Water is scarce in California. There has been perpetual litigation over water rights since the earliest days of city planning and development due to the tug of war between local governments, farmers, hydroelectric power generators, and watershed conservationists. These interests are compounded by the state’s now seemingly endless drought.
In light of this contentious balancing act, the Legislature concluded with the Governor’s signature that certain projects must prepare a Water Supply Assessment to document the amount of water the project will require and analyze available water sources. (See Pub. Resources Code, § 21151.9; Wat. Code, § 10910(a)-(b).) Pursuant to Water Code section 10912(a) and CEQA Guidelines section 15155(a), proposed projects that include the following level of development must prepare a Water Supply Assessment:
(1) A proposed residential development of more than 500 dwelling units;
(2) A proposed shopping center or business establishment employing more than 1,000 persons or having more than 500,000 square feet of floor space;
(3) A proposed commercial office building employing more than 1,000 persons or having more than 250,000 square feet of floor space;
(4) A proposed hotel or motel, or both, having more than 500 rooms;
(5) A proposed industrial, manufacturing, or processing plant, or industrial park planned to house more than 1,000 persons, occupying more than 40 acres of land, or having more than 650,000 square feet of floor area;
(6) A mixed-use project that includes one or more of the projects specified in this subdivision; or
(7) A project that would demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling unit project.
Water Supply Assessments must address not only short-term water needs, but also long-term demands of the project due to construction and occupation or use. (Wat. Code, § 10910(c)(3)-(4); Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 434 (Vineyard).) While some analyses under CEQA may be properly deferred for later stages of a large project through the use of tiering, this is not the case for Water Supply Assessments. “[T]he future water sources for a large land use project and the impacts of exploiting those sources are not the type of information that can be deferred for future analysis.” (Vineyard, supra, 40 Cal.4th at p. 431.)
While future sources of water for a project must be identified and analyzed, they need not be secured with complete certainty for long-term water demands of a large project. Where uncertainties inherent in long-term land use and water planning render it impossible to identify future water sources, an EIR may satisfy CEQA where it (1) acknowledges the degree of uncertainty involved; (2) discusses the reasonably foreseeable alternatives, including alternative water sources and curtailing the development if sufficient water is not available for later phases; and (3) discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact. (Vineyard, supra, 40 Cal.4th at p. 434.) Even so, as the project goes through successive planning stages, more certainty is needed.
In sum, Water Supply Assessments must forecast the water use for the lifetime of a development and must realistically analyze where the water will come from. Certainty is not demanded, but an honest assessment of possible sources and their likelihood is required, with explicit acknowledgement of where uncertainty does exist.
In Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991, the First District Court of Appeal upheld the State Water Resources Control Board’s (“Board”) approval of a policy to maintain instream flows of Northern California coastal...
In 1994, the City of San Diego (City) certified an EIR and approved a 665-acre mixed-use development plan. In 2008, the City was approached by a developer who wished to build condominiums on the last remaining open space within that...