Sacramento Superior Court Judge Timothy Frawley’s recent ruling (PDF) in the case challenging East Bay Municipal Utility District’s (EBMUD) approval of its updated water supply plan is a reminder of the importance of fully disclosing potential impacts of a project under the California Environmental Quality Act (CEQA), even when the CEQA project is a programmatic plan and specific projects contemplated by the plan may not yet be ripe for approval.
The project at issue in this case is EBMUD’s update to its Water Supply Management Program 2040 Plan, a planning document intended to identify and recommend solutions to meet EBMUD’s dry-year water supply needs through the year 2040. The Plan presents a Preferred Portfolio to meet water supply needs, which includes dry-year rationing, conservation measures, recycled water programs, and supplemental water supply projects including expansion of the Pardee Reservoir and Lower Bear Reservoir. In 2009, EBMUD certified an environmental impact report (EIR) and approved the Plan. Foothill Conservancy, Friends of the River, and the California Sportfishing Protection Alliance filed a CEQA lawsuit, alleging that EBMUD failed to adequately evaluate the potential impacts of the proposed project, in particular the impacts of the potential reservoir expansions, and failed to adequately evaluate alternatives as required by CEQA.
EBMUD argued that the Plan does not commit to any particular project and, therefore, the EIR was properly a programmatic EIR, eliminating the need for site-specific project level analysis of the reservoir expansions. Essentially, under the Plan, various combinations of the proposed projects could be implemented, but no one project has yet been approved for construction.
In a detailed ruling, Judge Frawley agreed that it was appropriate to prepare a programmatic EIR for the Plan, but found that EBMUD had nonetheless failed to include sufficient information about potential impacts that could result from implementation of the reservoir expansion components of the Plan.
In particular, the Court noted the EIR acknowledges that reservoir expansion would result in inundation of a portion of the Mokelumne River. Yet, the Court found that the EIR did not adequately describe and mitigate for the potential impacts of that inundation on recreational and cultural resources, and public safety. Although a detailed configuration of the Pardee Reservoir expansion had not been developed, there was sufficient information about the potential resources that would be impacted by inundation of the River, and the EIR failed to adequately disclose and mitigate for these potential impacts. The challengers argued that the EIR was inadequate in its evaluation of biological impacts as well, but the Court there found that the EIR sufficiently disclosed the potential impacts on biological resources and that EBMUD, in its project approvals, sufficiently committed to mitigating those impacts.
A programmatic EIR can be a valuable tool for assessing plan-level projects and projects that have future components that remain uncertain or undefined. But, it is important to remember that a programmatic EIR does not excuse the lead agency from disclosing impacts that it knows will result if the project is implemented. Carefully identifying all of a program’s elements early in the environmental review process, and assessing the components of a program that are defined and those that remain undefined, will help frame the scope and specificity of the environmental review, and help the lead agency assure that all potential impacts are properly disclosed.