LANDWATCHMONTEREYCOUNTY v. COUNTY OF MONTEREY

Filed 1/23/07 Certified for publication 2/21/07 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Statement of the Case

In this case, Landwatch Monterey County (Landwatch) claims that the approval of a subdivision project with a mitigated negative declaration (MND) violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000 et seq.)[1]

On May 4, 2004, the Monterey County Board of Supervisors (Board) approved the Cathrein Estates Subdivision and Combined Development Project (Project) and adopted a MND. Landwatch challenged the Boards decision in a petition to the superior court for a writ of mandate. Landwatch claimed the Project posed potentially significant adverse environmental impacts that required the preparation of an environmental impact report (EIR). The trial court denied the petition. Landwatch now appeals from the judgment.

Landwatch renews its claim, arguing that approving the Project with an MND, instead of preparing and EIR, violates CEQA because the Project may have an adverse impact: It may contribute to a severe groundwater overdraft in North Monterey County. Landwatch also claims that the Project violates the Monterey County General Plan and the North County Area Plan.

We affirm the judgment.

Background[2]

In June 1999, real parties in interest Donald Chapin, Jr., and Barbara Chapin (the Chapins) filed an application for the Project, which is located in the Prunedale area of North Monterey County. The Project comprises a 28-lot subdivision on a 143 acre parcel and use permits for grading, connection to a mutual water system, and the removal of trees.[3]

Water Supply

North Monterey County has two primary watersheds, the Pajaro River and the Salinas River, which, respectively, channel water into the Pajaro and Salinas sub-basins. The Pajaro sub-basin is subdivided into three sub-areas: Pajaro, Springfield Terrace, and Highlands North. The Salinas sub-basin is divided into two sub-areas: Highlands South and Granite Ridge. The geographic delineation of sub-areas is based on both jurisdictional considerations and geological characteristics.

Since 1952, several studies of the North Monterey County groundwater supply have revealed a significant, area-wide overdraft of groundwater.[4] All sub-areas are in states of overdraft and require either a reduction in demand or a supplemental supply, but the severity of the overdraft in each sub-area varies due to the particular mix of uses and underlying geology. Accordingly, the immediacy of the overdraft problem in each sub-area and the types of short-term and/or long term solutions needed to address it also vary.[5]

The Project is located at the southern border of the Granite Ridge sub-area, which is eponymously named after a granite ridge shelf that runs from north to south but drops off as it moves south. Prior studies indicated that this sub-area is reaching its sustainable supply of water. Generally, the granite shelf limits storage capacity because water can collect only in granite cracks and fissures rather than in the more porous alluvial sand and gravel found in other sub-areas. Storage is further limited by the flow of subsurface groundwater down grade into adjacent sub-areas. The most recent study indicated that the Granite Ridge sub-area has a sustainable yield of 610 acre-feet per year, current demand of 1,310 acre-feet, and an overdraft of 700 acre-feet.

The Initial Study

The Chapins and their engineering consultants met with staff from the Monterey County Planning and Building Inspection Department (Planning Department) for several months before formally filing their application to address potential water issues. They then submitted technical studies about hydrological impacts, along with their application, which was deemed complete in August 1999. Thereafter, the Chapins submitted additional hydrological test results and analyses.

In April 2000, the Planning Department prepared a preliminary draft of the initial study for the Project. In May 2000, after receiving additional data about the well source of water for the Project, the Monterey County Department of Health (Department of Health) found that there was adequate quantity and quality of water for the Project.

In June 2000, the Planning Department revised the preliminary draft. It stated that the Project would obtain water service by connecting to a well that was part of the Hidden Canyon Ranch Mutual Water System on the adjoining property. The revised draft also noted that the Department of Health had determined that the system will have adequate quantity and quality to satisfy regulatory requirements.

The revised draft calculated that the Project would generate an additional net groundwater demand of 10.2 acre-feet per year, which, if not mitigated, would contribute to the overdraft and pose potentially significant individual and cumulative adverse hydrological impacts. However, the revised draft stated that the Project was designed to channel storm runoff through drains into large detention ponds that would augment existing on-site wetland habitat and prevent any increase in the peak flow discharge off-site. Moreover, the ponds would drain through underground percolation pits and recharge the local aquifer, offsetting the projected net overdraft. The percolation/recharge figures were based on testing and technical reports provided by LandSet Engineers, Inc. (LandSet). The revised draft further stated that the Project was subject to an ordinance requiring payment of a water impact fee, which would provide additional mitigation.[6] The revised draft recommended that an MND be prepared, rather than an EIR.

