*152 Opinion
In
Santa Clarita Organization for Planning the Environment v. County of Los Angeles
(2003)
After remand, the County of Los Angeles (County) revised and recertified the West Creek EIR. Santa Clarita Organization for Planning the Environment (SCOPE) again challenges the water services portion of the EIR. This time, SCOPE focuses on the EIR’s analysis of a water transfer agreement and remediation costs for perchlorate contamination of water wells. The trial court denied SCOPE’S petition for writ of administrative mandate.
After the trial court denied SCOPE’S petition, our Supreme Court decided
Vineyard Area Citizens for Responsible Growth, Inc.
v.
City of Rancho Cordova
(2007)
FACTS
Background
In the 1950’s, the Legislature and the voters approved the State Water Project (SWP). It was designed to deliver 4.23 million acre-feet of water annually. It is managed by the Department of Water Resources (DWR).
The DWR contracted to deliver water to water agencies throughout the state. The contracts entitle the agencies to specified amounts of water calculated on the designed capacity of the SWP. Only half of the SWP was constructed. The completion of the SWP was an expectation that has not grown beyond a hope. There is no reasonable expectation that the original plan will ever be completed. This leaves a vast difference between the amount of water to which the local agencies are entitled, and the amount of water the SWP can actually deliver.
*153 A drought in the 1990’s highlighted the disparity between water entitlements and actual water. Agricultural and urban agencies disputed how shortfalls in water delivery would be allocated. The interested parties met in Monterey, and produced the “Monterey Agreement.”
Under the Monterey Agreement, the DWR and the contracting water agencies agreed to a statement of 14 principles. One principle provided for the permanent sale of water among agencies. The Castaic Lake Water Agency (Castaic) purchased 41,000 acre-feet per year (afy) from the Kern County Water Agency. Castaic serves the Santa Clarita Valley area, and the 41,000 afy constitutes over 40 percent of the 95,200 afy available to Castaic.
The Monterey Agreement scuttled the term “entitlement” to describe the amount of water the SWP has contracted to deliver to local water agencies. Instead, the agreement uses the term “Table A Amount.” Table A of the agreement lists the contracting agencies and the amount of water the SWP has contracted to deliver. The change is not substantive.
In
Planning & Conservation League v. Department of Water Resources
(2000)
On July 22, 2002, the parties to the PCL litigation that decertified the Monterey Agreement EIR entered into a settlement agreement approved by the Sacramento County Superior Court. The settlement agreement requires the DWR as the lead agency to prepare a new EIR for the Monterey Agreement. The settlement agreement acknowledges that certain water transfers listed in attachment E to the settlement agreement are final, and the parties agree not to challenge those transfers. The Kem-Castaic transfer is not listed in attachment E. Instead, the settlement agreement provides:
“Acknowledgement and Agreement Regarding Kem-Castaic Transfer. With respect to . . . the Kem-Castaic Transfer, the Parties recognize that such water transfer is subject to pending litigation in the Los Angeles County Superior Court following remand from the Second District Court of Appeal (See *154 Friends of the Santa Clara River v. Castaic Lake Water Agency,[ supra,]95 Cal.App.4th 1373 [116 Cal.Rptr.2d 54 ] . . . ; review den. April 17, 2002). The Parties agree that jurisdiction with respect to that litigation should remain in that court and that nothing in this Settlement Agreement is intended to predispose the remedies or other actions that may occur in that pending litigation.”
In 2004, Castaic certified a revised EIR for the Kem-Castaic transfer. This EIR is not tiered on the Monterey Agreement EIR. SCOPE’S opening brief states that Castaic’s EIR is being challenged in Los Angeles County Superior Court by environmental groups.
West Creek
West Creek is a proposed mixed residential and commercial development in the Santa Clarita Valley area of northern Los Angeles County. The project includes 2,545 housing units, 180,000 square feet of commercial retail space and 46 acres of community facilities. The County served as the lead agency in preparing the EIR for the project. The project developers are The Newhall Land and Farming Company and Valencia Corporation (hereafter collectively Newhall).
SCOPE challenges the County’s certification of the West Creek EIR. The trial court denied SCOPE’S petition for a writ of administrative mandate. We reversed on the ground that the EIR’s evaluation of the availability of the water supply was inadequate.
