First District Court of Appeal Defers to Water Agency’s Discretion and Upholds Urban Water Management Plan, Rejecting Claim That Any “Uncertainty” About Future Water Supplies Requires Analysis of Alternative Supplies

October 2010
Water Law

On October 8th the First Appellate District published its opinion in Sonoma County Water Coalition v. Sonoma County Water Agency (Case No. A124556), holding that California law does not require an urban water supplier’s Urban Water Management Plan (“UWMP”) to include a detailed analysis of “hypothetical” uncertainties in future water supplies.  The Sonoma County Water Coalition case gives deference to agency expertise and concludes that the state Legislature did not intend for agencies to analyze “all possible eventualities” in their UWMPs.

California law requires urban water suppliers to prepare or update an UWMP every five years, to address water supplies over the following 20 years.  (Water Code § 10610 et seq.)  As the court noted in Sonoma County Water Coalition, an UWMP is a long-range planning tool “to ensure adequate water supplies to serve existing customers and future demands for water.”  The law requires that an UWMP discuss water usage, resources, reliability, and shortages.  If there is uncertainty about water supplies, an UWMP should discuss the availability of alternative supplies, and this requirement was at the heart of the Sonoma County Water Coalition case.

In Sonoma County Water Coalition, a number of citizen organizations and one citizen challenged the Sonoma County Water Agency’s (“SCWA”) adoption of a new UWMP in 2005.  The SCWA gets most of its water supplies from the Russian River and Eel River, and has been involved in several recent lawsuits regarding these diversions.  In its UWMP, the SCWA identified certain assumptions about future water supplies:  that the presence of threatened and endangered salmonids would not reduce its supplies, that a planned “Water Supply Reliability Project” would be approved and constructed, that the State Water Resources Control Board would approve SCWA’s pending application to increase water diversions, and that water quality issues from potential future wastewater projects would have no impact on SCWA’s supplies.  The UWMP acknowledged that many of these assumptions depended on future decisions by other regulatory agencies, as wells as unknown future conditions, but SCWA concluded that the assumptions were nonetheless reasonable, and it discussed why.

The trial court that first ruled on the case held that the UWMP was inadequate.  The trial court did not agree with SCWA’s assumptions, and believed that the law requires urban water suppliers to identify alternatives for any less-than-certain supplies.  But the First District Court of Appeal reversed this ruling, explaining that “some level of uncertainty” is an “inherent feature of modern water management” that “cannot be avoided.”  The appellate court ruled that “certainty” is not what California law requires in an UWMP. Instead, an agency must support its conclusion that adverse circumstances are unlikely to occur by providing “substantial evidence,” which is “relevant information that a reasonable mind might accept as sufficient to support the conclusion reached.”  If the agency presents such a “fair argument” a court cannot consider and weigh conflicting evidence (or inferences) presented by an opponent, even if “reasonable minds may differ” about an agency’s position.  This is because a court “cannot substitute its judgment for that of the Agency,” and must “give appropriate deference to the Agency’s expertise.”

The court found this to be particularly true when an agency discusses anticipated future water supplies, as opposed to existing supplies.  Because the occurrence of a future event is not entirely certain, an agency is not required in an UWMP to “negate any possibility that its future projects might not be achieved, or to establish a level of certainty of implementation impossible to achieve.”  Moreover, because an UWMP must be updated every five years, this “provides ample opportunity for the Agency to address and respond to maturing and tangible risks to long-term water supply projections.”  And matters requiring technical expertise deserve “as little judicial interference as possible.”

The appellate court compared UWMPs to other planning tools that require “generalized information,” such as the requirement that a water supplier prepare a “water supply analysis” for a proposed development project. And the court distinguished UWMPs from “detailed project-specific planning documents, such as those required under CEQA.”  The court also ruled on other aspects of the UWMP law, by upholding SCWA’s description of “conservation measures” and deferring to SCWA’s discretion in determining which agencies to “coordinate with.”

The Sonoma County Water Coalition case sets a standard for court review that gives deference to an urban water supplier’s analysis of whether future supplies are reasonably likely to be available.  In this way, the case follows a pragmatic approach similar to that taken in a recent case discussing the standard for court review of water supply assessments.  (O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 586.)  In reality, the SCWA has recently acknowledged that because of changing circumstances its future water supplies are in fact uncertain.  But as the court in Sonoma County Water Coalition reasoned, the SCWA will have “ample opportunity” to address these new risks in its next updated UWMP, due this year.

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