The Court of Appeal for California’s Sixth Appellate District upheld a Mitigated Negative Declaration for a proposed Monterey County subdivision against allegations that Salinas Valley groundwater supplies would be inadequate to serve the project over the long term.
The decision in Landwatch Monterey County v. County of Monterey, Sixth District Court of Appeal Case No. H028659 (filed February 21, 2007), provides valuable guidance to cities, counties and real estate developers on the kinds of data and technical analyses needed to show adequate long-term groundwater supplies in a region with a history of groundwater overdraft and resulting seawater intrusion that is spotlighted by an ardent anti-growth movement.
More specifically, the new decision reviews the appropriateness of a land-use agency’s determination to prepare a Mitigated Negative Declaration (“MND”) instead of a full-blown Environmental Impact Report (“EIR”). The rationale underlying the court’s determination that the MND was appropriate highlights the importance of substantiating environmental impact analyses with technical data, including expert opinion, rather than relying on conclusory, generalized allegations with superficial appeal that wilts on close scrutiny.
In June 1999, the Chapins filed an application for a 28-lot subdivision on a 143-acre parcel in Monterey County. In September 2000, Monterey County adopted a moratorium on new development due to water supply concerns. The Chapins coordinated with the Monterey Planning and Building Inspection Department (“Department”) and submitted numerous technical studies analyzing the hydrological impacts of their project. In 2000, the Department drafted an Initial Study describing potentially significant impacts of the project’s use of groundwater to meet its water needs, estimated at 10.2 acre-feet per year. A revised Initial Study prescribed mitigation in the form of storm water runoff collection ponds and groundwater percolation pits. Mitigation also included payment of a water impact fee to the County. The revised Initial Study analyzed the effects of these mitigation measures and concluded that they would reduce the project’s hydrological impacts to a less-than-significant level.
Several commenters criticized the Initial Study and doubted the efficacy of the mitigation measures and long-term availability of groundwater to supply the project. In response, the project proponent had additional tests and analyses performed by experts to demonstrate the reasonableness of the groundwater recharge expected to result from the new percolation ponds. The additional analytical work was described in reports that, again, concluded that the prescribed mitigation would ensure an adequate groundwater supply for the project and would prevent the project from contributing to cumulative groundwater overdraft problems in the geographic area affected by the project’s water use. Additional public comments continued to doubt the technical studies and recited pessimistic accounts of local and regional groundwater conditions, followed by assertions that the cumulative impacts of the proposed project would be significant. In response, the project proponent commissioned yet another report analyzing the new comments and citing site-specific facts to lay the allegations and fears to rest.
The County filed its Mitigated Negative Declaration, or MND, on October 10, 2001, which generated additional public comments. In December 2003, the Initial Study was again revised and recirculated, but the hydrological impact analysis remained the same: The project, after mitigation, would not have a significant adverse environmental impact. The Department held several hearings in January and February 2004, where commenters reiterated general concerns about hydrological impacts. Finally, the Department approved the MND and project with mitigation.
Landwatch Monterey County appealed the decision to the County Board of Supervisors. The Board denied Landwatch’s appeal. Landwatch then filed a petition for a writ of mandate in Monterey County Superior Court (Case No. M69299). The Superior Court denied the petition and Landwatch appealed. Landwatch’s chief arguments were: (1) an EIR was required because there was a fair argument that groundwater would be significantly impacted and the project did not have an adequate long-term water supply; (2) the County failed to verify the accuracy of technical impact analyses provided by the applicants; (3) fees were not appropriate mitigation; and (4) the project did not comport with the County’s General Plan.
Even In Monterey County, A Fair Argument That A Project Will Cause A Significant Impact Requires More Than Generalized Allegations Of Water Supply Problems
Monterey County has a reputation for very high land values and a vigorous and well-organized anti-growth movement that has identified CEQA litigation targeting tight water supplies as a principal tool for limiting growth. Under the current hyper-litigious atmosphere, the idea of using a negative declaration to approve a Monterey County development project reliant upon Salinas Valley groundwater seems almost novel.