The revised draft generated many responses and criticisms, further meetings, and additional technical studies and reports that focused on numerous issues, including net water demand and the projected recharge rate from the detention ponds.

On July 17, 2000, Jerry LeMoine, an Environmental Health Specialist at the Department of Health, wrote to LandSet and challenged the technical information it had provided. LeMoine noted that the percolation calculations were based on an average of the tests conducted throughout the site. However, he pointed out that no test was conducted within 300 feet of a proposed detention pond. He further opined that the tests may not represent what may be taking place below the detention ponds because the tests were conducted at relatively shallow depths in permeable soil, and the fast percolation rates may simply reflect water flowing downslope over underlying cemented sand or duropan. LeMoine opined that it was advisable to prepare project specific hydrogeologic report . . . .

In January 2001, LandSet conducted new percolation tests at the sites where the three proposed detention ponds were to be located. In February 2001, Geoconsultants, Inc. (Geoconsultants) prepared a Comprehensive Groundwater Assessment Report (CGA Report), which incorporated the results of LandSets additional percolation tests.

The CGA Report explained that the location of the Project in the southwest portion of the sub-area and the relatively great depth to the granite there make the hydrogeologic conditions more similar to those in the adjacent Highlands South sub-area to the west than to those in the northern part of the Granite Ridge sub-area. The primary aquifer unit underlying the site and vicinity is the Aromas Sand, which consists of weakly cemented brown and red sand and silty sand with local fine gravel. Well logs and other related information in the area suggest that the Aromas Sand is about 300 to 500 feet thick, overlying clay and sand and the older Purisima Formation, which in turn overlie buried granitic basement rocks of the southwest flank of the granite ridge.

In discussing water infiltration and percolation, the CGA Report stated that [i]n the latest study, which was completed from January 17 through 20, 2001, exploratory borings and percolation tests were taken in the three proposed detention/recharge ponds . . . . Based on the percolation tests . . . an average percolation rate of 1 to 2 inches per hour was determined for pond areas 1 and 3, which are located over silty and clayey sand in the shallow subsurface. Extremely rapid percolation rates of 9 to 18 inches per hour were noted for materials in pond area 2, which is located over a clean poorly graded sand in the shallow subsurface.

In discussing water supply, the CGA Report noted that a well drilled on the site in 1991 produced 37 gallons per minute during an eight-hour test period, with the water level dropping from 226 feet to 237 feet after 90 minutes, where it remained for the rest of the test period. Within 15 minutes after the test, water returned to the initial level. A second well in the adjacent Hidden Canyon Ranch was drilled in 1996. It yielded 53 gallons per minute for a 10-hour test period, with the water level dropping from 303 to 313 feet after 60 minutes, where it remained during the rest of the test period.

The CGA Report concluded there is more than enough water available from the on-site well alone to meet the Projects needs at buildout. It further concluded that with mitigation from retention/recharge ponds, the Project would not contribute, and may improve, overdraft problems in the sub-area. Accordingly, the CGA Report recommended that the Project incorporate the three ponds to be located in the sites major drainage areas and designed to contain an estimated two to four acre-feet of water.

On March 17, 2001, LeMoine wrote to the Planning Department. He acknowledged that he was not technically qualified to review the CGA Report but nevertheless called it a hoax that any astute 8th grader could see through . . . .

On March 21, 2001, LeMoine expanded on his view in an e-mail to Steven Maki of the Planning Department, who was in charge of the Project. He asserted that the conclusions in the CGA Report were not supported by the data from LandSet. In particular, LeMoine opined that net demand from the Project may be closer to 15 than 10.2 acre-feet per year. He thought the new detention pond tests were too shallow and speculated that the faster percolation rates may simply reflect water draining down the side wall of the test hole. He also opined that water encountered in a deeper test hole suggested that there was a poor recharge rate in the area. LeMoine admitted that he was not a licensed engineer or hydrologist but said his views were based on 20 years of field experience with the Department of Environmental Health. He opposed a negative declaration.