(Scope I, supra,
The County revised the water supply analysis, and recertified the EIR. SCOPE challenges the water supply analysis in the recertified EIR. This time it opposes the 41,000 afy Kem-Castaic water transfer.
The recertified EIR states that Castaic’s total maximum SWP water allocation is 95,200 afy. The Kem-Castaic transfer accounts for 41,000 afy of that. The EIR acknowledges that the EIR for the Monterey Agreement and the original EIR for the Kem-Castaic transfer were decertified.
With regard to the status of the Kem-Castaic transfer, the EIR states:
“The [Kem-Castaic] transfer of SWP Table A Amount was the type of water transfer that fell within the provisions of the Monterey Agreement. As stated above, under the Monterey Agreement, certain SWP agricultural contractors agreed that 130,000 AF of their Table A Amount could be *155 transferred to urban contractors. The [Castaic] 41,000-AF acquisition was a part of the 130,000 AF of SWP Table A Amount, which has been transferred under the Monterey Agreement.
“. . . The Monterey Agreement provides ... for those transfers by the participating SWP contractors, thus facilitating transfers of Table A Amounts from agricultural to urban SWP contractors. As stated above, the environmental documentation for the Monterey Agreement has been decertified. However, the . . . legal proceedings (Planning and Conservation League v. Department of Water Resources[, supra,]83 Cal.App.4th 892 [PCL litigation]) did not invalidate ... the Monterey Agreement or enjoin[] either the Monterey Agreement or further implementation of the Monterey Agreement.
“In addition, the subsequent Settlement Agreement in the PCL litigation did not invalidate or otherwise enjoin the Monterey Agreement.
“Even in the absence of the Monterey Agreement, [Castaic’s] permanent acquisition of an additional 41,000 AF of SWP Table A Amount could occur under existing SWP water supply contract provisions, subject to appropriate environmental review.
“Nothing in the existing SWP water supply contracts, or applicable law, prohibit such water transfers with or without the Monterey Agreement. The Monterey Agreement simply provides a specific vehicle for accomplishing transfers of SWP Table A Amounts from agricultural to urban SWP contractors; the amendments under the Monterey Agreement are not the exclusive means by which that Amount may be transferred. In support of that fact, in 1981 (almost 15 years before the Monterey Agreement), the entire SWP Table A Amount of the Hacienda Water District was permanently transferred to the Tulare Lake Basin Water Storage District, pursuant to an agreement approved by DWR.
“The acquisition could proceed as a water transfer under existing law. See, e.g., Water Code §§ 382, 383 (authority for transferring surplus water) and Water Code §§ 1745, et seq. (authority for transferring non-surplus water). The Kern County Water Agency has reaffirmed its willingness to allow transfers of up to 130,000 AF of SWP table A Amounts under pre-Monterey Agreement conditions and/or under the terms of the Settlement Agreement. . . .
“Finally, [Castaic] is not a party to the pending Monterey Agreement litigation (Planning Conservation League v. Department of Water Resources[, supra,]83 Cal.App.4th 892 ). Although not a party, an adverse final judgment invalidating the Monterey Agreement could affect [Castaic’s] completed *156 acquisition of the 41,000 AF, which could in turn impair [Castaic’s] supply of SWP water through its contracts with DWR and other SWP contractors. Nevertheless, [Castaic] believes that an adverse outcome in the Monterey Agreement litigation is not likely to adversely affect [Castaic’s] water supplies over the long-term because (a) [Castaic] believes that such a result is unlikely to ‘unwind’ executed and completed agreements with respect to the permanent transfer of SWP water amounts; (b) existing SWP water supply contract provisions allow such transfers (without the need for the Monterey Agreement); and (c) existing law enables [Castaic] to enter into contracts outside the context of the Monterey Agreement.”
The EIR also discloses that there is perchlorate contamination in six water wells that will comprise part of the water service for West Creek. The EIR identifies remediation measures, but does not identify any source of funding for those measures.
DISCUSSION
I
Newhall contends the doctrine of law of the case bars SCOPE’S Kem-Castaic transfer arguments.
Where an appellate court states in its opinion a principle or mle of law necessary to its decision, that principle or mle becomes the law of the case.
