IN THE SUPR E ME COUR T OF THE STAT E OF CALIFORNIA

No. S132972 IN THE SUPR E ME COUR T OF THE STAT E OF CALIFORNIA VINEYARD AREA CITIZENS FOR RESPONSIBLE GROWTH, INC., et al., Plaintiffs and Petitioners v. CITY OF RANCHO CORDOVA, Defendant and Respondent, and SUNRISE DOUGLAS PROPERTY OWNERS ASSOCIATION, et al., Real Parties in Interest and Respondents. AFTER DECISION BY THE COURT OF APPEAL THIRD APPELLATE DISTRICT, CASE NO. C044653 Appeal from the Superior Court of the County of Sacramento, Case No. 02 CS 01214 APPLICATION TO FILE AMICUS CURIAE BRIEF, AND AMICUS CURIAE BRIEF OF CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF CITY OF RANCHO CORDOVA Michael H. Zischke (Bar No. 105053) R. Clark Morrison (Bar No. 130208) Scott B. Birkey (Bar No. 209981) Morrison & Foerster LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Attorneys for Amici Curiae California State Association of Counties and League of California Cities

TABLE OF CONTENTS Page I. INTRODUCTION... 1 II. INTEREST OF THE AMICI CURIAE... 1 III. ASSISTANCE IN DECIDING THE MATTER... 2 IV. CONCLUSION... 3 I. INTRODUCTION... 4 II. ARGUMENT... 6 A. Consistent with CEQA s Well-Established Standards of Review, this Court Should Confirm that an Agency s Determinations in an EIR Are to Be Upheld if Supported by Substantial Evidence... 6 B. Local Governments Should Be Allowed to Rely on Reasonable Projections of Future Water Supplies When Planning Long-Term Development Projects... 10 1. Successful Long-Term Planning Depends upon Local Governments Ability to Develop and Rely on Reasonable Projections of Future Water Supplies... 10 2. The Case Law Supports Local Governments Ability to Develop and Rely on Reasonable Projections of Future Water Supplies... 17 C. A Lead Agency Is Not Required to Recirculate an EIR If a Comment Raises an Issue the Draft EIR Did Not Analyze and that the Lead Agency Determines to Be Less Than Significant in Its Response to that Comment... 20 III. CONCLUSION... 22 -i-

TABLE OF AUTHORITIES CASES Page(s) California Oak Foundation v. City of Santa Clarita (2005) Cal.App.4th, 35 Cal.Rptr.3d 434... 19 Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d at 570... 7, 10, 12, 13, 22 County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931... 13, 17 Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th at 1266... 5, 7, 8, 9, 10 Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391... 16 Laurel Heights Improvement Ass n v. Regents of Univ. of Cal. (Laurel Heights I) (1988) 47 Cal.3d at 407...7, 9, 16 Laurel Heights Improvement Ass n v. Regents of Univ. of Cal. (Laurel Heights II) (1993) 6 Cal.4th at 1135... 21, 22 Long Beach Savings & Loan Ass'n v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249... 7 Marin Municipal Water Dist. v. KG Land Cal. Corp. (1991) 235 Cal.App.3d 1652... 21 Markley v. City Council (1982) 131 Cal.App.3d 656... 7, 8, 9 Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892... 19, 20 Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715... 18, 19 ii

TABLE OF AUTHORITIES (Cont'd) Page Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818... 19 Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612... 7 Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780... 9 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2005) 127 Cal.App.4th 490... 8 STATUTES 14 Cal. Code Regs. / CEQA Guidelines 15088.5(a)... 21 15088.5(b)... 21 15088.5(e)... 21, 22 Cal. Rules of Court Rule 29.1(f)... 1 Go v't Code 65300... 11 65302(d)... 12 65352.5(a)... 12 65450... 11 65451(a)(2)... 11 66473.7 et seq.... 4, 13 66473.7(b)(1)... 14 66473.7(c)... 13 66473.7(g)... 14 Water Code 10910 et seq.... 4, 13 10910(a)... 14 10910(c)(3)... 13 10911(a)... 14 10911(c)... 14 iii

