• Court of Appeal Issues Decision Affecting Water Supply Assessments
  • December 18, 2008 | Author: Roderick E. Walston
  • Law Firm: Best Best & Krieger LLP - Walnut Creek Office
  • On November 19, 2008, the First Appellate District handed down the first published court decision to rule on the substantive provisions of SB 610 (Water Code § 10910 et seq.) since its enactment in 2001.  In O.W.L. Foundation et al. v. City of Rohnert Park et al., Case A114809 (2008) the court ruled that water suppliers have “substantial discretion” in determining how to measure groundwater sufficiency in preparing and adopting a Water Supply Assessment (“WSA”).  At issue in the case was whether the groundwater sufficiency analysis in a WSA prepared and adopted by the City of Rohnert Park (“City”) complied with applicable provisions of SB 610.  By way of background, WSAs must be prepared for certain sizable development “projects” as defined in Water Code section 10912 that are subject to CEQA review.  

    SB 610 requires that if the water supply identified to serve a proposed project includes groundwater, the WSA must include specific information and analysis regarding groundwater supplies available to the water supply agency.  Once a WSA is prepared and adopted by the water agency, the WSA must be incorporated into the CEQA document where the lead agency then determines, based on the entire record, whether sufficient water supplies exist to serve the project. 

    O.W.L. Foundation et al. v. City of Rohnert Park et al.

    In City of Rohnert Park, the City, as the local retail water provider, prepared a WSA analyzing the sufficiency of water supplies to serve six different projects that were contemplated in the WSA.  After the WSA was adopted, but before it was incorporated into the CEQA document, plaintiffs challenged the legal adequacy of the WSA’s groundwater analysis on various grounds.  The trial court agreed with plaintiffs and invalidated the WSA.  In this significant decision, the Court of Appeal reversed.

    At least three key holdings are central to the Court’s decision. 

    1. As a preliminary matter, the Court distinguished this case on narrow grounds from the decision reached in California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464 (“CWIN”).   In CWIN, the Court of Appeal held that a WSA was “an interlocutory and preliminary step in the EIR process” and not “final” for purposes of judicial review.  Thus, the CWIN Court ruled that the legal adequacy of a WSA can only be challenged as part of the CEQA litigation.  While the City of Rohnert Park Court generally endorsed the result reached in CWIN, it ruled in this particular instance that the WSA could be reviewed prior to and separate from the CEQA challenge.
    2. The Court established a broad standard for the methodology that a water agency may employ to analyze groundwater supplies for purposes of preparing a WSA under SB 610.  As the Court noted, Water Code section 10910(f)(5) “does not specify a particular methodology for a sufficiency analysis” and therefore “affords substantial discretion to the water supplier and its experts to select a methodology appropriate for assessing groundwater sufficiency for a proposed project.” 
    3. The Court determined that the City did not abuse its discretion in deciding not to analyze groundwater pumping by all parties in the entire basin.  Rather, the Court upheld the City's decision to focus the WSA analysis around the City’s groundwater production activities. 

    The City of Rohnert Park decision is a significant development in the ever-evolving field of water supply analyses.  And it underscores the important role that WSAs play in the planning process.