(Clemente v. State of California
(1985)
But our former opinion in this case {Scope I) stated no principle or rale of law bearing on the adequacy of the West Creek EIR’s discussion of the Kem-Castaic transfer. Newhall attempts to turn silence into positive effect by citing section 21005, subdivision (c). The subdivision requires that our opinion discuss all the alleged grounds for noncompliance with CEQA. Newhall concludes that because we did not discuss the Kem-Castaic transfer in Scope I, we approved the transfer.
Newhall cites no authority, however, for the proposition that not discussing an issue as required by section 21005, subdivision (c), transforms that issue into law of the case. In
Friends, supra,
Moreover, we discussed all issues raised in
Scope I.
SCOPE mentioned the Kem-Castaic transfer in its opening brief, but SCOPE did not raise the transfer as an issue. In fact, Newhall argued that we could not consider
Friends,
the decision that decertified the Kem-Castaic transfer EIR, because it occurred after the County approved the West Creek project. Newhall pointed out that once a project is approved, new information does not require reopening the approval.
(Scope I, supra,
II
Newhall contends SCOPE waived its perchlorate contamination arguments by failing to appeal them. Newhall argues SCOPE’S claim is waived because it is essentially identical to that denied by the trial court in the first challenge to the project’s EIR.
But SCOPE’S first challenge to the project’s EIR concerned disclosure of the extent of perchlorate contamination of local water wells. SCOPE did not appeal the trial court’s denial of that challenge. Here SCOPE is not challenging the EIR’s disclosure of the extent of perchlorate contamination. Instead, it is challenging the mitigation measures suggested by the EIR. That issue is not substantially identical to the issue raised in the first challenge. There has been no waiver.
Ill
We now consider SCOPE’S challenge to the West Creek EIR. An EIR approved by the appropriate governmental agency is presumed adequate, and
*158
the party challenging the EIR has the burden of showing otherwise.
(Barthelemy v. Chino Basin Mun. Water Dist.
(1995)
In evaluating an EIR for CEQA compliance, we must adjust our scrutiny to the nature of the alleged defect.
(Vineyard, supra,
Where the alleged defect is that the agency has failed to proceed in a manner provided by CEQA, our review is de novo.
(Vineyard, supra,
IV
SCOPE challenges the adequacy of the EIR’s water supply analysis as it relates to the Kem-Castaic transfer.
Recently, our Supreme Court in Vineyard articulated four principles for analysis of future water supplies under CEQA.
“First, CEQA’s informational purposes are not satisfied by an EIR that simply ignores or assumes a solution to the problem of supplying water to a proposed land use project. Decision makers must, under the law, be presented with sufficient facts to ‘evaluate the pros and cons of supplying the amount of water that the [project] will need.’ [Citation.]” (Vineyard, supra, 40 Cal.4th at pp. 430-431.)
“Second, an adequate environmental impact analysis for a large project, to be built and occupied over a number of years, cannot be limited to the water supply for the first stage or the first few years. While proper tiering *159 of environmental review allows an agency to defer analysis of certain details of later phases of long-term linked or complex projects until those phases are up for approval, CEQA’s demand for meaningful information ‘is not satisfied by simply stating information will be provided in the future.’ [Citation.]” (Vineyard, supra,40 Cal.4th at p. 431 .)
“Third, the future water supplies identified and analyzed must bear a likelihood of actually proving available; speculative sources and unrealistic allocations (‘paper water’) are insufficient bases for decisionmaking under CEQA. [Citation.] An EIR for a land use project must address the impacts of likely future water sources, and the EIR’s discussion must include a reasoned analysis of the circumstances affecting the likelihood of the water’s availability. [Citation.]” (Vineyard, supra,40 Cal.4th at p. 432 .)
“Finally, where, despite a full discussion, it is impossible to confidently determine that anticipated future water sources will be available, CEQA requires some discussion of possible replacement sources or alternatives to use of the anticipated water, and of the environmental consequences of those contingencies. [Citation.] The law’s informational demands may not be met, in this context, simply by providing that future development will not proceed if the anticipated water supply fails to materialize. But when an EIR makes a sincere and reasoned attempt to analyze the water sources the project is likely to use, but acknowledges the remaining uncertainty, a measure for curtailing development if the intended sources fail to materialize may play a role in the impact analysis. [Citation.]” (Vineyard, supra,40 Cal.4th at p. 432 .)