On March 27, 2001, LeMoine wrote to Maki again. He reiterated his opinion concerning the data provided by LandSet. However, he stated that the bottom line is that I am not technically qualified to evaluate that report any deeper than I did and some on either side of the project may question even that, whether I was in agreement with the report or disagreement with it. There is no point in me going any further with it. However, he thought that a focused EIR for water may be prudent and appropriate.

Later on April 26, 2001, LeMoine informed Maki that his department had declined to comment on proof of a long term water supply and balance for the Project. He referred Maki to the Water Resources Agency for official evaluation of the CGA Report. LeMoine further advised Maki that my previous response to you . . . is unofficial and probably should not be included as part of the file.

On May 17, 2001, Geoconsultants produced an additional report in response to LeMoines comments and criticisms. The new report confirmed the calculations and reiterated the previous information about net water demand, percolation rates, and the feasibility of recharge through detention ponds. The new report again concluded that the recharge system would mitigate the Projects net water use to the point where the impact, if any, on the groundwater resources in the sub-area will be less than significant. Moreover, during wet years, the mitigation system may return more water than is used, resulting in a net positive contribution to and beneficial impact on the water supply.

Geoconsultants later met with the Water Resources Agency to review the percolation/recharge data and reconfirmed the test results and analyses, which were based on the location of the Project in a transitional area between Granite Ridge and Highlands South, the lack of granitic basement at the existing well depth of 620 feet, and the percolation and recharge figures provided by LandSet.

Given all of this material and information, Maki and the planning staff revised the draft. In October 2001, Maki formally submitted and circulated the initial study. It reiterated all of the information in the June 2000 revised draft, including the source of water supply, the adequacy of the supply, and the channeling and storage of storm runoff into existing wetland habitat and detention/recharge ponds. The initial study also reiterated that the Project would generate 10.2 acre-feet of additional demand that, without mitigation, could exacerbate the overdraft problems in North Monterey County and the Granite Ridge sub-area and cause significant impacts to groundwater supplies and recharge capacity. However, unlike the June 2000 draft, the formal initial study stated that in light of the technical studies and tests, the additional demand of 10.2 acre-feet would be offset by domestic water returns to the ground of 11.2 af/yr and a proposal to recharge groundwater by percolation pits in the bottom of retention and detention ponds. Quoting the CGA Report, the Initial Study stated that  calculations by [LandSet] indicate that the predevelopment runoff, using an average of 18 inches of rainfall (Rantz, 1971) would be 57.5 af/hr. With development, and the addition of impervious surfaces, runoff is estimated to be 69.0-57.5 that if percolated in the detention/recharge facilities would offset (or even make a slight positive contribution) the net project water demand of 11.2 af/yr (Reference 30). The initial study noted, however, that the County had not verified/certified the amount of recharge reported in the consultants findings by conducting independent tests. The initial study further stated that the payment of the requisite water impact fee would also help mitigate potentially significant impacts. In this regard, the initial study pointed out that the impact fees had helped fund the CWRM Plan, which was due to be completed in 2002.[7] The initial study recommended that approval of the Project with an MND, which was prepared and filed October 10, 2001.

During the next several months, the initial study and MND generated additional responses.[8]

In December 2003, the initial study was again revised and recirculated. The analysis and discussion of hydrological impacts remained the same. The revised initial study again concluded that with mitigation, the Project would not have significant adverse environmental impacts, and it recommended an MND.

Administrative and Judicial Hearings

On January 29, 2004, the Monterey County Standard Subdivision Committee held a hearing on the Project and agreed with the initial study that with mitigation, the Project would have no significant adverse impacts on the environment. Accordingly, it recommended that the Planning Commission adopt the revised initial study and the MND.[9]

On February 25, 2004, the Monterey County Planning Commission (Planning Commission) held a hearing. Before the hearing, it received letters and email in opposition to the Project, including letters from Landwatch and a neighboring property owner named Doug Kasunich.

In its letter, Landwatch argued that the Project required an EIR, noting that an EIR was being prepared for a similar project in North Monterey County. Landwatch claimed that an EIR was necessary because the net water demand from the Project could have an adverse environmental impact. Landwatch also claimed the Project is inconsistent with the Monterey County policy of requiring proof of a sustainable water supplyi.e., that it does not generate an additional demand for water than cannot be assuredbecause the Project will contribute 10.2 acre-feet to the North Monterey County overdraft. Landwatch opined that  runoff calculations contained in the staff report . . .  do not obviate the problem. Last, Landwatch claimed that the Project is inconsistent with the Monterey County General Plan.

