Water - low Brite Lake 0921 TCCWD.jpg

This photo, included as part of the Sept. 15 board meeting agenda for the Tehachapi-Cummings County Water District, shows the low water level of Jacobsen Reservoir (Brite Lake) where imported water is stored. As of Sept. 8, the district reported its reservoir volume as 575.8 acre-feet; the capacity is 1,865 acre-feet with 400 acre-feet needed to meet fire flow demands.

Challenging the city of Tehachapi’s Sept. 7 approval of the Sage Ranch project, the Tehachapi-Cummings County Water District has filed a petition in Kern County Superior Court, claiming that the city violated multiple state laws in its approval of the planned development.

“The District’s accusations are both unfortunate and unfounded,” a spokesperson for the city said Monday. “Due to pending litigation, we have no comment at this time.”

The water district has asked the court to set aside the city’s approval of the 995-unit residential subdivision near Tehachapi High School — and possibly some other subdivisions totaling an additional 450 units dating back as far as 2006.

Many of the issues raised in the 42-page petition are similar to those raised by the district in communication with the city prior to the project’s approval — which city staff did address prior to the City Council’s votes to certify the Final Environmental Impact Report and approve the Sage Ranch Planned Development and subdivision of the 138-acre parcel.

Tom Neisler, general manager of TCCWD, said Sept. 22 that he had no estimate of how long it might take for the matter to be resolved.

The court filing is a “Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief,” citing the California Environmental Quality Act, Public Resources Code and Code of Civil Procedures.

“This process is different from a normal civil trial,” Neisler said in an email. “Once the judge is assigned, the first step will be to prepare the administrative record of the case. That could happen quickly or take considerable time depending on how responsive each of the parties are in providing information.”

According to court information available online on Sept. 27, the case has been assigned to Judge Kenneth C. Twissellman II.

In addition to the city of Tehachapi, the petition lists Does 1 through 20 as respondents and identifies Jeffrey Ciachurski, Does 21 through 40, and three companies associated with the Sage Ranch development as “Real Parties in Interest.”

Drought

The district contends that it “has a legal duty and public trust responsibility to ensure that the water resources within its jurisdiction are allocated in accordance with state law and local policy.”

Founded in 1965, the TCCWD is the watermaster for the area’s water basins and also manages the importation of water from the State Water Project. Allocations of water have been severely curtailed by the current drought.

“Particularly since California's communities are suffering from the devastating effects of a historic drought, it is imperative that California's public agencies act responsibly to ensure that their actions address environmental consequences and protect water resources,” the petition states.

Allegations

The water district alleges that the city didn’t follow some requirements of CEQA and violated sections of the state’s Water Code and Government Code. And further, according to the petition, the district “desires a judicial determination and declaration that the city has engaged in a pattern and practice of approving projects without proper analysis of the resulting cumulative impacts, in violation of CEQA.”

According to the water district, “the city’s pattern and practice of ignoring the incremental water supply impacts of individual land use and development projects in the cumulative context has created a situation where the district is unable to serve the needs of existing water users.”

Those users include the water district’s other Municipal and Industrial water customers, as well as agriculture. In addition to the city, M&I customers include Stallion Springs, Golden Hills and Bear Valley community services districts.

“The EIR failed to analyze the significant adverse consequences of supplying the City with water while substantially reducing water deliveries to the District’s other customers. For example, alternative water supplies for agriculture use are limited, and the need for new supplies is likely to exceed available alternatives. As a result, fallowing and potential permanent loss of agricultural resources would add to the significant adverse environmental impacts of the Sage Ranch project, including cumulative impacts that will occur over time,” the petition states.

Citing sections of the state Government Code and case law, the water district contends that to approve a subdivision the size of Sage Ranch, the city is required by SB221 (passed in 2001) to provide written verification that adequate water supplies will be available to meet the project’s demand.

