Recertification of the West Creek EIR
On September 26, 2000, the Los Angeles County Board of Supervisors certified the Final EIR for the West Creek project. Subsequently, various parties challenged the County's certification of the Final EIR and project approval in an action in Santa Barbara County Superior Court (trial court).
On February 27, 2003, the California Court of Appeal directed the trial court to issue a writ of mandate vacating the certification of the West Creek EIR and to retain jurisdiction until the County of Los Angeles, the lead agency, certifies an EIR that complies with CEQA. The Court of Appeal found that the West Creek EIR was inadequate because: (1) it did not calculate or discuss the differences between entitlement and actual supply with respect to the State Water Project (SWP); (2) there were no estimates from SWP as to how much water it could have delivered in wet years and in periods of drought; and (3) it was not sufficient for the EIR to simply contain information submitted by the public and experts, but rather, a detailed analysis of the information was required. (Santa Clarita Organization for Planning the Environment, 106 Ca. App. 4th, pp. 716, 721-724.) Thus, the appellate court made it clear that the West Creek EIR was insufficient for CEQA purposes.
Pursuant to the Court of Appeal decision, the trial court issued a writ of mandate ordering the County to void its certification of the West Creek EIR and to revise and recirculate the EIR's analysis related to water supply and demand, in compliance with CEQA and the Court of Appeal's decision. (Santa Clarita Organization for Planning the Environment v. County of Los Angeles, No. 1043805, Santa Barbara County Superior Ct., Judgment Granting Peremptory Writ of Mandate, filed June 30, 2003, at 3.)
In response to the directions of the Court of Appeal and the trial court, the County prepared the West Creek Additional Analysis, comprised of Volumes I through VIII and a two-volume Supplement (Additional Analysis). The first step was the preparation of Volumes I and II (December 2003), the draft Additional Analysis. Following a review and public comment period on the West Creek draft Additional Analysis, county staff provided for preparation of written responses for further public review, Volumes III and IV (April 2004) of the Additional Analysis.
On May 12, 2004, the County Regional Planning Commission (Planning Commission) continued the West Creek matter due to discovery on the West Creek project site of the western spadefoot toad, a Species of Concern that had been identified in the original West Creek EIR as having a high potential for being present on the site. At the direction of County staff, a Western Spadefoot Toad Analysis, Volume V (June 2004), was prepared as a component of the draft Additional Analysis. This augmented environmental analysis was circulated for review and public comment, responses were then prepared and a public hearing held before the Planning Commission.
The next step was for County staff to direct completion of Volume VI (September 2004) of the Additional Analysis, consisting of all written and oral comments received on the western spadefoot toad analysis, responses to those comments, revised Additional Analysis pages amended in response to comments, and additional documents included as appendices. During its public hearing held September 15, 2004, the Planning Commission recommended that the County Board of Supervisors recertify the West Creek EIR as revised by the Additional Analysis (Revised EIR) as adequate under CEQA, and reinstate the several Project Approvals that had been suspended pending the County's certification of a revised West Creek EIR.
The County Board of Supervisors held a public hearing on January 25, 2005, to accept oral and written comments on the Additional Analysis and the proposed Project Approvals and thereafter called for preparation of responses to comments on the revised environmental documentation and closed the hearing with respect to the receipt of such comments. In preparation for a further public hearing to consider the revised EIR and the Project Approvals, County staff provided for the preparation of Additional Analysis, Volume VII (March 2005), which includes comments received prior to and during the January 25 hearing, responses to those comments, and other relevant documents.
On March 22, 2005, the Board of Supervisors held a second public hearing regarding the West Creek revised environmental documentation, including the recently completed Volume VII, and the Project Approvals. On that occasion, the Board of Supervisors closed the public hearing on the West Creek project, recertified the West Creek Revised EIR, as revised by the Additional Analysis, and adopted environmental findings, a Statement of Overriding Considerations, and a Mitigation Monitoring Plan. Revised text and tables to the EIR, with revisions indicated by strikeouts and underlining, were compiled in the Additional Analysis, Volume VIII (April 2005).
Meanwhile, also in April 2005, Valencia reported that it had detected and confirmed the presence of perchlorate at levels ranging between 9.8 and 11 micrograms per liter (ug/l) in its Well Q2, exceeding the State Department of Health Services (DHS) "notification level" for perchlorate of 6 ug/l. Valencia promptly advised the County of this event, removed Well Q2 from service, and undertook an expedited effort to permit and install wellhead treatment, with the expectation of returning the well to public utility service before the end of 2005.
As a consequence of this detection of perchlorate in an additional operating well, the County had a supplement (Supplement) to the West Creek Revised EIR prepared. The purpose of the Supplement was to document the County's determinations regarding the detection of perchlorate in Valencia's Well Q2. The analysis contained in the Supplement ultimately concluded that the detection did not constitute significant new information or otherwise require recirculation of the Revised EIR, and that, even after this detection, there are sufficient water supplies to serve both West Creek and cumulative development. As the Supplement explained, the detection of perchlorate contamination in this well was not unexpected based on prior studies conducted of the existing contaminated wells. The Supplement further explained that Valencia's response plan was already underway; it involved the installation of wellhead treatment expected to be on-line by the end of 2005; and, it would use ion exchange technology, which DHS has identified as "best available technology" for perchlorate removal, and is currently in use, with DHS approval, in various Southern California locations.
Volume I of the Supplement was released for review and comment in May 2005. The review and comment period for the Supplement concluded on July 5, 2005. County staff prepared responses to comments received and compiled Volume II of the Supplement, including written comments and staff responses, in July 2005. The eight volumes of the West Creek Final Additional Analysis (2003-05) plus the two volumes of the Supplement (2005) serve as the CEQA document required to meet the trial court's direction to reevaluate water supply and demand issues associated with the West Creek project.
The Board of Supervisors held a public hearing on the Revised EIR (including the Additional Analysis with the Supplement) on July 26, 2005. After the close of this final public hearing, the Board recertified the Revised EIR and adopted a revised and updated Findings of Fact and Statement of Overriding Considerations Regarding the West Creek Project, including an unchanged Mitigation Monitoring Plan.
On January 6, 2006, Santa Barbara County Superior Court, the trial court responsible for reviewing the County's actions in the West Creek matter, issued an Order After Hearing, finding that the revised West Creek EIR and the County's review process were legally sufficient. The trial court held:
This court finds the Revised EIR does comply with CEQA, and includes accurate availability, reliability supply estimates for State Water Project Water in wet, average and dry years based upon estimates from the DWR, contains revised and re-assessed analysis for water supply and demand, makes clear that SWP entitlements are not equivalent to actual deliveries of water. The court finds that adequate detailed response has been prepared for public comments on the revised EIR. Petitioner's Request to expand the injunction will be denied. (Santa Clarita Organization v. County of Los Angeles. Order After Hearing, page 2 of 14, filed January 6, 2006, Superior Court of California, County of Santa Barbara, Case Number 1043805.)