APPLICATION TO FILE AMICUS CURIAE BRIEF I. INTRODUCTION Pursuant to California Rules of Court, Rule 29.1(f), amici curiae California State Association of Counties ( CSAC ) and the League of California Cities ( League ) respectfully request leave to file the accompanying brief of amici curiae in support of the City of Rancho Cordova. This application is timely made within 30 days after the filing of the reply brief on the merits. II. INTEREST OF THE AMICI CURIAE The California State Association of Counties is a non-profit corporation. The membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels Association of California and is overseen by the Association s Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties. The League of California Cities is an association of 476 California cities united in promoting the general welfare of cities and their citizens. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys representing all 16 divisions of the League 1

from all parts of the state. The committee monitors appellate litigation affecting municipalities and identifies those that are of statewide significance. The issues presented in this case implicate the ability of California counties and cities to comply with the California Environmental Quality Act in planning for urban development. For these reasons, CSAC and the League have a substantial interest in this matter. III. ASSISTANCE IN DECIDING THE MATTER The accompanying brief will assist the Court in deciding these matters. Amici address the possible effects of this Court s decision on the ability of California cities and counties to implement the California Environmental Quality Act and to plan for future development. As local governments who serve as lead agencies for purposes of the California Environmental Quality Act and land use approvals, amici offer the perspective and experience of agencies tasked with ensuring these laws and policies are properly implemented. As the agencies who regularly defend against most challenges to environmental impact reports, amici also offer an important statewide perspective regarding the standard of review question posed by this Court in granting review. 2

IV. CONCLUSION For the foregoing reasons, CSAC and the League respectfully request that the Court accept the accompanying brief for filing in this case. Dated: November, 2005 MICHAEL H. ZISCHKE CLARK MORRISON SCOTT B. BIRKEY Morrison & Foerster LLP By: Michael H. Zischke Attorneys for Amici Curiae CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA CITIES 3

AMICUS CURIAE BRIEF IN SUPPORT OF CITY OF RANCHO CORDOVA I. INTRODUCTION The California State Association of Counties and the League of California Cities file this amicus curiae brief in support of the City of Rancho Cordova. The issues in this case are of concern to all California counties and cities who are charged with approving long-term planning projects and complying with the California Environmental Quality Act ( CEQA ). Amici will focus on three independent reasons the Court of Appeal s decision should be affirmed. First, in the context of CEQA, this Court is considering the new SB 221 (Gov t Code 66473.7 et seq.) and SB 610 (Water Code 10910 et seq.) water supply verification procedures for the first time. As the Court considers these procedures, it is critical to cities and counties that the Court does so in a manner that affirms and applies the substantial evidence standard of review principles developed by this Court in a long-line of prior decisions. The application of that standard has important implications for the standard of review question posed by this case. It is undisputed that appellate review in an administrative mandate case is de novo. When an appellate court is conducting its de novo review of a substantial evidence question, however, the appellate court (like the 4

trial court) must uphold the agency s decision if it is supported by substantial evidence. This necessarily means that the appellant must lay out the agency s evidence and show why it is lacking. Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266. In particular, when a trial court has reviewed the agency record and found that substantial evidence supports the agency decision, the appellant must demonstrate that the trial court was incorrect and that the decision is not supported by substantial evidence. Second, as this Court applies that substantial evidence to the questions at issue here, this Court should recognize as the Court of Appeal did that projections of growth and available water supply constitute the requisite substantial evidence to support water supply determinations under CEQA. This is an issue that is critically important for every city and county across California. Cities and counties would be unable to meet their statutory obligation to adopt long-term plans if they were required to guarantee the availability of long-term water supplies before adopting long-term land use plans. Cities and counties should be able to rely upon reasonable projections of future water supplies provided those projections are supported by substantial evidence in the record particularly when those projections are coupled with the kinds of conditions of approval at issue in this case and with the safeguard requirements of 5

