SCOPE v. County of Los Angeles (November 26, 2007, B189116) 157 Cal. App. 4th 149

By Maria Pracher and Misti Schmidt

The California Court of Appeal for the Second District recently issued the first appellate opinion to apply the four principles delineated by the California Supreme Court in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal. 4th 412 ("Vineyard").  These principles govern whether the water services discussion in an Environmental Impact Report ("EIR") sufficiently analyzes the availability of future water supplies.  Santa Clarita Organization for Planning the Environment, et al.,  v. County of Los Angeles, 157 Cal. App. 4th 149, Civil No. B189116 at 9 (November 26, 2007) ("SCOPE").  Briefly, the Vineyard principles are:

1. The EIR must evaluate the issue of supplying water to the land use project.  Vineyard, 40 Cal. 4th at 430-431.

2. The water supply analysis for large projects cannot be limited to the first stage of construction or the first few years of the project.  Id. at 431.

3. The availability of the future water supplies identified in the EIR must be likely rather than speculative and the EIR must analyze the factors affecting that likelihood.  Id. at 432.

4. If it is impossible to determine that future water sources will be available, the EIR must discuss alternative water sources and the associated environmental consequences.  Id.

In SCOPE, plaintiff environmental organization argued that the EIR at issue insufficiently analyzed the availability of future water supplies for a proposed residential and commercial development in Los Angeles County.  According to plaintiff, the EIR was improperly certified by the County because, under the third Vineyard principle, it relied on a water transfer agreement (the Kern-Castaic transfer) that could be affected by the ongoing litigation over the Monterey Settlement Agreement and because the Monterey Settlement Agreement did not list this transfer agreement as final or permanent.  Thus, plaintiff argued that the Kern-Castaic transfer could not be relied upon in the EIR as a permanent water source.

The court rejected this argument.  Noting that the EIR adequately disclosed the potential for the Monterey Settlement Agreement litigation to affect the Kern-Castaic transfer agreement and discussed the reasons why an adverse outcome in the litigation would not invalidate the transfer agreement.  The court examined the plaintiff’s arguments for why the Kern-Castaic transfer agreement could be invalidated by the Monterey Settlement Agreement litigation and rejected those arguments as unsupported by law or facts.  The court found that existing law and contracts support the validity of the Kern-Castaic transfer agreement regardless of the outcome of the Monterey litigation.

The court also rejected plaintiff’s claim that a letter from the Department of Water Resources (DWR) referencing the availability of a new model to assess water supply rendered the EIR inadequate.  In its letter, the DWR stated that the  new model may cause only slightly different results and the DWR found the draft EIR adequately discussed state water project reliability and the post-Monterey Agreement conditions.  Thus, the court concluded that this letter did not support plaintiff’s claims.  Additionally, the court rejected plaintiff’s argument that the EIR was inadequate because it did not discuss the factors the DWR must consider if it is required to prepare a revised Monterey Agreement EIR.  Since the Kern-Castaic agreement was not dependent on the Monterey Agreement, the court determined that such a discussion was not necessary.  In dismissing plaintiff’s claim that the EIR could not be certified until the revised EIR for the Monterey Agreement is certified, the court reiterated that the EIR’s water supply analysis was not dependent on the outcome of the Monterey Agreement litigation.

Plaintiff also argues that the EIR was improperly certified because, under the fourth Vineyard principle, the EIR should have included a discussion of alternative water sources should the Kern-Castaic transfer fail.  Relying on the language from Vineyard, the court noted that the fourth principle applies only if it is "impossible to confidently determine" whether the water source will be available.  Given its discussion under the third principle above, the court concluded that the certainty of the Kern-Castaic transfer’s validity was likely and thus it could be confidently determined that the water supply for the project will be available.  Consequently, no discussion of alternatives sources was necessary.

In sum, the court found that the EIR satisfied the Vineyard principles because the EIR discussed the water supply issue, the record contained substantial evidence demonstrating the likelihood that the water from the Kern-Castaic transfer agreement would be available for the project’s near- and long-term needs, the EIR did not improperly defer analysis to later stages, and the EIR did not rely on demonstrably illusory supplies.

For more information, please contact Maria Pracher and Misti Schmidt. Maria Pracher is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office. Misti Schmidt is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.