IV. The Proper Role of the Commission Under CEQA
The real question raised by Protestants is whether Valencia's application requesting Commission approval of the WMP (and associated ALs) reveals a regulatory gap in regard to the long-term water supply planning in the Santa Clarita Valley, and if so, is the Commission the agency to fill that gap? Protestants would say "yes," based on their perception that (1) environmental review conducted locally is incomplete, and (2) the WMP is a planning document requiring at least a program EIR. Valencia says "no" to these questions, based on its belief that (1) environmental review (including cumulative impacts analysis) was conducted by the local permitting authorities, and (2) the build-out analysis performed already by CLWA and Los Angeles County, constitute the long-term supply planning for CEQA purposes, not the WMP.
For the reasons set forth below, we conclude that the Commission's proper role in this matter is that of a responsible agency, and consistent with the extent of its jurisdiction, is limited to determining the adequacy of water supply to meet the needs of Valencia's present and future customers.
A. Position of Ventura
Ventura argues that CEQA does not permit the Commission to limit its statutory responsibilities to that of a responsible agency. Ventura relies on Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 903-905. Ventura characterizes the WMP as "a continuing program with an interim 10-year Los Angeles County Development Monitoring System (DMS) horizon and long-term 20-year planning horizon." Ventura contends that as a "lead agency" having the principal responsibility for approving the WMP, which may have a significant effect on the environment, the Commission must require an EIR to be prepared for the WMP. According to Ventura, ALs 88 and 90 are sub-projects supported by EIRs prepared for their underlying land developments with an incremental water demand of about 5,011 AFY. Ventura contends that the WMP on which the ALs rely is the larger project planning document to inventory regional water supplies available in the amounts indicated to meet project demand for the 10- to 20-year horizon of the WMP. Ventura argues that CEQA review of such general planning documents should be accomplished by a program EIR to evaluate a series of actions related geographically as logical parts of a chain of contemplated actions. Ventura cites Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316.
B. Position of Sierra Club
Sierra Club argues that the Commission must assume the role of lead agency for CEQA purposes and address every potentially significant effect caused by usage of all the water resources shown as available in the WMP. According to Sierra Club, no agency has prepared an EIR on the impacts of Valencia's WMP, and none of the development project EIRs that Valencia submitted for Commission review addresses the cumulative impacts of Valley-wide water demands in the WMP's 10-year growth projection.
C. Position of Valencia
Valencia contends that Ventura has misunderstood the scope and contents of the EIRs3 that were prepared, approved, and certified by the local lead agencies for the four land development projects for which ALs 88 and 90 propose that Valencia should provide water service. Further, Valencia disputes Protestants' arguments that (1) the four development project EIRs "did not even purport to evaluate any impacts beyond the incremental 5,011 AFY demand"; and (2) "if the Commission does not require an EIR for this WMP, no environmental review of the Santa Clarita Valley regional water supply delivery capability will ever occur." Valencia points out that the two most recent of these EIRs, in particular, include cumulative impact assessments, especially focusing on the adequacy of water supplies to meet long-term growth to the extent of full build-out of the Santa Clarita Valley, including the Newhall Ranch Specific Plan.
Valencia also points out that the EIRs evaluated not only the demand projected for the immediate projects and Los Angeles County's DMS buildout, which is within the scope of the WMP, but also CLWA's Integrated Water Resource Plan (IWRP) Valley-wide buildout scenario, extending well beyond the WMP both in time and scale. Valencia submits that the cumulative environmental impacts analysis presented in those EIRs includes just the type of "environmental review of Santa Clarita Valley regional water supply delivery capability" that the Protestants are concerned will never be done if the Commission does not do it with respect to the WMP.
D. Discussion
We endorse the principle that a utility project must satisfy environmental review, including (where appropriate) the review of cumulative impacts of the project in conjunction with other projects. We find, however, that the projects at issue here have received environmental review from other permitting authorities, and we may satisfy our own CEQA duties within the role accorded a responsible agency.
In the case before us, it is the extension of Valencia's water service to the four development projects covered by ALs 88 and 90 that must be the subject of the Commission's environmental assessment. The extension of such water service was one element of each development project, and the environmental impacts of the extension of water service were assessed and studied within each of the environmental topical areas addressed by each of the four development project EIRs. Each of the EIRs included a chapter on "Water Resources" and a chapter on "Water Service," and these chapters of the most recent EIRs - for the North Valencia 2 and West Creek developments - analyzed data and reached conclusions similar to those presented in Valencia's WMP.
None of the EIRs prepared for the North Valencia 2, Mountain View, Tesoro del Valle, or West Creek developments concluded that there would be significant impacts with respect to water service or water supply. All of the EIRs concluded that there were no significant water supply impacts, as an adequate supply of water existed for the anticipated demand of all projects within the then-current DMS, which included the cumulative demand of all four of those projects. Accordingly, the analysis of water facilities construction and water resource issues in these EIRs is sufficient for the Commission's consideration of the environmental impacts of the present project - "review and approval of the WMP in conjunction with ALs 88 and 90."