statutory water supply verification procedures required by SB 221 and SB 610. Finally, this case presents an important issue to cities and counties on the recirculation of EIRs for a second round of public review. If this Court accepts Petitioners position, recirculation of EIRs for a second round of public review will become the rule, rather than the exception it is intended to be. Petitioners claim that an agency is required to recirculate an EIR any time a comment suggests an additional impact is potentially a significant impact and must be evaluated, even when the agency determines in response that the impact is not significant. This is contrary to the case law on recirculation and would dramatically expand and extend the CEQA process without any corresponding public benefit. It would increase the potential costs of preparing an EIR without improving the usefulness of the EIR as a tool of public disclosure or informed decision making. II. ARGUMENT A. Consistent with CEQA s Well-Established Standards of Review, this Court Should Confirm that an Agency s Determinations in an EIR Are to Be Upheld if Supported by Substantial Evidence. Petitioners characterize the question before this court as what is the appellate standard of review in a CEQA case? Petitioners Opening Brief at 1. Amici respectfully submit that the standard of appellate review is well-established, and that the substantial evidence standard governs the 6

factual determinations in the EIR at issue in this case. E.g., Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights Improvement Ass n v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376 ( Laurel Heights I ). The specific issue before this Court now is the legal status of a trial court ruling on a substantial evidence question when that substantial evidence question is reviewed on appeal. It is undisputed that the court of appeal and the trial court occupy identical positions with respect to an agency s administrative record and that appellate review in an administrative mandate case is de novo. E.g., Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 622; Long Beach Savings & Loan Ass n v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 260. As several courts have noted, when a court is reviewing an agency decision under this standard, the lack of a fair statement of facts in a CEQA case forfeits evidentiary claims. For example, in Defend the Bay, supra, 119 Cal.App.4th at 1266, the court explained that an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. Other courts have similarly found that a petitioner in a mandamus action has a duty to state fairly the evidence in the record. E.g., Markley v. City Council (1982) 131 Cal.App.3d 656, 673 (cited by the court in Defend the Bay). 7

A petitioner s failure to comply with its duty to state fairly the evidence in the record to the trial court should not be overlooked by the appellate court, notwithstanding the fact that the court is reviewing the case de novo. Both Defend the Bay and Markley support the principle that a petitioner s failure to comply with this obligation in the trial court constitutes a forfeiture of its evidentiary claims, which cannot be reinstated upon appeal, regardless of whether that evidence was developed later in the trial court proceedings by the respondent and elaborated upon in the appellate proceedings. Here, the appellate court determined that Petitioners failed to meet their obligation to fairly present the evidence to the court. As the appellate court observed: petitioners do not fairly state the facts and have therefore forfeited many of their claims.... [ ] If petitioners assumed that because we review the legal issues de novo, they did not have to paint the facts fairly, they are wrong. Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2005) 127 Cal.App.4th 490, 497-98. Under Defend the Bay and Markley, Petitioners failure to fairly state the facts is fatal to their claims. Moreover, amici respectfully submit that, in considering the nature of de novo review on appeal, it is important to also consider the burden of proof that a party bears when challenging a substantial evidence decision by a CEQA lead agency. Both in the trial court and on appeal, a petitioner 8