The West Creek EIR does not simply ignore or assume a solution to the problem of supplying water to the project. It identifies specific water sources, including the Kem-Castaic transfer. Nor is the EIR’s water supply analysis limited to the first stage or the first few years of the project. The EIR analyzes the Kem-Castaic transfer as part of the permanent supply for the entire project.
SCOPE’S concerns center on the third principle articulated in
Vineyard,
that “the future water supplies identified and analyzed must bear a likelihood of actually proving available . . . .”
(Vineyard, supra,
SCOPE challenges the EIR’s conclusion that an adverse outcome in the Monterey Agreement litigation is unlikely to affect Castaic’s water supplies over the long term. The EIR supports this conclusion by stating that an adverse outcome in the Monterey Agreement litigation is unlikely to “unwind” existing agreements for permanent transfer of SWP water amounts, and that existing law and contracts allow transfers without the need for the Monterey Agreement.
*160 SCOPE argues the EIR fails to disclose that the Kem-Castaic transfer is not final and permanent. SCOPE points out that the Kem-Castaic transfer is not included among the water transfers listed as final and permanent in the Monterey Settlement Agreement.
But the Monterey Settlement Agreement makes it clear that the Kem-Castaic transfer is not listed among the final transfer agreements because its EIR is subject to pending litigation in the Los Angeles Superior Court. (Citing
Friends, supra,
In
California Oak Foundation v. City of Santa Clarita
(2005)
In contrast, here the EIR discloses that the Monterey Agreement litigation makes the Kem-Castaic transfer legally uncertain. The EIR states that a judgment invalidating the Monterey Agreement could affect Castaic’s acquisition of the 41,000 acre feet of water. The EIR concludes, however, that as a practical matter an adverse outcome in the Monterey Agreement litigation is unlikely to “unwind” the transfer agreement. Contrary to SCOPE’S argument, this conclusion is supported by reasoned analysis. The EIR points out that the Kem-Castaic transfer is intended to be permanent, and that the transfer can be valid even without the Monterey Agreement.
SCOPE argues the Monterey Agreement is necessary to validate the Kem-Castaic transfer because all transfers of SWP water require the DWR’s consent. SCOPE cites no authority that expressly requires the DWR’s consent for water transfers. Instead, SCOPE reasons the DWR’s consent is required because it controls the SWP facilities necessary for delivery of the water. Assuming DWR’s consent is necessary, SCOPE cites no authority that the consent must come through the Monterey Agreement. In fact, the EIR discloses that the transfer of surplus and nonsurplus water is authorized by statute. (Wat. Code, §§ 382, 383, 1745 et seq.) The EIR also notes that at *161 least one Table A Amount of water was permanently transferred with the DWR’s consent almost 15 years prior to the Monterey Agreement.
Quite aside from the Monterey Agreement, the legislative policy of this state is to facilitate water transfers. (See Wat. Code, §§ 475, 480 et seq.) SCOPE points to no evidence whatsoever that the DWR has any inclination to disapprove the Kem-Castaic transfer even if the Monterey Agreement is ultimately invalidated.
SCOPE points to a letter from the DWR to Castaic dated July 30, 2004. The letter is in an appendix to the West Creek EIR. The letter states that the DWR staff has reviewed the draft EIR for the Kem-Castaic transfer and found that the document “adequately and thoroughly discusses the proposed project and its impacts,” and provides a good discussion of the relationship between the Kem-Castaic transfer and the current Monterey Agreement process. The letter also states that the DWR is using a new model to assess the potential impacts of Table A transfers in preparing the revised Monterey Agreement EIR. It acknowledges that Castaic used an earlier model to analyze the effect of the Kem-Castaic transfer. It states that the use of the new model “may cause slight changes in results, which may lead DWR to different conclusions than the conclusions made by [Castaic] in the current EIR.” Nevertheless, the letter states Castaic’s draft EIR adequately discusses SWP reliability and pre- and post-Monterey Agreement conditions.
SCOPE argues the West Creek EIR is deficient in that it fails to include or discuss information that a new water model may lead the DWR to different conclusions than those made by Castaic and its draft EIR. But the letter describes any possible change in result as “slight.” The letter does not state that the slight change in results will probably lead to different conclusions; it says only that it “may” lead to unspecified different conclusions. It is highly improbable that a slight change in results will lead to radically different conclusions. In fact, the letter praises the draft EIR’s discussion of the proposed project and its impacts. The information contained in the letter adds nothing substantial to West Creek’s EIR.