Kasunich, who has lived in the area since 1981, owns an environmental drilling, testing, and sampling company and also operates a water well maintenance and repair service. In his letter, he stated that homes at the end of Pesante Road, which borders the Project, have always had problems with water quantity and quality. He noted that nearby wells on Wild Pony Way, the east end of Pesante Road, and Crazy Horse Canyon are contaminated with bacteria and arsenic.

He stated that the 80-foot well on his property used to produce 45 gallons of water per minute but currently yields only two gallons and constantly sucks dry. The adjoining 180-foot well cannot produce enough water to keep a pump in it. One house in the area is on its fourth well, and every 10 years the owner has to dig deeper because of the declining water table. He observed that a subdivision near King Road has two large passive recharge ponds, but the well for the subdivision no longer produces sufficient water on site. A large subdivision near Coker Road has a pond that captured runoff from pavement. A rain gauge near the pond showed only one inch of rain during the previous months of October and November, which filled the pond to its maximum depth of 15 inches. However, the water stood there for two months without percolation. As a result, the rain that came in December flowed down Pesante Creek.

Kasunich noted that the agricultural use closest to the Project is having problems with nitrates in the deep aquifer. A 500-foot well on Holly Hills Road had no nitrate problem when drilled in 1978, but now showed significant nitrate intrusion from nearby septic systems.

Kasunich explained that his observations are based on 20 years of local work in ground water and related environmental fields and are intended to counter the optimistic information your panel generally receives from a [Projects] consultants. He opined that many projects had been approved after the applicant made similar water balance claims but none has ever been asked to demonstrate that the mitigation measures proposed actually work. Rather, in his experience, recharge ponds may not percolate and prevent deep wells from losing productive capacity. He opined that the claims of passive groundwater recharge systems are unrealistic. He notes that even though the area receives around 18 inches of rain, Pesante Creek often runs for as long as three months, indicating that the ground is saturated. Yet, the 180-foot well at Holly Hills Road remains almost dry. According to Kasunich, this reveals that the Aromas Sand formation at depth has low transmission rates so it could take hundreds of years to see surface recharge reach deeper aquifers.

Another speaker at the hearing was Ms. Lawrence, who represented the Health Department. She stated that there was sufficient water from the system to sustain the Project and noted that there had not been a drop in the well production since the pump tests were performed. Lawrence also noted that although the Project is within the Granite Ridge sub-area, the demarcation between sub-areas gets fuzzy the farther south one goes. At the same time, the granite shelf, characteristic of the Granite Ridge sub-area, comes down and drops off the farther south one goes, and therefore, the geology underneath different locations within a sub-area can be different. Thus, [a]s you go further north in that sub-area, we see and have had pronounced problems with production capacity in wells and having wells go dry, but thats a lot further north into the Granite Ridge sub-area, more up along Crazy Horse and 101. Given the geology of the wells and their construction, the Project site area is closer to what is consistent with the Salinas Valley area because Im not seeing, based on production of the wells and also looking at the well logs themselves, what the wells are developed in, Im not seeing that its consistent with what we see further north in the Granite Ridge sub-area.

After the hearing, the Planning Commission approved the Project with an MND, subject to all of the conditions recommended in the revised initial study. A notice of determination was filed on February 27, 2004.

On March 19, 2004, Landwatch appealed the decision to the Board. On May 4, 2004, the Board held a public hearing. The Board had before it the voluminous administrative record, a detailed critique by Landwatch of the findings by the Planning Commission, the Chapins response to the critique, planning staffs response, and Landwatchs reply. The Board also heard from several speakers, including proponents and opponents of the Project, who reiterated much of the same information and offered the same views and opinions presented to the Planning Commission.

In particular, the Board questioned the head of the Water Resources Agency, Curtis Weeks, concerning whether there was adequate water for the Project. He said that there was. He also stated that the Project is located in the alluvial fan coming out of the Gavilan Mountain Range. Lawrence also reiterated her previous statements to the Planning Commission that the wells serving the Project are not typical hard granite wells found in the northern part of the sub-area; rather, the wells penetrate through more clay and sand, which is typical of alluvial soil.