or appellant bears the burden of demonstrating that the agency decision is not supported by substantial evidence. On the appeal of a substantial evidence question, however, when the trial court has already identified substantial evidence in the record that supports the lead agency s decision, then the appellant under Defend the Bay and Markley bears the burden of demonstrating that the evidence identified by the trial court is not sufficient. This burden on an appellant necessarily follows from the fact that a reviewing court s role is to determine whether there is substantial evidence to support the agency s decision, not whether there is substantial evidence to support a petitioner s contrary position. Laurel Heights I, supra, 47 Cal. 3d at 407. See also, e.g., Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791 ( The fact that we review de novo a grant of summary judgment does not mean that the trial court is a potted plant in that process. ). In this case, the trial court reviewed the evidence in the record regarding water supplies for the project and held there was substantial evidence on the issue of water supplies to support the Board s action certifying the EIR for the project. Trial Court s Final Order and Ruling at 14-15. Petitioners were therefore obligated to lay out the evidence favorable to the Respondent including the trial court s holding that substantial evidence supported the Board s action and show why it is 9

lacking. Defend the Bay, supra, 119 Cal.App.4th at 1266. This Court should find that Petitioners failure to do so was fatal. Id. B. Local Governments Should Be Allowed to Rely on Reasonable Projections of Future Water Supplies When Planning Long-Term Development Projects. Petitioners make a variety of arguments attacking the City s water supply planning for the Sunrise Douglas development, essentially alleging that a lead agency must identify with certainty the water supply for longterm planned development. Plaintiffs Opening Brief at 2-4. The rule Petitioners seek, however, is inconsistent with counties and cities ability to implement successful long-term planning and inconsistent with the case law. 1. Successful Long-Term Planning Depends upon Local Governments Ability to Develop and Rely on Reasonable Projections of Future Water Supplies. A local government s long-term planning efforts and its identification of future water supplies must go hand-in-hand. Both are necessary for a local government to plan for long-term growth and development. This principle is reflected in the fact that the Government Code requires counties and cities to adopt a long-term comprehensive general plan, which this Court has confirmed is the constitution for all future development within a county or city. Citizens of Goleta Valley, supra, 52 Cal.3d at 570. More specifically, the Government Code expressly states that counties and cities must adopt a comprehensive, long- 10

term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency s judgment bears relation to its planning. Gov t Code 65300. In addition to planning at the general plan level, the Government Code allows local governments to develop and implement specific plans for more detailed long-term land use planning for particular geographical areas. Gov t Code 65450. A specific plan is a good planning tool for systematically implementing the general plan within all or a portion of the planning area. Amici Curiae s Request for Judicial Notice, Exhibit A at 152. Like general plans, a specific plan comprehensively covers land use planning within its particular geographic area, requiring details pertaining to transportation, sewage, water, drainage, solid waste disposal, energy, and other essential facilities. Gov t Code 65451(a)(2). This c ase involves just such a specific plan the Sunrise Douglas Community Plan/SunRidge Specific Plan. AR 1:107-180, 181-284. This specific plan included a comprehensive analysis of the land use planning associated with development in the Sunrise Douglas Community Plan and SunRidge Specific Plan areas, and that analysis specifically evaluated the potential water supply alternatives for those areas. AR 7:3217. The fundamental planning functions inherent in general or specific plans require counties and cities to look long term, because these plans are often projected 20 or more years into the future. As this Court has 11

previously noted, such long-term land use plans [b]y their very nature... embody fundamental policy decisions that guide future growth and development. Citizens of Goleta Valley, supra, 52 Cal.3d at 571. The long-term planning process is both geographically and temporally structured to transcend the provincial. Id. To implement these comprehensive and long-term land use plans, a local government must also identify water supply sources to accommodate the growth and development projected in these plans in a roughly parallel process. The California Legislature has enacted legislation acknowledging this principle of sound planning. For example, a county or city s general plan is required to consider water resources as part of the general plan s mandatory conservation element. Gov t Code 65302(d). The Government Code requires that the portion of the conservation element discussing water resources shall be developed in coordination with any countywide water agency and with all district and city agencies that have developed, served, controlled or conserved water for any purpose for the county or city for which the plan is prepared. Id.; see also Gov t Code 65352.5(a) (noting that it is vital that there be close coordination and consultation between California s water supply agencies and California s land use approval agencies to ensure that proper water supply planning occurs in order to accommodate projects that will result in increased demands on water supplies. ). 12

