Article Legal Notes Michael ZischkeBradley Brownlow

State Supreme Court Provides Guidance on Water Supplies and CEQA

Michael Zischke and Bradley Brownlow are attorneys specializing in the California Environmental Quality Act and land use law with the San Francisco office of Cox Castle & Nicholson. Zischke is co-author of the treatise Practice Under the California Environmental Quality Act, published and updated annually by California Continuing Education of the Bar. He can be reached at Brownlow can be reached at

Last February, the California Supreme Court issued its long-anticipated ruling in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova,1 a case that has significant implications for water-strapped cities considering the approval of large development projects.

At issue in Vineyard was a city’s authority to approve an environmental impact report (EIR) for a large development project where the required long-term water supply was uncertain. The lawsuit was initiated against the Sunrise Douglas development project being constructed in Rancho Cordova. The project was approved in 2002 for development on about 6,000 acres of land and, when finished, would include more than 22,000 homes. In a lengthy ruling that will affect many California cities, the Supreme Court invalidated the EIR for Sunrise Douglas because of uncertainties surrounding the project’s water supplies, but also articulated a rule of law that will assist other cities in planning and approving their own large development projects.

Short-term water supplies for the Sunrise Douglas project have been shown to be readily available. A nearby well field, known as the North Vineyard Well Field, would supply about a quarter of the water needed for the project. Although the court agreed that the EIR for Sunrise Douglas failed to alert the public in a timely way to potential impacts that use of the well field might have on the nearby Cosumnes River and its salmon population, it held that the availability of the well field supplies was adequately dis closed, as were the groundwater impacts of withdrawing the anticipated supply. Furthermore, the court determined that the Sunrise Douglas EIR adequately informed decision-makers about the methods and impacts of delivering the well field supply to the project and the uncertainties about this supply’s long- term viability in the face of competition from other groundwater users. However, the court found that this was not the case for the project’s long-term water supplies (other sources available if the future well field supply is inadequate or no longer available), even though a great deal of work had already been completed to ensure long-term water supplies for Sunrise Douglas and the greater Sacramento region.

Water Forum’s Proposal a Source

A group of public and private stakeholders known as the Water Forum, which includes the City of Sacramento, Sacramento County, water providers, business groups and environmental organizations, had developed a long-term master plan to supplement regional water supplies through water conservation, conjunctive use programs and increased use of the American River. The Water Forum proposal was extensively evaluated in a separate EIR, which looked at the impacts of supplying water to the growing region over a 30-year period. Thus, the availability of these long-term supplies has been well known for several years.

The EIR for Sunrise Douglas concluded that, based on implementation of the Water Forum plan, there would be sufficient long-term water supplies available for the project. The plaintiffs objected to this conclusion, arguing that unless long-term water supplies are essentially guaranteed, it is a violation of California law to approve a land use plan for significant new development.

Addressing Uncertain Long-Term Water Supplies

The Supreme Court disagreed with the plaintiffs that water supplies must be essentially guaranteed. The court acknowledged that water planning is by nature an uncertain business and that no guarantees are available. Accordingly, a city need only demonstrate a “reasonable likelihood” that a projected water source will be available to supply a development project. Thus, a city may approve new large developments in the face of uncertain long-term water supplies as long as the city:

  • Evaluates alternative long-term supplies for those developments;
  • Acknowledges any uncertainties associated with those alternative long-term water supplies; and
  • Identifies any environmental impacts associated with securing and delivering those alternative supplies.

Provided this analysis is contained in the EIR, the court stated that a city may (but is not required to) impose a mitigation measure that requires stopping new development if anticipated long-term water supplies do not materialize.

Having articulated this rule, the Supreme Court held that the EIR for Sunrise Doug las did not comply with the requirements of the California Environmental Quality Act (CEQA), the law governing the preparation of EIRs. In addition to containing a number of internal inconsistencies, the court held, it was not entirely clear that the EIR was relying upon the Water Forum documents to support its conclusions about the adequacy of long-term water supplies. Thus, according to the court, the ordinary public may have been misled about the adequacy of water supplies for the project. The court also found fault with the EIR’s statements that certain impacts associated with the Water Forum plan would be evaluated in the future. In the court’s view, all the impacts of a large development project must be evaluated up front before the project is approved. Finally, the court found that the Sunrise Douglas EIR did not adequately inform decision-makers about the long-term cumulative impact of development on water supplies because it failed to show at least an approximate long-term sufficiency in total supply to serve projected growth.

Clearing Up Confusion

The Vineyard decision caps a decade of litigation over the planning of water supplies for new development in California. Beginning in the mid-1990s, California courts began issuing a long series of conflicting decisions making it nearly impossible for the state’s cities and water agencies to determine who is responsible for water supply planning. Although the Legislature attempted to clarify the situation with two water supply planning laws that became effective in 2002 (SB 610 and SB 221), it left open some of the thornier questions of this debate. In Vineyard, the Supreme Court has answered some of these questions and attempted to reconcile the provisions of SB 610 and SB 221 with those of the CEQA.

But significant questions remain. Under an earlier decision in County of Amador v. El Dorado County Water Agency,2 water agencies are subject to legal challenge if they prepare water supply plans before a city adopts plans for new growth. This puts cities in a box. When they try to plan for new growth, water agencies may not have provided them with the tools to evaluate the supplies needed for that growth. This situation is contrary to what the Legislature intended when it passed SB 610 and SB 221. The court’s failure to address this issue underscores the importance of cooperation between cities and their water suppliers when planning for new growth, with the goal being the closely coordinated preparation of city general plan documents and water supplier urban water management plans. By working with water suppliers to ensure that these two planning documents are prepared on complementary timetables, cities will have far greater opportunities to incorporate into city CEQA documents the timely water supply data contained in applicable urban water management plans, thus reducing the need for additional city analysis of future water supply options.

Satisfying CEQA Requirements

Although Vineyard is clear that CEQA does not require a showing that water supplies for a project are guaranteed to be available when needed, it is equally clear that a lead agency must use its best efforts to find out and disclose all that it reasonably can about the likelihood and impacts of serving a project with projected water supplies. This informative duty requires CEQA documents to contain facts from which to evaluate the pros and cons of supplying the needed amount of water to a project, an analysis of the likelihood of the projected water supplies being available to serve the project, and an analysis of the impacts associated with delivering a projected water supply to a project. If an EIR reasonably describes the benefits and detriments of delivering a particular water supply to a project, reasonably determines that such supply is likely to be available when needed and analyzes the impacts of delivering such supply to the project, then the EIR can rely on the identified water supply without additional discussion, as was the case with the well field supply in Vineyard.

Where uncertainties make it impossible to confidently identify the future water sources necessary to serve a project on a long-term basis, an EIR’s water supply analysis may satisfy CEQA if it:

  • Acknowledges the degree of uncertainty involved;
  • Discusses the reasonably foreseeable alternatives, including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases; and
  • Discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.

As the California Supreme Court stated, “[t]he ultimate question under CEQA? is not whether an EIR establishes a likely source of water, but whether it adequately addresses the reasonably foreseeable impacts of supplying water to the project.” With Vineyard, the court has provided cities a roadmap for preparing environmental review documents that satisfy this fundamental informational purpose of a CEQA water supply analysis.


[1] Vineyard Area Citizens for Responsible Government v. City of Rancho Cordova, 40 Cal. 4th 412 (2007).

[2] County of Amador v. El Dorado County Water Agency, 76 Cal. App. 4th 931(1999).

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

This article appears in the September 2007 issue of Western City
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