Court Upholds Public-Private Groundwater Conservation and Recovery Project That Will Serve Customers Throughout Southern California

A proposed public-private partnership project to pump fresh groundwater, which would otherwise evaporate, from an aquifer in the Mojave Desert was upheld by a California Appellate Court on Tuesday. The project, a partnership between the Santa Margarita Water District and a private landowner, is to prevent waste of the water in the aquifer, and ultimately to transport the water to customers throughout southern California.

The Fourth District Court of Appeal issued several opinions in response to challenges alleging the District was not the proper agency to carry out the project’s environmental review under CEQA and that the project’s environmental impact report deferred mitigation, failed to analyze the final version of the Groundwater Management Plan adopted by the County of San Bernardino and contained a misleading and inaccurate project description. The lawsuits also alleged that a memorandum of understanding between the District, the County and landowner Cadiz, Inc. executed before certification of the EIR violated CEQA and the County’s Groundwater Management Ordinance. The court held for the District, the County and Cadiz on each point.

In a robust analysis, the court determined that the District was the proper lead agency to oversee the project’s CEQA review. Setting forth a two-prong test for designating a lead agency when a project is undertaken through a public-private partnership, the court determined the District was the proper lead agency on two separate grounds. First, the District was jointly carrying out the project with the private property owner and, second, it was the agency with principal authority for approving and supervising the project as a whole.

The court also concluded the EIR accurately described the project as conserving water, given that the project will conserve water otherwise lost to brine and evaporation, and will improve water supplies throughout California. The court further found that the EIR did not defer mitigation, as the adopted mitigation measures adequately addressed the project’s significant impacts. It went on to rule that those portions of the Groundwater Management Plan that were not included in the draft EIR did “not constitute significant new information requiring recirculation of the EIR.”

Finally, the court determined that the MOU did not violate CEQA or the County’s Groundwater Management Ordinance because its approval was consistent with the Ordinance and was not a “project” under CEQA, as it did not commit the County to any activity with direct or indirect impacts on the environment.

Best Best & Krieger LLP attorneys were part of the legal team that secured this decision on behalf of the Santa Margarita Water District.