Sierra Club v. West Side Irr. Dist.

• Decision Date: 22 March 2005
• Docket Number: No. C045015.,No. C044989.,C044989.,C045015.
• Citation: 128 Cal.App.4th 690,27 Cal.Rptr.3d 223
• Court: California Court of Appeals Court of Appeals
• Parties: SIERRA CLUB, Plaintiff and Appellant, v. The WEST SIDE IRRIGATION DISTRICT et al., Defendants and Respondents; City of Tracy, Real Party in Interest and Respondent. Sierra Club, Plaintiff and Appellant, v. Banta-Carbona Irrigation District et al., Defendants and Respondents; City of Tracy, Real Party in Interest and Respondent.

27 Cal.Rptr.3d 223

128 Cal.App.4th 690

SIERRA CLUB, Plaintiff and Appellant, v. The WEST SIDE IRRIGATION DISTRICT et al., Defendants and Respondents;

City of Tracy, Real Party in Interest and Respondent.

Sierra Club, Plaintiff and Appellant, v. Banta-Carbona Irrigation District et al., Defendants and Respondents;

City of Tracy, Real Party in Interest and Respondent.

No. C044989.

No. C045015.

Court of Appeal, Third District.

March 22, 2005.

Law Offices of Donald B. Mooney and Donald B. Mooney, Davis, CA, for Plaintiff and Appellant.

Herum Crabtree Brown, Jeanne M. Zolezzi, Steven A. Herum, Stockton, CA, and Jennifer L. Spaletta, for Defendants and Respondents.

Debra C. Corbett, Tracy; Lennihan Law, Martha H. Lennihan and Lori Lei K. Ozaki, Sacramento, CA, for Real Party in Interest and Respondent.

NICHOLSON, J.

The Sierra Club petitioned for writs of mandate to overturn two irrigation districts' decisions to assign certain water rights to the City of Tracy. The Sierra Club alleged the districts violated the California Environmental Quality Act by using negative declarations instead of environmental impact reports to analyze the assignments' environmental impacts. The trial court denied the petitions, and the Sierra Club appealed. We affirm.

FACTS

In 1993, real party in interest City of Tracy (City) adopted its general plan for directing land use and future development within the City and its sphere of influence. Forecasting large demand for development in the City, the general plan established the City's policies for regulating growth anticipated to provide dwelling units and employment opportunities for nearly 130,000 new residents over the plan's 20-year span. Such growth would almost quadruple the City's 1990 population of 33,558.

Complying with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), the City prepared an environmental impact report (EIR) that analyzed the significant environmental impacts such development could foreseeably cause. One concern was the City's ability to provide sufficient water for the growth. The general plan EIR estimated the City's available water supply at that time was approximately 16,000 acre-feet per year. 10,000 acre-feet came from the federal Central Valley Project via the Delta-Mendota Canal pursuant to a contract with the United States Bureau of Reclamation. The City diverted this water directly from the canal through its own turnout and into its treatment plant. The City's remaining supply came from groundwater wells. However, in the general plan, the City established a policy of reducing its reliance on groundwater for daily needs and relying instead on surface water.

The general plan EIR calculated the City would need a total of 39,000 acre-feet per year of potable water upon its build-out. (The EIR noted an additional 7,800 acre-feet per year would be used for irrigation purposes, but this demand could be met with reclaimed water.) The City would have to supplement its current water supply with other surface water sources in order to obtain the additional 29,000 acre-feet of potable surface water.

The EIR recognized a number of irrigation districts surrounding the City held surface water rights to Sacramento Delta water or held contracts with the Bureau of Reclamation for surface water from the Central Valley Project. Two of those districts were defendants The West Side Irrigation District (West Side) and Banta-Carbona Irrigation District (Banta-Carbona) (collectively, the Districts). The EIR noted the City was "exploring the possibility of acquiring agricultural surface water rights whose irrigation districts are being developed to urban uses."

The adopted general plan required the City to ensure adequate water supply would be provided for all development. It directed the City to pursue acquiring additional sources of water supply, including the possible conversion of agricultural water rights to municipal and industrial uses and the acquisition of water rights from outside entities. The general plan EIR analyzed the environmental impacts that implementing this policy would foreseeably cause.

After adopting the general plan, the City continued to monitor its water supply. Pursuant to state law, the City prepared an urban water management plan, and updates that plan every five years. Every six months, the City disseminates a water inventory report analyzing the sufficiency of the City's water supply to meet expected demand.