The Board questioned Lawrence about the water impact fee as mitigation. She noted that it is a standard condition for mitigation. She explained that the water impact fees had been earmarked and used for studies. However, after the studies were completed, the fees were being applied to implement the Salinas Valley Water Project (SVWP), which is a project of the Water Resources Agency involving various infrastructure improvements designed to halt the intrusion of seawater into the Salinas groundwater basin, promote additional recharge to the basin, and thereby protect and increase the long-term groundwater supply.

At the close of the hearing, the Board voted in favor of the Project and adopted Resolution No. 04-151, denying the appeal of Landwatch and approving the Project with an MND subject to the conditions and mitigation measures outlined and recommended by the Planning Commission. Among other things, the Board determined that the Project conforms with the plans, policies, requirements and standards of the Monterey County Subdivision Ordinance (Title 19), the General Plan, North County Area Plan, and Monterey County Zoning Ordinance (Title 21).

Landwatch challenged the Boards decision by filing a petition for a writ of mandate below. The trial court found no substantial evidence to support fair argument that the Project would pose adverse environmental impacts and denied the petition. Landwatch now appeals from the judgment.

Adoption of a Mitigated Negative Declaration

Landwatch contends that because North Monterey County has an indeniable water crisis, the Project obviously and necessarily will have significant adverse environmental impacts on the water supply. Therefore, approving the Project with an MND instead of an EIR violates CEQA.

Applicable Principles

Generally, an EIR must be prepared whenever there is substantial evidence, in light of the whole record before the lead agency, that a nonexempt project may have a significant effect on the environment, that is, a substantial, or potentially substantial, adverse change in the environment. ( 21068, 21082.2; Guidelines, 15382; see  21082.2, subd. (a).) However, CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment. (San BernardinoValley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 389-390, citing Guidelines, 15070, subd (a); see also 21064, 21080, subd. (c).)

Under CEQA, the lead agencyi.e., the public authority principally responsible for approving a projectprepares a preliminary environmental analysis of the proposed project called an initial study. ( 21067; Guidelines, 15063, subd. (a), 15365, 15367.) The initial study provides the lead agency with information to use as the basis for deciding whether to prepare an EIR or negative declaration; it permits an applicant or lead agency to modify a project, mitigating adverse impacts before an EIR is prepared, thereby enabling the project to qualify for a negative declaration; and it provides documentation of the factual basis for the finding in a negative declaration that a project will not have a significant effect on the environment . . . . (Guidelines, 15063, subd. (c)(1), (c)(2), (c)(5).) Thus, one of the purposes of an initial study is to avoid the preparation of unnecessary EIRs. (Guidelines, 15063, subd. (c)(6); Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App.4th 1095, 1101 (Architectural Heritage).)

In certain situations where a straightforward negative declaration is not appropriate, the lead agency may permit use of an MND. ( 21064.5.) If the initial study identifies potentially significant effects on the environment but revisions in the project plans would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur and there is no substantial evidence that the project as revised may have a significant effect on the environment, a mitigated negative declaration may be used. (San Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra, 71 Cal.App.4th at p. 390; see Guidelines, 15064, subd. (f)(2).)

On appeal, Landwatch bears the burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impacts. [Citations.] (League for Protection of Oakland's etc. Historic Resources v. City of Oakland, supra, 52 Cal.App.4th at p. 904; see Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123; Architectural Heritage, supra, 122 Cal.App.4th at p. 1109; Guidelines, 15064, subd. (f)(1).) We determine whether a fair argument can be made by examining the entire record. (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1348.)

Whether there is substantial evidence to support fair argument is a question of law. (League for Protection of Oaklands etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 905.) In the CEQA context, substantial evidence is enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. (Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at p. 1348.) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. ( 21082.2, subd. (c); Guidelines, 15384, subd. (b).)

Adverse Impact on the Groundwater Supply

Landwatch claims there is substantial evidence to support fair argument that the Project may adversely impact the groundwater supply.

In support of this claim, it cites undisputed evidence of an overdraft in North Monterey County, including the Granite Ridge sub-area. It cites an October 2000 memorandum from the Director of Environmental Health to the Planning Commission, which notes that under County policy, new development that generates water demand in excess of the safe yield should be phased in and allowed only when additional water supplies are secured. The memorandum then generally states that it is the position of the Environmental Health Department that it is not possible to support a finding of a long-term water supply for development in an area of significant, chronic overdraft. Further it is not prudent to place additional citizens at risk by allowing residential development in an overdraft area even when the development demonstrates water savings over previous use.

