APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. (Super. Ct. No. RIC480954).
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
Defendant City of Beaumont (the City) approved a specific plan, the Sunny-Cal Specific Plan (the SCSP or project), to build 560 residential units on a 200-acre site long used for agricultural purposes and located in an unincorporated area north of the City known as Cherry Valley. In August 2007, the City certified an environmental impact report (EIR) and adopted a statement of overriding considerations for the SCSP pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),*fn1 and took related actions approving the SCSP. Plaintiffs Cherry Valley Pass Acres and Neighbors and Cherry Valley Environmental Planning Group petitioned the trial court for a writ of mandate setting aside the City's certification of the EIR, adoption of the statement of overriding considerations, and related actions approving the project. The trial court denied the petition, and plaintiffs appeal.
Plaintiffs claim the EIR is legally inadequate as an informational document and the City therefore abused its discretion in certifying it because it failed to properly address the project's significant impacts on area water supplies and agricultural land uses. They first claim the EIR relied upon an improper baseline or environmental setting in assessing the project's impacts on local and regional water supplies and also failed to demonstrate a reasonable likelihood the project would have sufficient water supplies over the long-term. Second, they claim the EIR failed to adequately consider mitigation measures and alternatives for reducing the project's impacts on agricultural land uses. Third, and finally, they claim the findings the City made in adopting the statement of overriding considerations are not supported by substantial evidence. We find each of these claims without merit and affirm the judgment denying the petition.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn2
Cherry Valley is an unincorporated area of Riverside County located north of the City and east of Interstate 10 in the San Gorgonio Pass area. The 200-acre SCSP site is in the western portion of Cherry Valley, and consists of rolling terrain with elevations ranging from 2,400 to 2,600 feet above mean sea level. The SCSP site is roughly rectangular in shape and is bordered by Cherry Valley Boulevard to the north, Brookside Avenue to the south, and Beaumont Avenue to the east. A 631-acre area of Cherry Valley with rural residences, livestock pens, outbuildings, and small farm/ranch operations is located east of the SCSP site.
Beginning in the early 1960's through late 2005, members of the Manheim family, through their company, real party in interest Sunny-Cal Egg & Poultry Co. (Sunny-Cal) operated an egg farm on the 200-acre SCSP site. The egg farm housed over 1.5 million chickens and supported over 100 structures, mostly chicken coops. Sunny-Cal closed the egg farm in late 2005 after determining it was no longer economically feasible. Before 1959, the 200-acre project site was used for low intensity agricultural purposes.
During the early 1950's, a professional wrestler known as "Gorgeous George" purchased a house and began operating a small turkey ranch on the SCSP site, just east of the portion of the site where Sunny-Cal later operated the egg farm. Much of the area north of the project site and north of Cherry Valley Boulevard consists of a 240-acre area known as the "Danny Thomas Ranch" and includes a home once owned by the famous producer, actor, and comedian.
As finally approved in August 2007, the 200-acre SCSP is a smaller version of a larger scale SCSP that Sunny-Cal proposed in December 2004. As originally proposed, the SCSP was to encompass 323.3 acres, including approximately 120 acres of the Danny Thomas Ranch, and was to include 110,000 square feet of commercial retail and service properties and 907 residential units. The 323.3-acre project area, together with the adjacent 631-acre area of Cherry Valley east of the project area, were to be annexed to the City's sphere of influence. In December 2004, a notice of preparation was issued for the original SCSP and the annexation. In early 2005, the draft EIR was circulated for the original SCSP and the annexation.
In July 2005, the City's planning commission held a public hearing and suggested changes to the project, principally to reduce its size and scope. The original SCSP was then modified to eliminate all commercial properties and higher density residential units, to reduce the number of residential units from 907 to 597, and to exclude the 120-acre portion of the Danny Thomas Ranch, thus reducing the size or footprint of the SCSP from 323.3 to 200 acres. Further, in order to coordinate land uses on the 200-acre SCSP site with development in the 631-acre area east of the project site, a community plan, the North Brookfield Community Plan, was proposed for the entire 831-acre area, and the sphere of influence was revised to include this expanded area.
Riverside County's general plan and zoning guidelines allowed only one residence to be built on one acre in the 831-acre area, but the North Brookfield Community Plan envisioned that the 831-acre area would include as many as 1,543 residential units, with 597 in the 200-acre SCSP. The 597 units were to be built on 158.9 "net acres," with landscape buffers, parks, roads, trails, paseos, and open space acres constructed on the other portions of the 200-acre SCSP area. The draft EIR was revised to reflect these changes and was recirculated in May and June 2006. The revised EIR assessed the environmental impacts of the revised 200-acre SCSP on a project level and the impacts of the newly proposed North Brookfield Community Plan on a programmatic level.