More recent water supply legislation further acknowledges this approach to long-term planning. Gov t Code 66473.7 et seq. (SB 221) & Water Code 10910 et seq. (SB 610). SB 221 and SB 610 require counties and cities to evaluate projected water supplies in light of projected growth while planning for residential developments of a certain size. For example, SB 610 requires that a water supply assessment be prepared to evaluate whether the public water systems water supplies will meet the projected water demand associated with the proposed project. Water Code 10910(c)(3). Similarly, SB 221 requires a written verification of the public water system s ability or inability to provide a sufficient water supply that will meet the projected demand associated with the proposed subdivision. Gov t Code 66473.7(c). Accordingly, planning for water resources necessarily requires a local government to make reasonably foreseeable projections in keeping with its long-term land use plans that are intended to guide future growth and development. Citizens of Goleta Valley, supra, 52 Cal.3d at 571. Local governments must therefore necessarily consider future sources of water to implement the land use plan s projected growth and development needs, and to evaluate methods of accommodating or serving those needs. Further, local governments must coordinate these planning functions to ensure that land use planning is in step with water supply planning. In other words, as planning for a development project progresses and is 13

entitled pursuant to the long-term land use plan, the local government must identify water supplies with commensurate certainty. Thus, at the initial planning stages, a local government need only indeed, often can only rely on reasonably foreseeable projections of water supplies that are often less than certain. This aspect of sound planning practice is buttressed by the fact that SB 221 and SB 610 provide safeguards against land use development in the absence of adequate water supplies. The structure of these statutes supports the concept that, early in the planning process when CEQA documents are being prepared for a legislative action, cities and counties must necessarily rely upon projections of water supply i.e., not guarantees in evaluating the impacts of a project. E.g., Gov t Code 66473.7(g); Water Code 10910(a). It is only later, when tentative subdivision maps for more than 500 units are being approved, that a local government must condition a project approval based on an actual showing, satisfying the higher evidentiary requirements of SB 221, that a sufficient water supply shall be available. Gov t Code 66473.7(b)(1); see also Water Code 10911(a), (c). The Court should recognize this statutory structure in its decision in this case. The conditions of approval at issue here are consistent with, and actually stronger than, the conditions authorized by SB 221. Mitigation Measure WS-1 specifically forbids the granting of any entitlements for 14

urban development, not just those for more than 500 residential units, within the Sunrise Douglas Plan area unless agreements and financing for supplemental water supplies are in place. AR 2:345. Consistent with the discussion above, and as the Sacramento County Board of Supervisors found, Mitigation Measure WS-1 and other such conditions of approval in this case were designed to ensure that the pace of development does not outstrip the availability of water via the Zone 40 conjunctive use program. AR 2:352-353 (emphasis added). Indeed, requiring local governments to identify water supplies with absolute certainty at the initial planning stage could result in environmentally harmful water grabs or growth-inducing effects. Such a requirement could create an incentive for project proponents to hoard water to establish the requisite water supply certainty at a stage in planning when actual development of the project may be far from certain. Moreover, excess water supply in a region with only a preliminary land use plan could be touted as a justification for growth and development, an example of placing the proverbial cart before the horse. County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 949. The Final EIR at issue here identified long-term water supplies for the project, and the agency determined that such supplies will be sufficient. AR 4:01196-01203. Substantial evidence in the record supports that determination. E.g., AR 4:01214-01217; AR 4:01253-01255; 15