SCOPE argues the EIR is devoid of any factual discussion of the impacts of the PCL decision on the West Creek project. But the EIR discloses that a final judgment invalidating the Monterey Agreement could impair Castaic’s supply of SWP water. The EIR goes on to state that such a result is unlikely because the Kem-Castaic transfer can be validated outside the Monterey Agreement. SCOPE cites no authority for the proposition that the West Creek EIR must discuss the factors the DWR will be required to consider in preparing a revised Monterey Agreement EIR. The Kem-Castaic transfer is not dependent on the Monterey Agreement. Such a discussion is not necessary for informed decision making or public participation.
*162
SCOPE cites
Vineyard, supra,
West Creek’s EIR satisfies the third principle of analysis stated in
Vineyard.
The record contains substantial evidence demonstrating a reasonable likelihood that water from the Kem-Castaic transfer will be available for the project’s near- and long-term needs. (See
Vineyard, supra,
SCOPE argues that West Creek’s EIR is deficient because it fails to analyze the project’s water supply in the absence of the 41,000 afy Kem-Castaic transfer. When first published, Vineyard’s fourth principle was slightly different than the one stated in the subsequent modified opinion. Principle four then stated that an EIR requires analysis of replacement or alternative water sources where “a full discussion leaves some uncertainty regarding actual availability of the anticipated future water sources . . . .” The fourth principle in the modified version of Vineyard allows slightly more flexibility in determining the issue of available future water sources. It requires analysis of replacement or alternative sources only if it is “impossible to confidently determine” that anticipated future water sources will be available.
Here West Creek’s EIR acknowledges there is at least some legal uncertainty about the Kem-Castaic transfer. The EIR states in part: “An adverse final judgment invalidating the Monterey Agreement could affect [Castaic’s] completed acquisition of the 41,000 AF, which could in turn impair [Castaic’s] supply of SWP water through its contracts with DWR and other SWP contractors.”
Some would argue it is certain that the outcome of litigation is seldom certain. But whatever the outcome of the PCL litigation, it is highly unlikely it will affect the Kem-Castaic water transfer. The water is now available, and for years has been available for the project under executed agreements. The recertified EIR notes that the Kem-Castaic transfer can legally occur without the Monterey Agreement. Suffice it to say, however the Monterey Agreement *163 litigation is eventually decided, the Kem-Castaic transfer will likely not be affected. Per the fourth principle, we can confidently determine that the water will be available.
V
SCOPE contends West Creek’s EIR is deficient in that it fails to discuss the impact of the lack of funding to remediate perchlorate contamination of local water wells. SCOPE has no quarrel with the EIR’s discussion of perchlorate contamination of local wells. Its contention is limited to the lack of funding for remediation measures.
In addition to SWP water, two local aquifers will serve as part of the project’s water supply, the Alluvial Aquifer and the Saugus Aquifer. SCOPE argues there are 67 wells owned by water companies in these aquifers and an undisclosed number of private wells. SCOPE points to evidence that the estimated cost of remediation is $500,000 per well. No source of funding is identified in the EIR to pay for the equipment necessary for remediation.
SCOPE relies on
Federation of Hillside & Canyon Associations v. City of Los Angeles
(2000)
Here, although water agencies may have 67 wells, only six of them have been identified as being contaminated with perchlorate. Unlike the city in Federation, here the County did not acknowledge there is great uncertainty that mitigation measures would ever be funded or implemented. To the contrary, the EIR states in part: “Due to the high value of this local water resource, the purveyors have placed a high priority on replacing the impacted groundwater capacity by installing wellhead treatment and the construction of new wells.” Here, unlike Federation, there is nothing to suggest the mitigation measures will not be implemented. Finally, SCOPE points to nothing in Federation or any other case that requires the EIR to discuss funding for mitigation measures.
*164 DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents and real parties in interest.
Coffee, J., and Perren, J., concurred.
A petition for a rehearing was denied December 14, 2007.
Notes
AH statutory references are to the Public Resources Code unless otherwise stated.
SCOPE contends the EIR’s failure to properly analyze the Kem-Castaic transfer violated the terms of the remittitur in Scope I. It follows from what we have said that the contention has no merit. We did not consider the Kem-Castaic transfer in Scope I, and it was not within the terms of our remittitur in that case.