Rohnert Park Decision: Water Suppliers Given “Substantial Discretion” To Analyze Groundwater Sufficiency for New Developments

November 2008

On November 19, 2008, the California Court of Appeal, First Appellate District, agreed with the City of Rohnert Park that it properly analyzed the groundwater supplies for a proposed major development project. O.W.L. Foundation v. City of Rohnert Park, Case A114809 (2008) (“ Rohnert Park ”). The court first granted an exception and considered the adequacy of the City's water supply assessment (WSA) before the approval of an Environmental Impact Report for the project. It then upheld the City's groundwater sufficiency analysis, taking a realistic approach: “We agree with appellants that a WSA need not analyze groundwater pumping by all users in an entire basin. We also agree that the relevant statute does not specify a particular methodology for a sufficiency analysis and in that respect affords the water supplier substantial discretion in determining how to measure groundwater sufficiency. While that discretion is not boundless, we are satisfied the City acted well within its discretion in adopting the WSA. ”The Rohnert Park decision gives water suppliers flexibility in determining how to conduct an appropriate groundwater sufficiency analysis for new development projects.

Background
California law requires that before a city or county approves a major new development it must identify anticipated water supplies. The public water agency or local government that will provide water to the development must conduct a “water supply assessment” (WSA) to determine whether those water supplies will meet the projected water demand for the project, along with other water uses, over a period of 20 years. See Water Code § 10910 et seq. The WSA requirement is also referred to as “SB 610,” because in 2001 the then-existing but weaker law was strengthened by Senate Bill 610. The purpose of SB 610 was to ensure that a land use agency considers the availability of water supplies before approving new developments.

If the proposed water supply for the project includes groundwater, the WSA must describe groundwater basin conditions, including groundwater pumping by the water supplier for the prior five years and its projected future groundwater pumping, and the WSA must analyze the sufficiency of groundwater to meet projected water demand. Water Code § 10910(f). The city or county includes the WSA in its California Environmental Quality Act (“CEQA”) documents and must consider the WSA when making findings about the sufficiency of water supplies. The legal adequacy of WSAs has been increasingly litigated, and was addressed by the California Supreme Court in February, 2007 in the case of Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 Cal.4th 412 (“Vineyard”).

The City of Rohnert Park (“City”) in Sonoma County wished to expand the limits of its urban growth boundary and allow new development in the area. The City released a draft Environmental Impact Report (“EIR”) under CEQA that analyzed a proposal to amend the City's general plan by annexing over 1,000 acres into the City limits. The City would rely on surface water supplies for new developments and also on groundwater supplies from wells located within the City. It hired a consulting company to assess the sufficiency of groundwater supplies for the project, and the company conducted a groundwater analysis using a computer model and historical well pumping data.

The Decision
The O.W.L. Foundation (“OWL”) challenged the adequacy of the City's WSA. OWL claimed the study area that the City chose to analyze groundwater supplies in its WSA was not appropriate because it was not entirely in the relevant groundwater subbasin. The lower court agreed, finding the WSA inadequate because the City's study area was not a “sample” used to determine the status of the entire groundwater basin or subbasin, and that an adequate analysis of groundwater sufficiency “seems to require a determination of the amount of water being used and expected to be used by everyone who uses the same water supply.”

On appeal, the court began by addressing the fact that OWL had challenged the WSA before the City approved its final EIR. In a recent SB 610 case from April 2008, a court held that a WSA was a “technical” document that could not be challenged in court until the local government approved the EIR for the development project. California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1471 (read about the “C-WIN” case here: https://www.downeybrand.com/publications/updates/080417_water.php). Due to a unique set of circumstances, however, the court in Rohnert Park found that the City's WSA was properly challenged before the City approved the EIR. The court made a “narrow exception” to C-WIN because OWL had also filed a lawsuit challenging a specific development project that was to go forward under the City's new general plan. That other lawsuit was based on an EIR that the City did approve, challenging the same WSA, and the parties agreed that the outcome of the Rohnert Park case would also be the outcome of the companion case. The court found that although it generally agreed with the C-WIN case,it would be “enormously inefficient” to dismiss the case and the court still had fundamental jurisdiction to hear the case even though under C-WIN it was technically not ripe for review.