Sufficient water supply, per the district’s filing, means the total water supplies available during normal, single-dry and multiple-dry years within a 20-year projection must be sufficient for both the proposed subdivision and existing and planned future uses, including agricultural and industrial.

Water supply assessment

Because the Sage Ranch project site is included in the area covered by the city’s 2015 Regional Urban Water Management Plan, the city determined that the adequacy of the water supply for the project would be based upon this adopted plan.

In the RUWMP, the city stated that it relies on groundwater pumping from the adjudicated Tehachapi Basin to serve its customers, using an allocation of 1,897 acre-feet per year in addition to “right to recovery of previously recharged SWP supplies purchased from the TCCWD in its Banked Water Reserve Account.”

In evaluating the Sage Ranch project, ultimately the city determined that additional water rights would be needed and approval was conditioned on the applicant providing 175 acre-feet of “pumpable water rights” per year.

The city estimated that the safe yield of the Tehachapi Basin (5,500 AFY) and water quality will remain at current conditions for the next 20 years and beyond.

“With average SWP deliveries at 60% long term, the City anticipates that sufficient supplies will be reasonably available for purchase from the TCCWD and will have been previously recharged for recovery during the average year, single dry year, and multiple dry years scenarios.”

In order to serve current and future customers, the city relies upon its Term M&I agreement with the water district. It is through this agreement that the city purchases SWP water from the district to meet demands in excess of its groundwater allocation and also stores (through groundwater recharge) at least a five-year supply.

The city contends that “the TCCWD has agreed to provide State Water Project water to the City of Tehachapi in perpetuity.” In communication with the city and the court petition, the district makes the point that the agreement is never for more than 10 years into the future.

A review of documents from both sides indicates that the city seems to have believed that the M&I agreement — and its investment in groundwater banking — was to ensure a long-term water supply while the water district contends that the purpose of the 10-year agreement was to ensure it could not be used as a long-term water supply.

‘Sandbagging’

Many of the points raised in the court petition were brought to the city’s attention in a July 28 letter from Pioneer Law Group on behalf of TCCWD.

In a memo to Mayor Phil Smith and members of the City Council on Aug. 16, Development Services Director Jay Schlosser provided a response to address the comments in advance of the council’s eventual vote to certify the Final Environmental Impact Report for the project.

“Staff does not believe that the Pioneer/TCCWD letter undermines or discredits any of the information in the Final EIR and WSA,” Schlosser wrote, continuing that many of the “comments are factually inaccurate or lack foundation for the statements that are made.”

The water district was critical of the scope of the EIR, but Schlosser said those comments were untimely and meritless.

“Here, the Draft EIR was circulated for a comment period from March 4, 2020 through April 17, 2020,” he wrote. “TCCWD was well aware of this comment period as it submitted comments on the Draft EIR. Yet, TCCWD chose not to provide any comments on Project alternatives in that letter, instead waiting until July 28, 2021 to offer those comments. This sandbagging is improper under CEQA and the City is not obligated to respond to these comments.”

Other projects

In its fourth cause of action, the water district contends that the city has a “pattern and practice” of CEQA violations, specifically approving subdivision without fully considering water availability. The projects include, according to the filing, Sage Ranch with 995 units, the Address with 232 units, Tract 6248 with 30 units, Tract 6507 with 96 units, Tract 6668 with 18 units and Tract 6714 with 74 units and added that there are additional projects in the city’s pipeline including the proposed Dennison tract with 80 units and an unnamed 37-unit project under review.

A review of the projects referenced in the filing shows city approvals going back as far as 2006. Although the city approved the subdivisions, there has been little residential construction in Tehachapi over the past 10 years, with some projects disrupted by the economic downturn of 2007-2008.

Case information

Case information can be found online by searching for Case Number BCV-21-102184 at:

Claudia Elliott is a freelance journalist and former editor of the Tehachapi News. She lives in Tehachapi and can be reached by email: claudia@claudiaelliott.net.