Comite Civico del Valle v. County of Imperial

Filed 8/11/26; Certified for Partial Pub. 9/2/26 (order attached) COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA COMITE CIVICO DEL VALLE et al., D085747 Plaintiffs and Appellants, v. (Super. Ct. No. ECU003425) COUNTY OF IMPERIAL et al., Defendants and Respondents; CONTROLLED THERMAL RESOURCES (US), INC., et al., Real Parties in Interest and Respondents. APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed in part, reversed in part, and remanded with instructions. Carstens, Black & Minteer, Douglas P. Carstens, Michelle N. Black, Sunjana Supekar; Law Office of Jordan R. Sisson and Jordan R. Sisson, for Plaintiffs and Appellants.  Geoffrey Holbrook, County Counsel, Andrew E. Briseno, Deputy County Counsel; Remy Moose Manley, Nathan O. George and Chrstina L. Berglund for Defendants and Respondents. Environmental Law Group, Varco & Rosenbaum, Suzanne R. Varco and Grant Olsson for Real Parties in Interest and Respondents. I. INTRODUCTION The Imperial Valley: “Its fruitful soil was caressed by the wasting water of an unregarded river and blossomed in perennial beauty[.]” 1 Water from the Colorado River is the sole source of fresh water for the County of Imperial (County) and in particular, for agriculture in the Imperial Valley. That water supply is not unlimited, and the available water is critical in one way or another to everyone who lives or works in the County. Any project that requires substantial water must be considered with great care to ensure that the County’s residents, businesses, and environment are not adversely affected by its planned water use. This appeal involves the County’s approval of a geothermal power plant, a lithium extraction facility, and related facilities (together, the Project) near the Salton Sea as well as the certification of an environmental impact report (EIR) for the Project under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). 2 Comite Civico del Valle and Earthworks (together, Appellants) filed a petition for writ of 1 Farr, The History of Imperial County California (1918). 2 Further section references are to the Public Resources Code unless noted. 2 mandate against the County and the Project’s developers, Controlled Thermal Resources (US), Inc., Hell’s Kitchen PowerCo 1, LLC, and Hell’s Kitchen LithiumCo 1, LLC (collectively, CTR).3 The superior court entered a judgment denying the petition. On appeal, Appellants challenge the certification and approval of the Project on various grounds. In particular, they argue insufficient evidence supports the County’s conclusion that the Imperial Irrigation District (IID)4 can provide adequate water supplies to the Project for the 50-year lifespan of the Project. They further argue that the EIR contains an inadequate discussion of water supply mitigation measures under CEQA law. They also contend the EIR omits necessary cumulative impacts and air impacts analyses. Finally, they argue that the County failed to engage in timely and meaningful tribal consultation to identify and mitigate impacts on tribal cultural resources. We agree that the administrative record does not contain sufficient evidence to demonstrate that the IID can supply water to the Project for 50 years. We also agree that the EIR failed to adequately discuss mitigation measures targeted at possible future mandated water supply reductions from the Colorado River. Additionally, we conclude that the IID’s concerns about the impact of the Project’s water use on air quality were not speculative and therefore the EIR should have addressed that impact. However, we agree with Respondents that the County’s tribal consultations were adequate. 3 Because the County and CTR filed jointly, we refer to them collectively as Respondents. 4 The IID delivers Colorado River water via canals to numerous cities and hundreds of thousands of acres of agricultural lands in the Imperial Valley. It also operates an extensive lateral drainage system that drains agricultural runoff. This drainage eventually flows into the Salton Sea. 3  II. FACTUAL AND PROCEDURAL BACKGROUND A. The Project The Project is located approximately 3.6 miles west of the town of Niland in Imperial County and is surrounded on three sides by agricultural or vacant land. The Salton Sea is on the Project’s western border. CTR applied for approval to build the Project, which consists of (1) a geothermal power plant that will produce up to 49.9 megawatts of geothermal green energy (Hell’s Kitchen PowerCo 1 or HKP1), (2) mineral extraction and processing facilities (Hell’s Kitchen LithiumCo 1 or HKL1), and (3) facilities for the administration, repair, and shipping needs of the Project. More specifically, the Project will use wells to bring up hot geothermal brine lying beneath the Salton Sea. Steam from the brine will be used to generate geothermal energy at the HKP1 power plant, while the HKL1 plant will extract lithium hydroxide, silica, polymetallic products, and possibly boron compounds from the brine. HKL1 will sell the extracts. The geothermal brine will then be injected back into the geothermal reservoir. The Project will require approximately 6,500 acre-feet per year (AFY) of raw water, supplied by IID, to operate. B. The County’s Review and Approval of the Project Imperial County Planning and Development Services was the lead agency on the Project. The County released a notice of preparation (NOP) of draft EIR (draft EIR or DEIR) in late March 2022. It released the DEIR as well as a draft water supply assessment (WSA), dated June 2023, for public review on September 8, 2023, and accepted public comments until November 30, 2023. Appellants, the California State Lands Commission, and IID, among others, submitted letters raising numerous issues during the public comment period. The County