Despite Monterey County’s rarified atmosphere, the court, here, held that to force preparation of an EIR, Landwatch had to “demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impacts.” To decide whether there was no substantial evidence supporting a fair argument that the project would have significant groundwater impacts, the court acknowledged that it must “assess both the evidence in favor of the significant environmental effect and the evidence to the contrary.”
In its assessment, the court repeatedly compared the technical and site-specific factual information supporting the County’s MND against the general comments submitted by Landwatch. The court concluded that Landwatch raised only non-technical, generalized concerns. The court described Landwatch’s submissions as “broad and general statements” that did not raise substantial evidence that the “technical data and analyses about the adequacy of detention/recharge mitigation may be wrong” or even that the project might pose a significant adverse impact on the groundwater supply. The court found that Landwatch’s reliance on statements by other commenters also was inadequate, because those commenters’ “lack of pertinent qualifications to evaluate hydrological and hydrogeological issues” rendered their “views, and the assumptions behind them, lay speculation on matters that require qualified technical expertise.”
Addressing concerns about the adequacy of a water supply for the project, the court again focused upon the substantive factual detail required to raise a fair argument in the face of strong technical data and analyses cited by the lead agency. Again dismissing the generalized comments relied upon by Landwatch, the court stated that “general evidence of a sub-area wide overdraft and prior County-wide moratorium have no tendency to discredit the specific technical analyses and conclusions reached by qualified experts in site-specific studies or the testimony that there is an adequate water supply for the project.” Again, the court concluded that “Landwatch cites no evidence or qualified expert testimony” in contrast to the extensive expert testimony and analyses supporting the County’s conclusions. The court determined that Landwatch simply was not qualified to comment on hydrology and that “[i]ts argument here is simply speculation,” as Landwatch provided no expert to properly interpret and comment on the facts.
Lead Agencies May Properly Rely On Impact Analyses Provided By Applicants
Landwatch also challenged the County’s reliance on information provided by the project proponents, claiming that the County failed to independently verify the accuracy of the technical analyses and reports provided by various consultants on groundwater impacts. The court rejected the argument, holding that CEQA did not require the County to conduct independent, duplicative tests to verify the information, so long as the County exercised its independent judgment over the information in accordance with Public Resources Code Section 21082.1.
Mitigation Fees For Cumulative Impacts Pass CEQA Muster When Linked To Specific Mitigation Programs
Landwatch further challenged the County’s imposition of a $1,000 per lot mitigation fee to address potentially significant groundwater impacts. Landwatch claimed the fees would only go toward studies and not accomplish physical mitigation for the project’s use of groundwater. The court noted, first, that the project’s percolation/recharge ponds, alone, provided sufficient mitigation to avoid significant impacts. Second, the court found that the record showed the County had adequate plans to use the mitigation fees for more than studies and, in fact, showed that the fees would help carry out an existing project to augment regional water supplies and thereby eliminate overdraft and seawater intrusion (i.e., the Salinas Valley Water Project). The court held that such fees were appropriate mitigation because they were linked to physical solutions.
Agency Afforded Great Deference In Determining General Plan Consistency
Landwatch’s final challenge was that the County’s project approval violated water supply policies in its own General Plan. The court accorded great deference to the County in interpreting its policies and rejected Landwatch’s argument, holding that the County could reasonably conclude the project was consistent with General Plan water policies aimed at ensuring adequate water supplies. The County’s finding that the project was consistent with the General Plan policies was not “arbitrary, capricious, or unsupported by substantial evidence.”
This decision should help cities, counties and real estate developers understand the kinds of technical information useful in assessing the adequacy of groundwater supplies to support new development projects in regions generally experiencing groundwater overdraft. More generally, the decision confirms that a fact-based decision against preparing a full EIR will be upheld against conclusory allegations that lack substantive factual support. Further, the decision underscores the value of performing a series of detailed impact analyses in response to repeated rounds of comments to ensure that a reviewing court sees and understands the substantial evidence supporting a lead agency’s CEQA impact significance determinations.
CEQA practice continues to become ever more technically complex, generating negative declarations that read like EIRs of old. Against that backdrop, the court here admonished that “CEQA does not require the generation of unnecessary paperwork in the form of an EIR . . . where it cannot be fairly argued on the basis of substantial evidence that a project may have a significant adverse impact.”
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