Landwatch next cites a July 2000 advisory memorandum from the Monterey County Environmental Resources Policy Division to Planning Department. It directed staff to advise all subdivision applicants in North Monterey County that a focused EIR might be required for a project due to potentially significant cumulative impacts to water quantity and quality in that area and a subdivision project may be denied because of these conditions. (Underscoring in original.) The memorandum explained that current demand will exceed the average recharge by 100 percent. Also nitrate contamination levels are also increasing. For these reasons, the memorandum concluded, ANY subdivision in this area, which would intensify water use, has the potential to result in a significant cumulative, as well as a project specific, impact to water quality and quantity. Accordingly, any initial study for a subdivision in the area must state that the project will result in a significant cumulative effect on water quality and supply.

To guide staff, the memorandum attached purported excerpts from the initial study prepared for the Project. One excerpt states, The applicant proposes to recharge groundwater by percolation pits in the bottom of retention and detention ponds . . . , but this will not reduce cumulative impacts to a level of insignificance. (Italics added.)[10]

Landwatch also cites LeMoines March 27, 2001 e-mail to Maki, in which he reiterated his views concerning the data from LandSet and opined that it may be appropriate and prudent to recommend a focused EIR for water concerning the Project. (Italics added.)

The broad, generalized evidence cited by Landwatch reflects the existence of a general overdraft, concern about it, and the need to scrutinize future projects. Viewed in isolation, the evidence suggests that in the absence of additional water supplies, any new development, including the Project, may contribute to the overdraft, and therefore a focused EIR on water should be prepared. However, in determining whether substantial evidence supports fair argument, [t]he court does not look only to the evidence relied upon by appellants to the exclusion of all contrary evidence. Evidence that rebuts, contradicts or diminishes the reliability or credibility of appellants evidence is properly considered. The absence of supporting evidence is properly considered. [] Because our focus is on the fair argument [issue], we must assess both the evidence in favor of the significant environmental impact and the evidence to the contraryonly then can we properly decide if the agencys conclusion regarding the fair argument question is supported by substantial evidence in light of the whole record. [Citation.] [Citations.]. (Citizens Committee To Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1168.)

None of the pieces of evidence cited by Landwatch, except the e-mail from LeMoine, discusses the technical information, including well and percolation tests, concerning the adequacy of the water source for the Project and the projected performance of the detention/recharge mitigation system. Indeed, the two memoranda were written before Geoconsultants prepared the CGA Report. The advisory memorandum states only that EIRs may be required. And although the purported excerpt attached to the memorandum may reflect position of the planning staff in April 2000, concerning the adequacy of recharge through detention ponds, that position was changed in the June 2000 revised draft, which was based on drilling logs and expert specific technical studies and an analysis of recharge rates on the site provided by LandSet and Geoconsultants.

LeMoines e-mail is also of little probative value. Although he challenged LandSets data, he also candidly admitted that he is not a licensed hydrologist or hydrogeologist. Moreover, the record does not reveal his specific qualifications as specialist at the Department of Environmental Health. Furthermore, LeMoine conceded that he was not qualified to evaluate the CGA Report and informed Maki that his views were unofficial and should not be included in the record. Accordingly, his personal views on technical matters beyond his expertise are speculative and not expert opinion based on facts. (See Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1422.)

Viewed together with the specific hydrological and hydrogeological analyses of the Project site and the mitigation system, we do not find that the broad and general statements in memoranda and LeMoines e-mail constitute substantial evidence that the technical data and analyses about the adequacy of detention/recharge mitigation system may be wrong; or that even with the mitigation system, Project may still pose a significant adverse impact on the groundwater supply.

Adequacy of Water Supply

Landwatch claims there is substantial evidence to support fair argument that the Project does not have an adequate long term water supply. In support of this claim, Landwatch cites undisputed evidence that currently there is a 700 acre-feet overdraft in the Granite Ridge sub-area and the previous moratorium on development. Landwatch notes evidence that the Project will contribute 10.2 acre-fee to the overdraft and cites LeMoines March 21, 2001 e-mail, in which he thought that demand could be closer to 15 acre-feet. Landwatch again cites the excerpt attached to advisory memorandum, stating that the proposed recharge system will not reduce cumulative impacts to a level of insignificance.