AR 40:13412-13419; AR 40:13292-13293; AR 40:13537; AR 51:16648-16653; AR 51:16639-16643. Petitioners disagree with that determination, and make various arguments against the reliability of such water supplies. However, there is nothing in SB 221 or SB 610 that requires the reliability of water supplies to be free from dispute. In fact, it is well settled that a disagreement among experts is not sufficient to set aside a determination in an EIR. E.g., Laurel Heights I, supra, 47 Cal.3d at 407-08; Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391. Here, it is not even the case that there is such a disagreement among experts, since Petitioners never questioned the certainty of the water supplies at the administrative level. Any such dispute, therefore, is solely between the agency s experts and the unsupported claims of the Petitioners at this late stage of these proceedings. A water supply analysis must be set aside if there is no substantial evidence demonstrating an available water supply, or that the identified water supply is illusory and entirely unsupported by substantial evidence. Here, however, where there is evidence to support the agency s decision but a dispute about the adequacy of the evidence, the agency is fully justified in relying on the environmental conclusions reached by the experts that prepared its EIR. Laurel Heights I, supra, 47 Cal.3d at 408. 16

2. The Case Law Supports Local Governments Ability to Develop and Rely on Reasonable Projections of Future Water Supplies. The courts have recognized the fact that a local agency must develop and rely on plans for reasonable projections of future water supplies to implement these long-term comprehensive land use plans. County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931 is particularly instructive on this issue. In County of Amador, the Third District Court of Appeal held that a local government may not prepare a plan for identifying water supply sources before it has adopted a final general plan. Id. at 949. According to the court, approving a water program before adopting a general plan... precludes any proper review of significant growth issues. Id. at 950. County of Amador therefore requires that long-term land use plans must be adopted before local governments should begin identifying water supply sources, or, at the very least, that long-term land use planning should be performed simultaneously with local governments efforts to identify a water supply source. As such, local governments are necessarily required to identify reasonably foreseeable future rather than certain or guaranteed water supplies at the initial land use planning stages. As the County of Amador court explained, if a long-term land use plan calls for increased development and population, a water plan designed to meet that need makes sense. Id. That water plan, however, can only be designed 17

to meet that need if it can rely on reasonably foreseeable future supplies of water. In light of County of Amador, Petitioners suggested rule would make it impossible for a local government to plan for any long-term development projects. Local governments would be required to identify with certainty a water supply source before the local government began any long-term planning efforts. County of Amador, however, disapproves of a local government identifying specific water supply projects before adopting a long-term land use plan. Petitioners suggested rule would thus result in an intractable planning conundrum. The line of cases addressing so-called paper water similarly supports a local government s ability to rely on reasonably foreseeable future water supplies for long-term planning. Petitioners mischaracterize these precedents, claiming they support their position. This case law, ho we ver, disapproves of an agency relying on illusory not future water supplies. A reliance on reasonably foreseeable future water supplies is not a reliance on illusory water supplies. For example, in Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, the Second District found inadequate an EIR for a large-scale mixed residential and commercial development that relied in part on mere water entitlements, otherwise known as paper water. These entitlements 18

were predicated on the State Water Project a state water system that had not been completed. Id. at 721-22. A reasonably accurate estimate regarding the water supply for the development was therefore impossible. Id. at 723. Accordingly, the court determined that this reliance on paper water was effectively an improper reliance on illusory water supplies. Id. at 723-24. See also California Oak Foundation v. City of Santa Clarita (2005) Cal.App.4th, 35 Cal.Rptr.3d 434 (another Second District case involving a lead agency s reliance on entitlements predicated on the State Water Project). Similarly, in Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, the Fourth District found inadequate an EIR that falsely stated that a sufficient supply of water was available for a mining operations. The water district identified to supply water to the mining operation indicated two weeks before the Orange County Board of Supervisors approved the EIR that it was not in a position to determine if, and under what conditions, it is capable of providing water service to the proposed development. Id. at 831. Like the EIR in Santa Clarita Organization for Planning the Environment, the EIR in Santiago County Water District was inadequate because it therefore relied on illusory water supplies. The Third District s decision in Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892 19