According to the revised EIR, the area surrounding the 200-acre SCSP site and proposed North Brookfield Community Plan, or the entire expanded sphere of influence area, was undergoing substantial growth and development. The 631-acre portion of the North Brookfield Community Plan consisted mostly of long-vacant residential lots and "dozens" of parcels owned by "dozens" of individuals, but the Beaumont Unified School District was building a high school on 50 acres in the southwest portion of the 631-acre area. Two new subdivisions with approximately 2,000 homes were under construction southeast of the 200-acre SCSP site within the existing boundaries of the City. A PGA golf course and several more residential developments in various stages of development, including a proposed Oak Valley Specific Plan with approximately 6,000 residential units, was located across Interstate 10 and west of the SCSP site. The 120-acre portion of the Danny Thomas Ranch in the original SCSP had been sold and was proposed to be annexed to the City of Calimesa and developed for residential uses. The revised EIR concluded that the Cherry Valley community had "supported mainly rural and agricultural uses for many years," but it and surrounding communities, including the City, were "experiencing growth pressure from new homes and businesses."
The City requested and received comments on the revised EIR and addressed these and other comments in the final EIR, issued in May 2007. Additional comments were later received and addressed in June 2007. Plaintiffs and persons living in and around Cherry Valley submitted various letters criticizing the EIR's analysis of the project's impacts on area water supplies and agricultural resources.
At a public hearing in July 2007, the city council directed the City's staff and Sunny-Cal to abandon the North Brookfield Community Plan and to make additional changes to the SCSP. The North Brookfield Community Plan was then abandoned, and the SCSP was amended to reduce the number of its residential units from 597 to 560. In August 2007, the City certified the EIR, adopted the statement of overriding considerations, and took additional actions in approving the 200-acre SCSP (the project approvals). These included the annexation of the 200-acre SCSP site into the City and the amendment of the City's general plan to include the 200-acre SCSP site. In September 2007, plaintiffs petitioned the trial court for a writ of mandate setting aside the City's actions. The trial court denied the petition, and plaintiffs appealed.
In reviewing a writ petition challenging the legality of a lead agency's actions under CEQA, our role is the same as the trial court's. We review the agency's actions, not the trial court's decision, and we apply the same standards of review the trial court applied. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 427.) Our inquiry is limited to whether (1) substantial evidence supports the agency's factual determinations, and (2) the agency proceeded in a manner required by law. (§§ 21168, 21168.5; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 705 (Woodward Park).) The agency abuses its discretion in certifying an EIR as complying with the requirements of CEQA if substantial evidence does not support the agency's factual determinations or if the agency has not proceeded in a manner required by law. (§ 21168.5; Vineyard Area Citizens, supra, at p. 426.)
We apply the substantial evidence standard of review to the agency's factual determinations. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 (Western States Petroleum).) For purposes of CEQA, substantial evidence "means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Cal. Code of Regs., tit. 14, § 15384, subd. (a) (the Guidelines).)*fn3 "Argument, speculation, unsubstantiated opinion or narrative, [or] evidence which is clearly erroneous or inaccurate... does not constitute substantial evidence." (Ibid.)
By contrast, questions concerning the proper interpretation or application of the requirements of CEQA are matters of law. (See Save our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118 (Save Our Peninsula).) As a matter of law, CEQA requires that an EIR include detailed information concerning, among other things, the significant environmental effects of the project under consideration. (§§ 21100, 21100.1.) When the informational requirements of CEQA are not met but the agency nevertheless certifies the EIR as meeting them, the agency fails to proceed in a manner required by law and abuses its discretion. (Save Our Peninsula, supra, at pp. 117-118.) "'The EIR is the heart of CEQA,' and the integrity of the process is dependent on the adequacy of the EIR. [Citations.]" (Ibid.)
The EIR is presumed legally adequate, however (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740; § 21167.3), and the agency's certification of the EIR is presumed correct (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530). Persons challenging the EIR therefore bear the burden of proving it is legally inadequate and that the agency abused its discretion in certifying it. (Ibid.; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, at p. 740.)
