Response of Sierra Club

In its August 12, 2005 response (Response) opposing Valencia's motion, Sierra Club raises substantive issues that have been fully addressed in prior Commission decisions or in the additional CEQA review recently certified by the lead agency. Sierra Club's assertions are addressed below.

A. There is No Need for the Commission to Duplicate the County's CEQA Review

Sierra Club claims "substantial new information" regarding the perchlorate issue. (Response, at 2.) This alleged new information was exhaustively addressed in the ten volumes of Additional Analysis augmenting the West Creek EIR and was taken into account in the County's reinstatement of the various permits and approvals for the West Creek project. We find no need for the Commission to duplicate the County's review.

B. The Findings and Conclusions of D.01-11-048 Are Valid

Sierra Club asserts that some of the findings and conclusions of D.01-11-048 related to perchlorate contamination "have now proved to be inaccurate." Specifically, Sierra Club challenges Finding of Fact 32 and Conclusions of Law 5 and 8. (Response, at 2-3.) We find no merit to these challenges.

Finding of Fact 32 in D.01-11-048 is quoted in the Response, at 2, and basically states that it is reasonable to anticipate that the water purveyors will effectively remediate the perchlorate problem in a timely manner so as to preserve their ability to rely on the Saugus Formation as a dry-year supply firming resource. According to Valencia, remediation efforts are on track consistent with the Commission's expectations as evidenced by Finding of Fact 32. Work to clean up perchlorate contamination on the Whittaker-Bermite industrial site was in progress. Valencia is implementing wellhead treatment at its Well Q2 and expected that system to be in place and operating later in 2005. Castaic Lake Water Agency (CLWA) has a containment program in progress and is on schedule for implementing wellhead treatment at two Saugus Formation wells by mid-2006. In short, these developments bear out the accuracy of the Commission's Finding of Fact 32 in D.01-11-048.

Conclusion of Law 5 in D.01-11-048 stated that "[t]he range of supplies the WMP projects as available from the Alluvial Aquifer and the Saugus formation is reasonable." Sierra Club alleges that a Stetson Engineers report disputes the adequacy of prior reports that established the availability of firming supply from the Saugus Formation. Reviewing the excerpt from the Stetson Engineers report that is attached to the Response shows, however, that the Stetson Engineers report does nothing of the sort. That report refers to a "2001 Slade report" (which was received into evidence in this WMP proceeding) as having estimated that "the Saugus Formation can be operated on a long-term average basis in the range of 7,500 to 15,000 AFY" and then concludes the excerpted section by estimating that, with additional well capacity, pumping from the Saugus Formation could range up to 25,000 acre feet per year (AFY) in dry years, but that water quality impacts of increasing such pumping to substantially above 15,000 AFY have not been extensively studied. (Exhibit 6 to Response.) This conclusion does not dispute the adequacy of the 2001 Slade report.

Finally, Conclusion of Law 8 in D.01-11-048 stated that "[t]he WMP's estimate of recycled water supply is reasonable." Sierra Club alleges this conclusion has proven inaccurate, because the recycled water amount currently used in the West Creek documents is 1,700 acre feet (AF) while the WMP used 17,000 AF. Here Sierra Club is mixing apples and oranges-or, more specifically, existing supply and future planned supply. The West Creek Additional Analysis presents the facts in its Summary of Water Supply and Demand (Volume I of II, December 2003, Section 2.0). Table 2.0-3 includes 1,700 AFY of Recycled Water in a mix of "Existing Water Supply" that more than meets existing plus project demand in a critical dry year. Table 2.0-4 retains that 1,700 AFY of Recycled Water as part of Existing Water Supply and expands that supply to include 17,000 AFY of Recycled Water under the heading of "Future Planned Water Supply Programs" as part of its supply and demand assessment for Year 2020. Thus, rather than contradicting the Commission's Conclusion of Law 8 of D.01-11-048, the West Creek Additional Analysis confirms the accuracy of that conclusion. In short, we find no basis for Sierra Club's assertions regarding the adequacy of Finding of Fact 32 and Conclusions of Law 5 and 8 of D.01-11-048.

C. Castaic Lake Water Agency's Acquisition of State Water Entitlements Provides No Basis to Deny Valencia's Motion

CLWA supplies SWP water to Valencia and other retailers in the area. Sierra Club makes an issue out of CLWA's alleged failure to abide by the "Monterey Settlement Agreement" in its acquisition of a 41,000 AFY entitlement to SWP supply. (Response, at 3.) While these parties may be pursuing litigation with respect to the revised EIR that CLWA completed and certified with respect to its acquisition of additional SWP supply, we believe the EIR for that supply must be presumed adequate for current planning processes. (See, CEQA Guidelines, 14 Cal. Code Regs., § 15231.) Moreover, in denying a motion for an order to decertify the revised EIR, the trial court held:

This court finds that the uncertainties involving the 41,000 afy transfer were adequately disclosed in the revised EIR, and substantial evidence supports the County's conclusion that it could be relied upon for planning purposes, notwithstanding the pending DWR environmental review and the fact that it is not among those transfers listed as immune from challenge in the PCL Settlement Agreement. (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.)

Thus, we reject Sierra Club's argument that CLWA's 41,000 AFY entitlement of SWP supply cannot be used for planning purposes simply because there is pending litigation on CLWA's EIR.

D. The Commission Should Not Defer Implementing D.01-11-048
Until Further Judicial Proceedings Conclude

By letter dated February 6, 2006, SCOPE informed the Commission that it had appealed the trial court's Order After Hearing issued on January 6, 2006, finding that the County's review process was legally sufficient. Therefore, SCOPE urges the Commission to wait for the outcome of the appeal before lifting the stay of D.01-11-048 related to the West Creek project.

Valencia replies that the County, the lead agency for the West Creek project, has treated the revised final EIR as sufficient and has granted grading, construction, and other permits to allow the project to proceed. The developer has commenced grading and the first sales of land within the development are expected to close in July 2006, with homes planned for occupancy by April 2007. Valencia argues that as the Commission considers whether to lift its stay of D.01-11-048, CEQA Guidelines Section 15231 requires the Commission to assume that the County's revised final EIR complies with CEQA, and the conclusive presumption of Section 15231 applies in this case. Therefore Valencia believes that the Commission can and should lift the stay of D.01-11-048 imposed by D.03-10-063 regarding the Commission's approval of the West Creek EIR.