• Water Supply Assessment Required for a Facility That Would Use Only One Acre-Foot of Water per Year
  • June 24, 2010 | Authors: Marie A. Cooper; Geoffrey L. Robinson; Barbara J. Schussman
  • Law Firm: Bingham McCutchen LLP - San Francisco Office
  • In Center For Biological Diversity v. County Of San Bernardino (May 25, 2010), San Bernardino County approved an open air composting facility in the Mojave Desert. The EIR concluded the project would have significant air quality impacts.

    The court first faulted the county for failing to study an alternative that would have enclosed the composting facilities inside a building, reducing air quality impacts. The EIR evaluated the costs associated with an enclosed facility then being constructed in Rancho Cucamonga, and concluded that an enclosed facility would cost 28-41 times the cost of the open air facility. The court ruled this evidence insufficient because it was “based on costs associated with the development of only one enclosed composting facility by a public entity in Rancho Cucamonga.” The court noted that other enclosed facilities were operating, and faulted the EIR for failing to consider whether, “[i]f enclosed facilities are gaining in popularity, perhaps they are economically feasible, in that a reasonable profit can be made despite increased capital costs.” On this basis, the court appears to have concluded substantial evidence did not support rejection of the enclosed facility alternative.

    The court then addressed the requirements for a Water Supply Assessment, an analysis that evaluates whether sufficient water supplies are in place to support existing and future planned development over a 20-year period. Water Supply Assessments are required for certain large projects, including those that propose more than 500 dwelling units, employ more than 1,000 persons, or have more than 650,000 square feet of floor area in an industrial, manufacturing or processing plant. The court acknowledged that the project would use only 1.1 acre-feet of water per year (enough for two or three homes), but noted that the Water Code requires an assessment for a “processing plant. . .occupying more than 40 acres of land.” Turning to a dictionary definition, the court ruled that a “processing plant” is “the land, as well as buildings, machinery and fixtures, used in carrying out a trade or industrial business,” and held that the 160-acre outdoor composting facility fell within this definition. It then rejected arguments that the Water Code requirements apply only to plants involving large scale buildings, projects that demand more water or projects that would be served by a public water system.

    The court may have been influenced by the fact that the county accepted the trial court decision invalidating the project approval on these grounds, and that only the developer had appealed.