Approval of the advice letters by the Commission will entitle Valencia to serve the four development projects associated with the advice letters. Approval of the WMP will not "entitle" Valencia to pump groundwater or to take deliveries of SWP water from CLWA. Those "entitlements" already exist. In fact, because the groundwater basin that Valencia serves is unadjudicated and because of CLWA's "first come, first serve" policy for distributing SWP water, Valencia and the other three water purveyors in the basin (Santa Clarita Water Company, Newhall County Water District, and Los Angeles Water District No. 36) require no additional entitlement to obtain the water supplies they may need to serve customers within their authorized service areas. The only entitlement before the Commission is for Valencia to expand its service area to serve the four new developments.
The relevant EIRs have already considered, and mitigated as necessary, the potential environmental impacts of the provision of water service to the four land development projects. In the relevant EIRs, the only additional consideration presented by Valencia's ALs 88 and 90 is whether Valencia should be the provider of that water service. We find that Valencia's ready access to sources of water supply and the contiguous location of the land developments to its present service area make it the lower cost provider of water service to the future customers in these developments.
Considering the shared character of the water resources available to Valencia and other retail water purveyors in the Santa Clarita Valley, such as the unadjudicated groundwater basin and the water resources, including SWP water, available on a "first come, first served" basis through CLWA, it can be seen with certainty that there is no possibility of significant environmental impacts arising from the choice of Valencia, rather than one of the other retail purveyors, to provide water service to the North Valencia 2, Mountain View, Tesoro Del Valle, and West Creek developments. Accordingly, we conclude that no further review of environmental impacts is required with regard to the Commission's authorization of Valencia to be the water provider.
The CEQA Guidelines define a "responsible agency" as "a public agency which proposes to carry out or approve a project, for which a lead agency is preparing or has prepared an EIR or negative declaration." (14 Cal. Code Regs. ("CEQA Guidelines"), § 15381.) For purposes of CEQA, the term "responsible agency" includes all agencies other than the lead agency that have "discretionary approval power" over the project. (Id.) The approvals referred to in the definition are those within the jurisdiction of the responsible agency, rather than approval of the project as a whole. (See, e.g., Public Resources Code § 21153(c).)
In the present case, the Commission has responsibility for approving ALs 88 and 90, which are necessary water service approvals for the four land development projects whose respective EIRs were certified either by Los Angeles County or the City of Santa Clarita as lead agencies. Thus, the Commission is a responsible agency with respect to providing water service to each of those approved projects.
To comply with CEQA, a responsible agency must consider the final EIR prepared by the lead agency and reach its own conclusions on whether and how to approve the project involved. (CEQA Guidelines 15096(a), (f).) Before reaching a decision, a responsible agency must consider the environmental effects identified in the EIR of those activities that it is required to approve or carry out (in this case, the provision of water service), and it must independently decide whether to require additional environmental documentation. (Pub. Res. Code § 21002.1(d); CEQA Guidelines 15096(a), (f).) Under CEQA Guideline 15096(g)(1), a responsible agency need consider and adopt alternatives or mitigation measures designed to mitigate or avoid direct or indirect environmental effects only with respect to those parts of the project it decides to carry out, finance or approve.
A responsible agency, like a lead agency, must make the findings required by Public Resources Code § 21081 and CEQA Guideline 15091. In view of the limited scope of the responsible agency's role, it is sufficient for a responsible agency to indicate it has considered the EIR and to make or adopt findings only for environmental impacts that will result from the responsible agency's decision and that are subject to its jurisdiction.
Thus, as a responsible agency with respect to the provision of water service for the four approved development projects that AL 88 and 90 propose to have Valencia serve, the Commission's obligation is to review the EIR for each of the development projects with particular attention to the discussion of, and findings on, the environmental impacts related to water resources.
The Commission, in its role as responsible agency, has reviewed the EIRs and the WMP. Furthermore, this proceeding has produced a thorough and extensive evidentiary record covering the supply and demand requirements of the water purveyors in the Santa Clarita Valley, including Valencia, for the time frame covered by the WMP. This proceeding has entailed one interim decision by the Commission, numerous rulings, two prehearing conferences, testimony by 18 expert witnesses, eight days of hearings covering 1,100 transcript pages, and receipt into evidence of 66 exhibits. This record amply supports our determination to act as a responsible agency under CEQA.
We now turn to Ventura's arguments regarding the proper application of CEQA in this proceeding. Ventura contends that CEQA requires the Commission, before approving Valencia's WMP, to evaluate the environmental impacts of increases in groundwater pumping over the next 20 years to the levels shown as available in the WMP. According to Ventura, "[t]he decision at issue now is the approval of Valencia's WMP," and so "the long-term consequences of the WMP's increasing reliance upon groundwater sources to meet cumulative regional demand" must be the subject of CEQA review.
In this proceeding, the Commission determined that the WMP "in conjunction with" ALs 88 and 90 was a "project" for CEQA purposes. The combination of a general WMP plus the advice letter specific requests for entitlements on the basis of that WMP is what the Commission found to comprise a "project" requiring assessment of potential environmental impacts. (D.00-10-049, mimeo. at 22, 24 (Conclusion of Law 1).