prepared a revised WSA, which was dated 4 November 2023, and issued both a revised DEIR and the final EIR (final EIR or FEIR) in December 2023.5 On December 13, 2023, the County’s Planning Commission held a public hearing and then approved the Project. Appellant Comite Civico del Valle appealed to the County Board of Supervisors. Meanwhile, IID sent an email to the County’s senior planner on December 7, 2023, indicating that an attached WSA (dated December 2023) (final WSA), which incorporated IID’s technical findings, was “acceptable for incorporation into the Final EIR as part of the CEQA process, pending lead agency action for SB 610 compliance.”6 The email went on to state that “[t]hese technical findings are solely related to water supply and do not represent IID’s opinion of FEIR adequacy, particularly as it relates to assessment of potential impacts to IID facilities and/or consistency with any existing contractual requirements.” Unfortunately, although this letter 5 Although the FEIR indicates that it incorporates the revised DEIR, we refer to these documents separately for clarity. We refer to the certified EIR as simply the “EIR.” 6 “SB 610” refers to Senate Bill No. 610, which amended Water Code section 10910 et seq. and focused on “strengthening urban water management plans as well as the connection between water supply assessment and the plans (or the equivalent level of analysis if there is no plan).” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1479–1480 (California Water Impact Network).) “[SB] 610 was motivated by a concern that certain counties and cities were either ignoring or inadequately considering water supply issues prior to approving new developments.” (Id. at p. 1486.) Although “the Legislature wanted to ensure that lead agencies thoroughly considered water supply issues and wanted to add transparency to the entire process, the Legislature committed the final determination on water supply issues to the lead agency, not the water providers.” (Ibid.) 5 predated the planning commission’s public meeting, it appears the planning commission reviewed and approved the November WSA, not this revised December version. Notably, in its response to Appellants’ appeal to the board of supervisors, CTR explained that the final version of the WSA (seemingly referring to the one dated December 2023) included “minor revisions” from the November 2023 one initially included in the FEIR, including “a calculation of the total water demand for the Project to reflect a 30-year water demand.” On January 11, 2024, the County requested that the board of supervisors schedule a public hearing to consider the appeal. It provided to the board the final WSA and the FEIR. At some point thereafter, the County submitted a revised mitigation monitoring and reporting program document with revisions to mitigation measure UTIL-1, which relates to water availability for the Project. The board of supervisors held a hearing on January 23, 2024, denied the appeal, and approved the Project. The County filed a notice of determination on January 24, 2024. C. Writ of Mandate and Trial Court Proceedings Appellants filed a petition for writ of mandate on March 13, 2024, challenging the County’s approval of the Project and certification of the EIR. The superior court heard oral argument and then asked the parties to file supplemental briefs identifying the principal controverted issues. Following the supplemental briefing, the court denied the petition. III. DISCUSSION A. Legal Principles 1. General Overview of CEQA CEQA “and the regulations implementing it (Cal. Code Regs., tit. 14, § 15000 et seq.) embody California’s strong public policy of protecting the environment.” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285– 6 286, quoting Cal. Code Regs., tit. 14, § 15002; hereafter Guidelines.7) “CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity’s potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment.” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382 (Building Industry).) “CEQA was intended to be interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Guidelines, § 15003, subd. (f).) “[I]f the agency finds the project ‘may have a significant effect on the environment,’ it must prepare an EIR before approving the project.” (Building Industry, supra, 62 Cal.4th at p. 382, citing §§ 21100, subd. (a), 21151, subd. (a), 21080, subd. (d), 21082.2, subd. (d).) An EIR “must include a description of the proposed project and its environmental setting and discussions of (1) the possible environmental effects of the project, (2) feasible measures to mitigate any significant, adverse environmental effects of the project, (3) the comparative environmental effects of a range of reasonable alternatives to the proposed project, including a ‘no project’ alternative, and (4) the cumulative impact of the project’s various environmental effects.” (County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, 627 (County of Butte), citing Guidelines, §§ 15124, 15126, 15126.4, 15126.6, 7 We use “Guidelines” to refer to the Guidelines for Implementation of the California Environmental Quality Act (Cal. Code Regs., tit. 14, § 15000 et seq.). 7 15130.) “An EIR may also include a discussion of the economic and social effects of the project.” (Ibid.) “CEQA does not require technical perfection in an EIR, but rather adequacy, completeness, and a good-faith effort at full disclosure.” (Guidelines, § 15003, subd. (i).) 2. Standard of Review in a CEQA Case The appellate court’s review in a CEQA case is the same as the trial court’s review. (Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495.) The court’s inquiry in reviewing an agency’s compliance with CEQA “shall extend only to whether there was a prejudicial abuse of discretion” by the agency. (§ 21168.5.) Such an abuse is established “if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.) “Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency’s substantive factual conclusions.