In 2001, the City adopted a groundwater management policy, under which the City intended to increase its groundwater production from approximately 6,000 acre-feet per year to 9,000 acre-feet per year. This action would provide an interim water source for development until new surface water sources were secured. It increased the City's available water supply to 19,000 acre-feet per year, still 20,000 acre-feet short of the general plan's requirements.

The City's water management report noted other actions taken by the City to increase its water supply. One action was the City's participation in the South County Surface Water Supply Project. The City partnered with the cities of Manteca, Lathrop and Escalon, and the South San Joaquin Irrigation District, to develop a water treatment plant and pipeline to deliver water from the Stanislaus River. The City would receive 10,000 acre-feet of water per year from this project. In a separate legal action, plaintiff Sierra Club challenged the sufficiency of the EIR prepared for that project. The trial court rejected the Sierra Club's arguments, and the Sierra Club has appealed the judgment to this court, where the matter is pending. (Sierra Club v. South San Joaquin Irrigation Dist. (C039612, app. pending).)

Another set of steps taken by the City to procure more surface water was to negotiate assignments of water rights in the Central Valley Project from West Side and Banta-Carbona to itself. It is these assignments the Sierra Club challenges in this action.

West Side is located adjacent to, and at places overlaps, the City along the City's west and east sides. It has a contract with the Bureau of Reclamation to receive up to 7,500 acre-feet per year of Central Valley Project water for agricultural, municipal and industrial uses. West Side obtains this water through turnouts on the Delta-Mendota Canal located approximately two miles north of the City's turnout.

Due to increasing urbanization, West Side has shrunk in size and no longer has the demand for all of its water supply. In 2001, West Side and the City negotiated an agreement under which West Side agreed to assign to the City its right to collect 2,500 acre-feet of Central Valley Project water. West Side also gave the City an exclusive option to obtain West Side's right to an additional 2,500 acre-feet of Central Valley Project water. The City would access this water through its own turnout on the Delta-Mendota Canal.

The agreement was contingent in part upon the parties' compliance with applicable environmental laws, including CEQA. The parties agreed West Side would serve as the lead agency for purposes of CEQA review, and the City would act as a responsible agency.

Also in 2001, the City entered into a similar agreement with Banta-Carbona. Like West Side, Banta-Carbona lies adjacent to, and overlaps portions of, the City. It also has a contract with the Bureau of Reclamation for Central Valley Project water, although Banta-Carbona's right is for a maximum of 25,000 acre-feet of water per year. Banta-Carbona takes its delivery of this water from the Delta-Mendota Canal via a turnout located approximately 3.6 miles from the City's turnout.

Banta-Carbona agreed to assign its rights to 5,000 acre-feet of Central Valley Project water to the City. The City would obtain this water through its own turnout on the Delta-Mendota Canal. The contract was conditioned on the parties' complying with CEQA. It designated Banta-Carbona as the lead agency and the City as a responsible agency.

Following their initial reviews of the proposed assignments, the Districts in 2002 determined they would issue negative declarations for their respective contracts instead of EIRs and gave public notice of their determinations. The Districts received no comments during the public review period on their negative declarations.

After the close of the public review period, the Districts received a letter from the Sierra Club challenging the negative declarations on numerous grounds. Although not obligated to respond to the letter under CEQA due to its untimeliness, the Districts responded to the Sierra Club's arguments in their final negative declarations. On September 11, 2002, both Districts' boards of directors approved the final negative declarations for their respective projects and approved the assignments.

The Sierra Club petitioned for writ relief on both approvals, claiming the projects required a joint EIR. The trial court denied both petitions, ruling the Sierra Club failed to produce substantial evidence by which a fair argument could be made that the projects would have a significant impact on the environment.

Before us, the Sierra Club argues the Districts' use of negative declarations instead of a joint EIR violated CEQA in four respects: (1) the parties improperly segmented environmental review by splitting the assignments into two projects instead of having the City act as lead agency to consider both assignments as one project; (2) the negative declarations failed to discuss and disclose the cumulative impacts associated with the assignments; (3) the negative declarations failed to analyze whether the assignments would induce growth beyond that projected in the general plan; and (4) the Districts failed to determine what effect cutbacks in delivery of Central Valley Project water would have on the environment. We address each argument in turn.

DISCUSSION

I Standard of Review

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