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Water Supply Assessments Not Subject to Direct Judicial Challenge

By: Alfred E. Smith

In an important decision limiting the ability of parties to challenge water supply assessments ("WSAs"), the California Court of Appeal, Second District, held that a WSA is not subject to direct judicial challenge.  (California Water Impact Network v. Newhall County Water District, et al., No. B197570, Second District, Div. Seven, April 16, 2008).  Instead, the adequacy of a WSA is properly reviewed as part of a challenge to an EIR after project approval.

The California Water Impact case involved an appeal challenging the WSA prepared by Newhall County Water District, at the request of the City of Santa Clarita, as part of the City’s Environmental Impact Report ("EIR") for a large-scale industrial/business park development.  Under the California Environmental Quality Act ("CEQA"), the City was required to prepare and certify an EIR before it could approve the project.  Under Water Code section 10910 et seq., the City was required to include a WSA in the EIR to assess the sufficiency of water supplies for the project.

On appeal, the Plaintiff argued that; (1) it is entitled to directly challenge a WSA by either traditional or administrative mandamus; (2) it is not required to exhaust administrative remedies with the City; and (3) without an opportunity to assert a direct challenge, the water suppliers will be able to evade direct review of the WSA.

The appellate court disagreed.  The court reasoned that a water supply assessment is a technical, informational, advisory opinion of the water provider, not a "final" act or determination subject to direct mandamus review.  Noting that the City as lead agency had authority to approve, disapprove or request modifications to the water supply assessment, the court also criticized the Plaintiffs for prematurely seeking judicial intervention before the City acted on the EIR.  Citing California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219, the court concluded that adequate judicial review of the WSA exists as part of a challenge to the EIR after the City certified the EIR and approved the project case.

The court’s decision is helpful to agencies preparing WSAs as it provides needed clarification, protection and limits on the scope of litigation that may be filed attacking WSAs.  The decision is also instructive and helpful in the larger context of the EIR process.  As stated by the court in rejecting Plaintiff’s claim, "a direct challenge to a WSA in the middle of the EIR review proceedings could delay the review process and could preclude the lead agency from completing and certifying the EIR within the timeframes required under CEQA."

To view a copy of the decision, please click here.

Alfred E. Smith, II specializes in environmental, water and complex commercial litigation.  He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil.  Alfred is a graduate of the Harvard Law School, and he is an appointed member of the Association of California Water Agencies’ (ACWA) Legal Affairs Committee.  He can be reached at (213) 612-7800 or

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