C.A. 1st;
A148400

The First Appellate District affirmed a judgment. The court held that the State Water Resources Control Board, in formulating a new policy, adequately addressed the potential environmental effects of surface water users switching to groundwater pumping as a result of the policy.

The State Water Resources Control Board approved a policy designed to maintain instream flows in coastal streams north of San Francisco. Living Rivers Council filed a petition for writ of mandate challenging that decision, arguing that the policy should be vacated because the board’s revised substitute environmental document (RSED) supporting it “sent conflicting signals” regarding whether policy-induced increases in groundwater use would cause significant impacts. Both the substitute environmental document (SED) and the RSED found the policy could cause more people to pump groundwater, and additionally found the impacts on groundwater resources and surface flows would be “significant.” Yet, Living Rivers argued, the RSED “equivocated” by asserting these significant impacts were uncertain or unlikely.

The trial court denied the writ petition.

The court of appeal affirmed, holding that Living Rivers’ challenge to the policy was without merit. The 2010 SED identified increased groundwater pumping as a potential reaction to the policy, although it stated it was “impossible to predict” who or how many persons would take this action. “When the nature of future development is nonspecific and uncertain, an EIR need not engage in ‘sheer speculation’ as to future environmental consequences.” Nonetheless, because of the possibility that the policy would result in increased groundwater pumping, which could cause significant secondary environmental impacts, the 2010 SED evaluated those impacts as part of its analysis. The board later revisited the subject of groundwater pumping and related mitigation measures. The 2013 RSED explained that the 2010 SED’s environmental analysis was misleading in part because it failed to explain that a potential shift from surface water diversions to groundwater pumping was unlikely to cause a net reduction in surface water flows for various reasons, including the logistical challenges of extracting groundwater in certain areas, the availability of other sources of water and the lack of connectivity between groundwater and surface water in many areas. The drafters of the RSED explained their reasoning in some detail and made clear the extent to which the analysis in the RSED differed from that in the original SED. The RSED thus “fulfilled its informational purpose” on the subject of groundwater pumping as a potential significant effect.