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Court Clarifies Thresholds Triggering Water Supply Assessment Laws June 15, 2010 by Jennifer T. Buckman jbuckman@somachlaw.com |
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In Center for Biological Diversity v. County of San Bernardino, the Fourth District Court of Appeal clarified how to apply the statutory criteria to determine whether the project requires a Water Supply Assessment (WSA) under SB 610 (codified at Wat. Code, §§ 10910, et seq.). Background The case involved a proposal to develop and operate a project referred to as the Hawes Composting Facility, which “would compost biosolids [derived from human waste] and green material [derived from plants] to produce agricultural grade compost.” The facility would be open-air. The site of the proposed project was an undeveloped 160-acre parcel in the Mojave Desert; the project proposed to construct an office space of approximately 720 square feet, parking lots, a scale, an area for screening and finished product storage, and a 2,000-gallon, double-walled, above-ground diesel fuel tank. The project site does not have any utility service, and the facility would rely on chemical toilets for use by its employees and guests. When operating, the facility would have the capacity to compost approximately 200,000 tons per year (182,000 metric tons) of biosolids, which could serve the green waste needs of most of the region. Holdings The key issue in this case was whether the proposed composting facility qualified as a “project” within the meaning of Water Code section 10912, subdivision (a), even though there would not be any water service to the site. If a proposed activity is subject to CEQA and also qualifies as “project” within the meaning of Water Code section 10912, a WSA must be prepared. The primary purpose of a WSA is “to ensure that local land use authorities will thoroughly consider the availability of water supplies before approving major new developments.” The WSA is required to include specified information related to the water supplies available to serve the project, and whether those supplies will be reliable through fluctuating hydrologic conditions including multi-year droughts. (See Wat. Code, § 10910(c)(4).) The WSA must be included in any EIR or Negative Declaration prepared for the project (Wat. Code, § 10911(b)), so that this water supply information can be considered by the decisionmakers when they are evaluating the environmental impacts of the project. Water Code section 10912, subdivision (a), defines the term “project” as any of the following: (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. (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. The court found that the proposed Hawes composting facility qualified as a “project” under subdivision (a)(5) because it is a “processing plant” conducted on more than 40 acres of land. The defendants argued that subdivision (a)(5) did not apply because the buildings would not occupy more than 40 acres of land. As defendants interpreted the statute, subdivision (a)(5) would apply only to “large-scale buildings located on large square footage or plots of land.” The court disagreed, finding that “plant” included the land as well as the buildings, so that subdivision (a)(5) is triggered if the land involved in the project is more than 40 acres. The court noted that the Legislature had established separate criteria for square footage of the buildings and for acreage, and both of these criteria must be given effect. Consequently, the court held that “an open-air composting facility is a ‘project’ within the meaning of subdivision (a)(5) of section 10912 if it meets the acreage threshold, even if the only structures on site are small ones.” Defendants then argued that projects under subdivision (a)(5) do not require a WSA unless they would also demand at least as much water as a 500 dwelling unit project. In other words, defendants claimed that subdivision (a)(5) – and presumably all of the other criteria set forth in subdivisions (a)(2) through (a)(6) – are limited by subdivision (a)(7), which defines WSA “projects” to include any project “that would demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling unit project.” Under defendants’ proposed interpretation of the statute, no WSA would be required for any of the projects identified in subdivisions (a)(2) through (a)(6) unless those projects would use at least as much water as would be used by 500 new dwelling units. The court squarely dismissed this argument, noting that “subdivision (a)(5) of section 10912 ... contains no limitation pertaining to water usage.” This means that WSAs must be prepared for projects that meet the statutory criteria set forth in subdivisions (a)(2) through (a)(6), regardless of the amount of water those projects will actually use. Of course, it should be relatively simple to prepare WSAs for projects that will generate sparse water demand. Finally, the court rejected the defendants’ contention that the plaintiff had failed to present the issue of the water supply assessment to the County of San Bernardino before it approved the project. A previous case had established that WSAs can only be challenged as part of litigation on the CEQA document, and plaintiffs in CEQA cases are required to “exhaust their administrative remedies” by raising the issues to the approving agency before they can bring suit. Here, the plaintiff cited portions of the administrative record showing that commenters questioned whether the EIR adequately addressed water supply for the project before the County approved it. Although commenters did not identify the lack of WSA as a deficiency in the EIR, they did raise “water supply issues” during the administrative process. The court found this was sufficient for plaintiff to exhaust its administrative remedies so that its suit could proceed. Conclusion and Implications The likely significance of the Center for Biological Diversity decision is that courts will liberally interpret the statutory thresholds that require preparation of WSAs. Agencies would be well-advised to evaluate the project carefully to determine whether potentially it satisfies any one of the statutory criteria, even if the project will not be served by any water connection. If so, it may be prudent to prepare a WSA and include it in the EIR or Negative Declaration for the project. For further information please contact Jennifer T. Buckman at jbuckman@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