In reviewing an agency's actions under CEQA, we must bear in mind that "the Legislature intended the act 'to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.'" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390.) "The EIR is the primary means of achieving the Legislature's considered declaration that it is the policy of this state to 'take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.' [Citation.]... An EIR is an 'environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.' [Citations.] The EIR is also intended 'to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.' [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government." (Id. at p. 392.)
Indeed, "'[t]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA.' [Citation.] The error is prejudicial 'if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.' [Citation.]" (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-722.) "In other words, when an agency fails to proceed as required by CEQA, harmless error analysis is inapplicable.... [I]n such cases, the error is prejudicial. [Citations.]" (County of Amador v. El Dorado County Water Agency (1999)76 Cal.App.4th 931, 946.)
We must also bear in mind that we do not "pass upon the correctness" of the EIR's environmental conclusions, but only its sufficiency as an informative document. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Goleta Valley).) "We may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable.... We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements." (Ibid.; Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1447 [Fourth Dist., Div. Two] (Save Round Valley).)
IV. ANALYSIS/WATER SUPPLY IMPACTS
The SCSP area overlies an extensive groundwater basin known as the Beaumont Basin. The Beaumont Basin is the "largest single source" of water from which several water districts in the San Gorgonio Pass area, including the Beaumont Cherry Valley Water District (the BCVWD), the Yucaipa Valley Water District, the Cabazon Water District, and the South Mesa Water Company, draw water to serve their customers. The BCVWD supplies domestic and irrigation water to the City and surrounding communities.
During the mid-1960's, the United States Geological Survey estimated that the Beaumont Basin held 1.1 million acre-feet of groundwater at a depth of 1,000 feet below ground surface.*fn4 The United States Geological Survey's estimate formed the basis of a general consensus that the base of usable water in the Beaumont Basin was at 1,000 feet below ground surface. More recently, the BCVWD drilled a test well to a depth of 1,500 feet below ground surface, and results suggested that "high quality groundwater" existed in "large quantities" below 1,000 feet below ground surface. According to the BCVWD, other deep wells drilled by Sunny-Cal, the Southern California Professional Golfers Association, and others indicated this deep water source was "relatively wide spread" in the Beaumont Basin.
During the years it operated the egg farm, Sunny-Cal pumped water directly from the Beaumont Basin, using wells on the 200-acre SCSP site, for use in operating the egg farm. Between 1997 and 2001, Sunny-Cal used an average of 1,340 acre-feet per annum (afa) of Beaumont Basin groundwater in operating the egg farm. After the egg farm ceased operating in late 2005, Sunny-Cal began using the project site for cattle ranching and feed crop operations and used far less water, around 50 afa. In order to secure water for the SCSP, the SCSP provides it is to be annexed to the service area of the BCVWD.
2. The 2004 Adjudication and Judgment
In 2001, the City, the City of Banning, the BCVWD, the Yucaipa Valley Water District, and the South Mesa Water Company formed a joint powers agency, namely, the San Timoteo Watershed Management Authority (the STWMA), in order to formulate and implement a water resources management program for the San Timoteo Watershed, a large drainage area that includes the Beaumont Basin. In 2003, the STWMA filed a lawsuit in the Riverside County Superior Court, seeking to adjudicate the rights of several private parties and public agencies to Beaumont Basin groundwater.*fn5 The public agency defendants consisted of the City, the City of Banning, the BCVWD, the Yucaipa Valley Water District, and the South Mesa Water Company. The private party defendants included Sunny-Cal and its owners, Manheim, Manheim and Berman (Manheim), and nine other parties who claimed rights to Beaumont Basin groundwater.
In February 2004, the parties to the suit entered into a stipulated judgment (the 2004 Adjudication or Judgment). The private party defendants were identified as "overlying parties" and the public agency defendants as "appropriator parties." The overlying parties were defined as owners of land overlying the Beaumont Basin who had previously exercised "overlying water rights" to pump water from the basin, and their successors and assigns.
Sunny-Cal and Manheim were treated as one overlying party and were awarded 1,784 afa in "overlying water rights" to Beaumont Basin groundwater. Their 1,784 afa entitlement was based in part on a "five-year rolling average" of the amount of water Sunny-Cal had drawn from the basin each year between 1997 and 2001, or 1,340 afa. All overlying parties, including Sunny-Cal and Manheim, were awarded a total of 8,650 afa in overlying water rights.
