In a ruling issued May 31, 2006, the Sonoma County Superior Court invalidated a water supply assessment prepared by the City of Rohnert Park for a number of residential and commercial developments planned within the City. The case, O.W.L. Foundation v. Rohnert Park City Council, is one of the first to challenge a water supply assessment directly, and to test the provisions of Senate Bill 610 requiring water suppliers and lead agencies to evaluate available water for new projects before or as part of the California Environmental Quality Act (“CEQA”) review process. The ruling by Judge Knoel Owen effectively placed several specific plan developments on hold ­ including approximately 4,000 residential homes and 5 million square-feet of commercial buildings ­ until the water supply assessment can be revised.

Enacted in 2001, Senate Bill 610 (codified in California Water Code sections 10910, et seq.) requires that water suppliers or, as appropriate, local governments prepare a so-called “water supply assessment” for certain projects (e.g., residential projects of more than 500 dwelling units or shopping centers with more than 500,000 square feet of floor space, among other projects). The assessment must evaluate whether the water system’s “total projected water supplies . . . will meet the projected water demand associated with the proposed project,” together with existing and other planned future uses over a twenty-year horizon. In the event the proposed project relies on groundwater to meet its water demands, the assessment must include a “description of any groundwater basin or basins from which the proposed project will be supplied.” If the identified groundwater basins have not been adjudicated by the courts, the assessment must also include information concerning whether the California Department of Water Resources “has identified the basin or basins as overdrafted or has projected that the basin will become overdrafted if present management conditions continue.” Separately, Senate Bill 610 calls for a groundwater sufficiency analysis “from the basin or basins from which the proposed project will be supplied to meet the projected water demand associated with the project.”

To fulfill its obligations under Senate Bill 610, the City approved a “City-wide Water Supply Assessment” in January 2005. The Assessment evaluated the City’s projected water demands at full buildout of its General Plan in conjunction with the water demands of six individual development projects. Thus, instead of approving individual water supply assessments for each project during its respective environmental review process (as is typical of local governments), the City took the initiative and, through advanced planning, sought to combine these analyses in one document. To meet projected demands, the Assessment relied on groundwater wells from the Santa Rosa Plain Subbasin, which is a part of the Santa Rosa Valley Groundwater Basin. After analyzing historical and projected pumping and recharge rates, the Assessment concluded that the City’s groundwater supplies would meet the projected demands of the six projects and other planned groundwater uses (at full buildout, about 2,577 acre-feet annually) over the required twenty-year horizon.

Immediately following the City’s approval of the Assessment, the O.W.L. Foundation, a local environmental group concerned with land and water resource issues, filed suit claiming the Assessment did not satisfy Senate Bill 610’s requirements. The trial court agreed, and on May 31, 2006, ruled that the Assessment failed in two respects. First, the Assessment did not, according to the court, adequately evaluate the projected future demands of the “basin or subbasin” in that it failed to estimate future pumping from other users in both the Santa Rosa Plain Subbasin, as well as the Santa Rosa Valley Groundwater Basin as a whole. Second, in evaluating the extent or threat of overdraft for the basin, the Assessment failed to apply the correct definition of “overdraft” as the term is defined by the Department of Water Resources.

The gravity of the court’s ruling is not insignificant. Evaluating the size and extent of a particular groundwater basin, the relationship of that basin to other underground waters, and the total extent of existing and probable future groundwater pumping (as the court suggests is required under Senate Bill 610) will arguably result in a commitment of financial resources, time, and technical analysis that is seldom mandated in the CEQA review process. And even if that technical analysis is completed, there is no guarantee in the illusive world of water rights that the projections of future supply and demand will ultimately ring true. On the other hand, continued development without rigorous and comprehensive forward planning as Senate Bill 610 envisioned may leave drought-prone communities without adequate long-term water supplies. If this decision is a signal of things to come, water suppliers and lead agencies should anticipate the courts to apply greater scrutiny towards groundwater sufficiency analysis.

The parties are awaiting a final judgment from the court, which may further explain the court’s reasoning. Once final judgment is entered, the City will have a limited time within which to appeal. If appeal is taken, this case will likely be the first opportunity for the appellate courts to weigh in on the procedures and substantive requirements of Senate Bill 610 and groundwater assessments generally. With groundwater playing a larger role in securing adequate long-term water supplies, this case is worth watching.

 
Christian Marsh
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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