The court next turned to the City's groundwater sufficiency analysis. Recognizing that the specific question before the court was whether the law requires water suppliers to analyze groundwater pumping by all users in an entire groundwater basin, the court noted that the broader question was how much discretion a water supplier has when analyzing groundwater sufficiency. Using the concepts of groundwater set forth in the Department of Water Resources' “Bulletin 118,” including its definitions of “subbasin” and “overdraft,” the court noted that “groundwater use has never been regulated by the state” and was instead managed by local governments, or adjudicated by courts.

The court then endeavored to give the statute a “workable and reasonable interpretation,” and found that nothing in the plain language of Water Code section 10910(f)(5) required a water supplier to conduct a basin-wide study of past and future pumping by all users. Analysis of the “sufficiency” of groundwater under the statute does not require this, and because the statute specifically asks a water supplier to analyze its own groundwater pumping, for both the past five years and for the future based on “information that is reasonably available,” it follows that the water supplier is not being asked to analyze that information for other pumpers. Although the statute requires that a groundwater sufficiency analysis consider relevant groundwater basin conditions, “there is nothing in the statute to suggest that the only way groundwater conditions may be analyzed is by measuring pumping by all users throughout a groundwater basin.” The court backed up its decision with support from the legislative history of SB 610.

As a practical matter, the court found that because WSA's were completed in a relatively brief time frame, information on groundwater basins is not often readily available, and some basins are “massive,” it would often be infeasible for an agency to conduct a basin-wide analysis (or even a subbasin-wide analysis) of groundwater uses in order to approve a new development project. A WSA is approved for “a specific, proposed development project,” and is not a general planning document for groundwater supplies in a basin. That function is better served by groundwater management plans or groundwater ordinances. The purpose of SB 610 is to ensure that local governments “take water supplies into account,” not to impose a large burden every time a new development is proposed. The court also relied on the California Supreme Court's discussion in the Vineyard case, that a WSA occurs at the early stages of the planning process and that “firm assurances” of water are not required until later stages. (40 Cal.4th 412, 433-434).

The court in Rohnert Park also established that when an agency conducts a groundwater sufficiency analysis it has substantial discretion to select an appropriate methodology, and deference regarding these technical decisions is given to the public agency conducting the analysis. With regard to the size and character of the study area used to analyze groundwater basin conditions, the court found that the water supplier did not need to conform to a “basin or subbasin boundary” previously delineated by the Department of Water Resources, since those boundaries “may conflict with hydrological realities.” Instead, the water supplier has discretion to make “technical and practical determinations about the appropriate geographic area to support a WSA.” That discretion is not boundless; the study area must not be arbitrary and must have evidentiary support. The City used watershed boundaries rather than groundwater subbasin boundaries to analyze the conditions of the groundwater basin. Some of the watershed boundaries were outside of the groundwater subbasin, but the court found that the City had a “rational reason” to justify its study area because the City drew a connection between the watershed boundaries and “groundwater divides.” Even if the court found the connection too tenuous, the City also examined the correlation between historical pumping and groundwater levels in the area, and thus the WSA was adequate.

Conclusion
The Rohnert Park decision gives water suppliers flexibility to conduct realistic groundwater sufficiency analyses. The court took a realistic approach by interpreting the WSA requirements in a way that makes groundwater analyses feasible for local governments. Rather than requiring local water suppliers to undertake the study of all groundwater pumping from basins that may be large or where data is lacking, the court supported practical limits on the requirements of SB 610. Rohnert Park also leaves the technical decisions regarding the scope and methodology of groundwater studies to the discretion of local agencies, so long as those decisions can be rationally supported.

Downey Brand submitted an amicus brief in Rohnert Park on behalf of the Association of California Water Agencies, advocating for the position that was adopted by the Court of Appeal's decision.