• Court of Appeal Rejects Water Supply Analysis for Proposed Development Project
  • September 21, 2011 | Author: Paeter E. Garcia
  • Law Firm: Best Best & Krieger LLP - Riverside Office
  • Yesterday, the Fifth District Court of Appeal ruled that a water supply assessment (WSA) and environmental impact report (EIR) prepared by the County of Madera for a proposed development project failed to comply with the “full disclosure” requirements of the California Environmental Quality Act (CEQA). The decision reflects an increasingly rigid standard for demonstrating water supply sufficiency under CEQA.

    In Madera Oversight Coalition, Inc. v. County of Madera (2011 Cal. App. LEXIS 1187) plaintiffs challenged the certification of an EIR for the Tesoro Viejo project, a proposed development of 5,190 residential units and related commercial, retail, office, public and light industrial uses on 1,579 acres near the San Joaquin River in southeastern Madera County. Among other CEQA deficiencies, the court concluded that the WSA and the EIR did not provide full disclosure of relevant information related to water supply because the analyses ignored contrary information and failed to discuss whether a recent legal decision would affect the availability and reliability of proposed water supplies.

    Based on the project description, a WSA was required to be prepared under Water Code section 10910 and included in the EIR. According to the WSA and the EIR, the water demands of the project would be met with surface water delivered from the San Joaquin River under a contract with the United States Bureau of Reclamation. On the one hand, the court recognized that the WSA was supported by an opinion letter from a distinguished expert in the water field. The opinion letter addressed a variety of legal and other issues relating to the contractual supply and concluded that it could be used to serve the project. Nevertheless, the court pointed to other “uncertainties” surrounding the proposed use of that supply and concluded that the WSA and EIR failed to disclose and analyze that information in violation of CEQA. Specifically, the administrative record contained a letter from the Bureau of Reclamation indicating that the proposed municipal and commercial uses of the supply would require a contractual amendment. In addition, a recent trial court decision had invalidated the water supply analysis for a nearby project that relied upon the same type of contractual supply.

    Because neither of these issues were addressed in the WSA or the EIR, the court determined that the water supply analysis for the project did not provide a good-faith effort at full disclosure of relevant information. According to the court, “omitting or ignoring contrary information is not the way to produce an adequate informational document.”