
or alternate sources of supply to meet such a deficit. The EIR “must contain facts and analysis, not
just the agency’s bare conclusions or opinions.” (Concerned
Citizens, supra, 42 Cal.3d at p. 935.)
Moreover, the very next sentence of Appendix K contains the misleading
statement that, even without the 41,000 AFY, Castaic retains an entitlement
(54,200) that exceeds Castaic’s 2001 demand for State Project Water by 18,844
AF, so that the project’s demand of 386 AFY “would be well within the current
entitlement.” Appendix K fails to add,
however, that the actual availability of the entitlement is estimated at “50%
of the entitlement 80% of the time,” a condition that would have resulted
in a deficit, not a surplus, of supply in 2001 in the absence of the 41,000 AFY
entitlement. (See discussion in part
II.G.2., post.) In short,
neither the text of the EIR nor its appendices contain a proper analysis of the
impact of the availability vel non of
the 41,000 AFY. As in SCOPE, “[w]ithout such information, the
general public and its responsible officials cannot make an informed decision
on whether to approve the project.” (SCOPE, supra, 106 Cal.App.4th at p.
724.) Consequently, the final EIR fails
in its function as an informational document on the water issues. Gate King
insists there was substantial evidence of adequate water supplies, pointing to
the Newhall District water supply assessment, and to the fact that the UWMP
2000 projections were based on reduced entitlements, namely 59.7% in
average/normal years and 39.8% in dry years.
This evidence, however, does not address the point in dispute – the use
of the disputed 41,000 AFY as part of the base upon which to calculate reduced
entitlements. Gate King also points to
other documents in the administrative record:
the UWMP 2000, the Newhall District’s 2001 Masterplan, and the 2001 and
2002 Santa Clarita Valley Water Reports.
Of these documents, only the last two documents report the Friends I decision invalidating the EIR
for the 41,000 AFY entitlement.
Moreover, while these documents are contained in the administrative
record, they are not found in the EIR.
(See SCOPE, supra, 106
Cal.App.4th at p. 723 [“[i]t is not enough for the EIR simply to contain
information submitted by the public and experts. Problems raised by the public and responsible
experts require a good faith reasoned analysis in response”; “[t]he requirement
of a detailed analysis in response ensures that stubborn problems or serious
criticism are not ‘swept under the rug’”].) Finally, at
oral argument Gate King observed that, even if the 41,000 AFY entitlement were
discontinued, contingency plans exist for alternative sources of water, such as
short-term water exchanges, desalination, and additional groundwater
pumping. The EIR, however, does not
analyze or quantify these alternative sources in connection with the
uncertainty of the 41,000 AFY entitlement.
In the text of the EIR, these sources are mentioned, in a description of
Castaic’s capital improvement program, as funded activities “to achieve water
supply reliability . . . .” (see footnote 8, ante).
Similarly, Appendix K observes that, to the extent projected water
supplies may be insufficient to meet demand, Castaic’s long-term capital
improvement program includes funding to provide for such activities over
time. Appendix K’s discussion of the
adequacy of the water supply without the 41,000 AFY entitlement, however,
merely observes that “the UWMP identifies several additional sources of water
(water recycling, purchase of additional [State Water Project] supplies,
desalination) that are expected to meet water demand projections over time.” These generalities, without details or
estimates concerning the amount of water the programs might make available, are
not a proper substitute for a discussion which allows “those who did not
participate in [the EIR’s] preparation to understand and ‘meaningfully’
consider” the issue at hand. (SCOPE, supra, 106 Cal.App.4th at p.
721.) In sum, no
analysis was provided of the adequacy of the water supply in light of the
uncertainty flowing from the decertification of the EIR for the Castaic
purchase. This absence of
discussion and analysis undermines the informational function of the EIR for
the Gate-King project and requires its decertification. |