perhaps best captures this fundamental understanding. Planning and Conservation League also involved so-called paper water, referred to by the court as an illusion. Id. at 914 & fn. 7. In reviewing an EIR prepared for a long-term water supply agreement, the court observed: We are not at liberty to review the economics or politics of water policy. Our task is extraordinarily limited and our focus is narrow. Did the EIR adequately describe the existing conditions and offer a plausible vision of the foreseeable future? Id. at 911. The court found that the paper water so called because it exists only on paper upon which the EIR relied, made the EIR deficient. Id. at 914-16. Pointedly, the court found the EIR lacked any projections relating to land planning [or] demand for water. Id. at 919. None of this or any other case law indicates a local government is precluded from relying on reasonably foreseeable future water supplies. To the contrary, the case law supports the fundamental planning principle that a local government may consider a plausible vision of the foreseeable future in order to implement long-term planning. Id. at 911. C. A Lead Agency Is Not Required to Recirculate an EIR If a Comment Raises an Issue the Draft EIR Did Not Analyze and that the Lead Agency Determines to Be Less Than Significant in Its Response to that Comment. In its responses to comments regarding the project s impacts on the Cosumnes River, the final EIR indicated that groundwater pumping may impact the Cosumnes River and salmonid species, but that that impact 20

would be less than significant. AR 5:01949-01953. Petitioners argue that the inclusion of this discussion in the final EIR s responses to comments, rather than in a new EIR, violated CEQA. Petitioners Opening Brief at 76. This position is untenable. Even though an EIR is required to discuss briefly the impacts found to be less than significant, it is perfectly appropriate to respond in the final EIR to additional issues that are raised for the first time during the EIR comment period. Requiring an entirely new EIR in such circumstances would result in unwarranted delay and extension of the CEQA process. CEQA was not intended to be a mere paper-generating statute or to enable project opponents to stop a project with inappropriate and excessive delay. This Court analyzed in detail recirculation requirements in Laurel Heights Improvement Ass n v. Regents of University of Cal. (1993) 6 Cal.4th 1112 ( Laurel Heights II ). In that case, the Court found that recirculation was required only in certain circumstances. For example, recirculation is not required where the new information added to the EIR merely clarifies or amplifies... or makes insignificant modifications in... an adequate EIR. Id. at 1129-30. This ruling has since been codified in the CEQA Guidelines. 14 Cal. Code Regs. 15088.5(b). Recirculation is thus the exception to the rule, and it is only required when new information indicates a new or substantially more severe significant impact. Id. 15088.5(a); Marin Municipal Water Dist. v. 21

KG Land Cal. Corp. (1991) 235 Cal.App.3d 1652, 1666-67. Further, reasonable doubts concerning recirculation are to be resolved in favor of the agency s determination and decision. 14 Cal. Code Regs. 15088.5(e); Laurel Heights II, supra, 6 Cal.4th at 1135. Cities and counties often receive comments suggesting that additional impacts should be evaluated. If recirculation is required each time such a comment is made, recirculation will become much more common and could become a procedural tactic for project opponents to create delays in the process. This Court has expressed a measure of concern over such a result: [W]e caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement. Citizens of Goleta Valley, supra, 52 Cal.3d at 576. Thus, the Court should not expand CEQA s recirculation requirements, as Petitioners suggest in their briefing. Doing so would inappropriately extend and expand the CEQA process with no corresponding public benefit. 22

III. CONCLUSION For the foregoing reasons, CSAC and the League respectfully request this Court uphold the decision of the court of appeal. Dated: November 23, 2005 MICHAEL H. ZISCHKE CLARK MORRISON SCOTT B. BIRKEY Morrison & Foerster LLP By: Michael H. Zischke Attorneys for Amici Curiae CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA CITIES 23

CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 14(c)(1)) Pursuant to California Rules of Court, Rule 14(c)(1), the text of this brief consists of 4,798 words as counted by the Microsoft Word wordprocessing program used to generate the brief. DATED: November 23, 2005 Michael H. Zischke 24