Concomitantly, the Judgment stipulated that the "safe yield" of the Beaumont Basin was 8,650 afa for each of the 10 years following the February 2004 entry of the Judgment, and defined "safe yield" as "the maximum quantity of water which can be produced annually from a [g]roundwater [b]asin under a given set of conditions without causing a gradual lowering of the groundwater level leading eventually to depletion of the supply in storage." The Judgment expressly acknowledged that the Beaumont Basin was "at or near a condition of [o]verdraft," and defined "overdraft" as "a condition wherein the total annual production from a [g]roundwater [b]asin exceeds the [s]afe [y]ield thereof."
The Judgment provided that to the extent any overlying party obtained water service from an appropriator party, the overlying party would forebear use of that volume of water, and an equivalent amount of water would be "earmarked" for use by the overlying party. The Judgment acknowledged that this provision was intended to ensure that the overlying party would receive credit towards satisfying "the water availability assessment provisions" of Government Code section 66473.7 and Water Code section 10910 et seq., "or other similar provisions of law, equal to the amount of groundwater earmarked...."
The Judgment also adopted and ordered the parties to comply with a "[p]hysical [s]olution" "[i]n accordance with the mandate of Section 2 of Article X of the California Constitution." (California American Water v. City of Seaside (2010) 183 Cal.App.4th 471, 480 ["[a] physical solution is an equitable remedy designed to alleviate overdrafts and the consequential depletion of water resources in a particular area, consistent with the constitutional mandate to prevent waste and unreasonable water use...."].) The physical solution enjoined the parties from producing groundwater from the Beaumont Basin except as provided in the Judgment and addressed "all [p]roduction and [s]torage within the Beaumont Basin." The physical solution was intended "to establish a legal and practical means for making the maximum reasonable beneficial use of the waters of Beaumont Basin, to facilitate conjunctive utilization of surface, ground and Supplemental Waters [defined as waters imported from outside the Beaumont Basin], and to satisfy the requirements of water users having rights in, or who are dependent upon, the Beaumont Basin." The Judgment empowered a "[w]atermaster," consisting of a committee of persons nominated by the appropriator parties, to enforce the physical solution and develop "a groundwater management plan and program for the Beaumont Basin[.]"
In accordance with the Judgment and as part of the project approvals, Sunny-Cal and Manheim agreed to assign their 1,784 afa in overlying water rights to the BCVWD. In exchange, the BCVWD agreed to "earmark" 1,784 afa of Beaumont Basin groundwater specifically and exclusively for the SCSP. After the SCSP was downsized in early 2006 to exclude the 120-acre portion of the Danny Thomas Ranch north of Cherry Valley Boulevard, Sunny-Cal and the BCVWD agreed to allocate 300 afa of Sunny-Cal/Manheim's 1,784 afa entitlement to "Sunny-Cal North" or to the 120-acre portion of the Danny Thomas Ranch. The other 1,484 afa was allocated to the 200-acre SCSP area south of Cherry Valley Boulevard.
3. The 2005 Water Supply Assessment (the WSA)
As indicated in the Judgment and as explained in Vineyard Area Citizens, supra, 40 Cal.4th at page 433: "Government Code section 66473.7 generally requires a city or county, before approving a subdivision map for a residential development of more than 500 units, to obtain from the applicable public water system a 'written verification' that adequate water supplies will be available for that project as well as other existing and planned future uses for a projected 20-year period....
"Water Code sections 10910 to 10912... apply more broadly to any large land use project (not only residential developments) and to approval of any such project subject to CEQA (not only to subdivision map approvals). (Water Code, §§ 10910, subd. (a), 10912, subds. (a), (b).) They require the city or county considering a project to obtain, at the outset of the CEQA process, a water supply 'assessment' from the applicable pubic water system. (Wat. Code, § 10910, subd. (b).) The 'water supply assessment' is then to be included in any CEQA document the city or county prepares for the project. (Wat. Code, § 10911, subd. (b).)" (Fn. omitted.) CEQA, in turn, requires compliance with these Water Code provisions. (Pub. Resources Code, § 21151.9.)
In March 2005, the BCVWD prepared a water supply assessment, the WSA, for the original 323.3-acre, 907-residential unit SCSP. The WSA estimated that the original SCSP would require up to 706 afa of water, including 588 afa of potable water suitable for drinking, and 118 afa of irrigation or recycled water, and concluded that sufficient supplies of water were available to meet the demands of the SCSP for 20 years. This conclusion was based on Sunny-Cal/Manheim's agreement to assign their entire 1,784 afa entitlement of overlying water rights in the Beaumont Basin to the BCVWD, and the BCVWD's agreement to earmark and supply up to an equal amount of Beaumont Basin groundwater to the ...