Ventura refuses to accept that the application of CEQA to this proceeding is with respect to "the WMP in conjunction with ALs 88 and 90." According to Ventura, "this proceeding concerns three separate requests for approval" of the WMP, AL 88, and AL 90, and "the language `in conjunction with' does not permit CEQA review of ALs 88 and 90 instead of the WMP." Nor, according to Ventura, may the Commission substitute EIRs prepared for the four development projects for CEQA review of the WMP as a whole, or focus environmental impact assessment on the incremental demand increase of 5,011 AFY for ALs 88 and 90 instead of the regional impacts of supplying water in the quantities listed in WMP Figure III-2, attached as Appendix A to this decision.
We believe that Ventura's position is unsustainable either procedurally or substantively. Procedurally, the definition of the "project," for CEQA purposes, is "the WMP in conjunction with ALs 88 and 90." D.00-10-049 made that determination, and the Assigned Commissioner's ruling of December 21, 2000 confirmed it. But the WMP, standing alone, is not a "project," and so it makes no sense and it is not legally required for the Commission to undertake a review of the potential environmental impacts of the possible use of all the water resources that the WMP presents as "available" over the ten to 20-year forecast period of that document.
While recognizing the applicability of CEQA to the "project" that was "the WMP together with ALs 88 and 90," the Commission also noted that local lead agencies had prepared EIRs for the land development projects to which AL 88 and AL 90 relate, and saw no reason to duplicate CEQA reviews already conducted by those lead agencies. This is why the Commission ordered Valencia to submit, along with its PEA, copies of any EIRs relating to the advice letters and evidence of any final local agency actions relating to those EIRs. (D.00-10-049, mimeo. at 22-23, 25 (Ordering Paragraph 1).)
Ventura complains that Valencia's approach entirely avoids CEQA review of the WMP. That is not true. Valencia has accepted the need for environmental assessment with respect to the defined "project" - the WMP in conjunction with ALs 88 and 90 - and has furnished all relevant documentation used by the local lead agencies that conducted full-blown EIRs with respect to the development projects that ALs 88 and 90 proposed to serve. Analysis of the environmental documentation for those projects, including the demand projected for the DMS buildout and for the long-term WMP Valley-wide buildout scenario as provided with the PEA, reveals a high degree of consistency with the evidentiary record developed in this proceeding with respect to the WMP.
Ventura claims that CEQA requires evaluation of the environmental impacts of "making available" the quantities of water estimated in WMP Figure III-2, with particular attention to "making available" the increment of water supplies estimated in comparison to what is now being relied upon. The problem with this assertion is that the WMP does not, and Commission approval of the WMP will not, "make available" any water supplies. The WMP merely estimates the volumes of water resources that are and will become available from various sources. To that extent, the WMP is - as noted above - simply a planning document.
Ventura's reliance on Planning & Conservation League v. Department of Water Resources (DWR) (2000) 83 Cal.App. 4th 892, 903-905 is misplaced. The issue in that case was the delegation of DWR's responsibility to prepare an EIR to another party. In the case before us, there is no such delegation - the EIRs have been prepared and certified by the lead agencies for the four development projects that are the subject of ALs 88 and 90. Also, the Commission is not delegating the responsibility for preparing an EIR for the WMP itself, because no such EIR is required for the WMP standing alone.
The Commission was clear, in this case, to identify the "project" for CEQA purposes as the WMP "in conjunction with" ALs 88 and 90.
Some of the actions that will "make available" new sources of water supply for the Santa Clarita Valley will be actions already taken or to be taken in the future by public agencies such as CLWA or by private entities that require permits or planning approvals from local or state agencies. Those actions will call for assessment of potential environmental impacts in accordance with CEQA. The WMP does not have such impacts; its impacts arise in connection with the demand-related entitlements - ALs 88 and 90 - that may be granted in conjunction with approval of the WMP and that may generate a 5,011 AFY near-term increase in Valencia's water demand. It is the impacts associated with that 5,011 AFY demand increase that are properly the subject of CEQA review in connection with this proceeding. These and other impacts of the four development projects are fully addressed in the four sets of environmental documents already completed and certified by the local agencies.
Given the Commission's role as a responsible agency reviewing EIRs certified by local lead agencies, Ventura's citation to the County of Sonoma case and its "low threshold requirement for initial preparation of an EIR" is simply beside the point - EIRs have been prepared and certified by the lead agency which include extensive analyses of project and cumulative impacts on water supplies. As responsible agency, the Commission has reviewed those EIRs and the findings supporting them. The EIRs did not identify any significant environmental impacts related to water service or water supply. No further CEQA review is required.
We believe that the analyses in these EIRs are sufficient to meet the requirements of CEQA. The local lead agencies have approved and certified all the EIRs, and their actions are final and no longer subject to judicial review, except in the case of West Creek, for which a timely petition for writ of review was filed and remains pending, but without any injunctive effect.
3 Or, for the Mountain View project, the Mitigated Negative Declaration.