Again, this evidence must be viewed in light of the whole record. The initial study acknowledges a current annual overdraft of 700 acre-feet in the sub-area. However, the record reflects substantial evidence that the Project is located in the southern part of the sub-area. Moreover, drilling logs for the wells that will supply the Project and testimony before the Planning Commission and Board established that the Project is situated over more alluvial soil, sand, and clay than a thick layer of impermeable granite shelf. Furthermore, unlike the hard-rock, low-yield wells in the northern part of the sub-area, pump tests on the Projects wells revealed much higher yields, stabilized water levels during pump tests, and relatively fast water-level recovery after the testing. Given the particular location of the Project and pump tests, the CGA Report opined that there was sufficient water for the Project. Both the Department of Environmental Health and the Water Resources Agency agreed with that conclusion. Last, the technical testing, calculations, and analysis established that recharge from the system of detention ponds would offset the net 10.2 acre-fee of demand.

In our view, general evidence of a sub-area wide overdraft and the prior County-wide moratorium have no tendency to discredit the specific technical analyses and conclusions reached by qualified experts in site-specific studies or the testimony that there is an adequate water supply for the Project. Nor does that general evidence cited by Landwatch reflect an alternative analyses upon which one could reasonably conclude that the existing water supply is inadequate. Finally, for the reasons discussed above, LeMoines e-mail and the advisory memorandum have little probative value concerning whether the Project has an adequate supply of groundwater. In short, the material cited by Landwatch does not constitute substantial evidence that there may not be an adequate water supply for the Project.

TO BE CONTINUED AS PART II.

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[1] All further statutory references are to the Public Resources Code unless otherwise specified.

Although CEQA is part of Public Resources Code, the California Code of Regulations, title 14, section 15000 et seq. sets forth administrative guidelines (Guidelines) for implementing CEQA. All references to the Guidelines are to title 14 of the California Code of Regulations.

[2] In the administrative and judicial proceedings below, Landwatch claimed the Project may cause potentially adverse environmental impacts to water supply, aesthetics, biological resources, hazards and hazardous materials, utilities, air quality, and traffic. However, on appeal, Landwatch focuses only on the potential impact to the groundwater supply. Accordingly, our summary of the evidence and discussion also focus on that issue.

[3] Because the application was filed in 1999, it was exempt from a moratorium on new development adopted by the Board in September 2000. (Monterey County Ordinance No. 4038.) The moratorium was intended to permit the Monterey County Water Resources Agency to complete the Comprehensive Water Resources Management Plan for North County (the CWRM Plan) and consider possible amendments to various land use regulations.

[4] Overdraft is [a] condition in which the amount of water withdrawn is greater than the amount of recharge. Recharge is [t]he addition of water to the zone of saturation; also, the amount of water added.

[5] According to the CWRM Plan, 85 percent of the existing overdraft occurs in the Pajaro sub-areas of Springfield Terrace (46%), Pajaro (22%) and Highlands North (17%). The remaining 15 percent occurs in the Salinas sub-areas of Highlands South (10%) and Granite Ridge (5%).

[6] Monterey County Ordinance No. 3496, as amended by Ordinance No. 4005, of the County of Monterey, added Chapter 18.51 to the Monterey County Code. It established a Water Impact Fee of $1,000 per parcel of new subdivision development in North Monterey County. The fee was intended to assist in financing the study and management plans relating to the safe yield of the North Monterey County aquifers, including preparation of the CWRM Plan. The fee requirement applies only to new developments for which applications filed before January 1, 2001.

[7] The CWRM Plan was completed and issued in January 2002.

[8] In February 2002, the Board extended the north county development moratorium for an additional six months. As noted, however, the Project was exempt.

[9] The Standard Subdivision Commission includes representatives from the Monterey County Department of Planning and Building Inspection, the Department of Public Works, the Parks Department, the Department of Environmental Health, the Water Resources Agency, and the Fire District.

[10] The excerpt is not a quotation from the June 2000 revised draft of the initial study. Nor is it an a quote from the previous April 2000 draft. However, it mirrors the statement in the April that draft that [t]he proposal to recharge groundwater by injection does not demonstrate that [net 10.2 acre-feet] would be replaced . . . .