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard).) “In reviewing for substantial evidence, the reviewing court ‘may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ ” (Ibid.) Ultimately, “[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.) 8  B. Adequacy of the Water Supply for the Project 1. Appellants’ Contentions Appellants challenge the EIR’s assertions that the Project will have an adequate supply of water on several grounds. First, they contend the EIR offers conflicting information as to whether the Project’s anticipated lifespan is 30 or 50 years and that it is uninformative to the extent it claims sufficient water will be available for a 50-year lifespan. Respondents object that Appellants did not exhaust this argument by raising it during the County’s administrative process.8 That may be true, in that Appellants did not exhaust the legal argument that 8 Respondents also contend Appellants waived their argument about variations in the Project’s lifespan by failing to raise it at trial. While failure to present an issue to the trial court generally forfeits consideration of that issue on appeal (see Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489), Respondents have not persuaded us this principle applies in a CEQA case. In a CEQA case, “[t]he appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo.” (Vineyard, supra, 40 Cal.4th at p. 427.) Respondents primarily rely on A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773 (ALARM), but in that case, the court determined the appellant was barred from raising a claim for the first time on appeal because it failed to exhaust its administrative remedies. (Id. at p. 1804.) Forfeiture was only cited as an additional reason, and the court did not explain how this principle applied to CEQA review. (Ibid.) The same is true of the other cases cited by Respondent. (See El Morro Community Assn. v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 1341, 1351 [citing without analysis to ALARM]; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912 [no analysis within CEQA context when finding forfeiture based on party’s failure to bring deficiencies or omissions in the tentative decision to the trial court’s attention]; Old East Davis Neighborhood Assn. v. City of Davis (2021) 73 Cal.App.5th 895, 912–913 [citing Porterville].) Accordingly, we decline to find Appellants forfeited this or any other arguments asserted on appeal by failing to raise them before the trial court or to object when the tentative decision did not address an issue. 9 Respondents failed to proceed in a manner required by law by providing misleading and inconsistent project lifespan information. (See Covington v. Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 873 (Covington); § 21177, subds. (a) & (b).) But IID did assert below that Respondents had not provided sufficient evidence of the Project’s water supply impacts. Thus, this argument was exhausted, 9 and the actual Project lifespan remains highly relevant to our review of the sufficiency of the evidence in support of the County’s certification of the EIR. The Project’s lifespan is described inconsistently throughout the record. For example, although the EIR and its supporting documents repeatedly refer to the Project as having a 30-year lifespan and a total water usage based on that duration, they also include references to a 50-year lifespan and assert a different total water usage amount. Table ES-1 of the FEIR, which includes a “[s]ummary of [s]ignificant [i]mpacts and [m]itigation [m]easures,” twice refers to it as a 30-year project; the Findings of Fact mention a 30-year lifespan three times; and the Mitigation Monitoring and Reporting Program document references it once. The final WSA states that it examines the “[e]xpected 30-year water demands of the Project,” and the table projecting total operational water use, which had originally reflected 50 years of operations and total raw water usage of 299,960 AF in the June WSA, was 9 A petitioner has exhausted its administrative remedies if any person presented the alleged grounds for noncompliance with CEQA and the party filing the CEQA action objected to the project’s approval. (Covington, supra, 43 Cal.App.5th at p. 873; § 21177, subds. (a) & (b).) Here, Appellants objected to the Project on many grounds at all administrative levels, and IID specifically addressed the lack of sufficient evidence for the DEIR’s contention that adequate water was available to support the Project’s 50-year lifespan. Furthermore, we conclude IID stated its objections with sufficient specificity to allow the agency to evaluate and respond to them. (See Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535–536.) 10 revised in the final WSA to reflect 30 years of operations and “an estimated total operational water demand [ ]of 6,500 AFY or 195,000 AF amortized over a 30 year term.” None of these final documents indicate the Project proponents expected it to last for 50 years. Further, CTR informed the board of supervisors that the final WSA included “a calculation of the total water demand for the Project to reflect a 30-year water demand.” However, the revised DEIR, which Respondents indicate is part of the certified EIR, muddles the discussion of the Project’s lifespan. Although the section of the FEIR entitled “Draft EIR Revisions” does not reflect that the Project lifespan or anticipated water supply needs had changed, the revised DEIR contains multiple references to both a 30-year Project life and a 50-year lifespan, including once mentioning them on the same page. Given the pervasive references to a 30-year Project lifespan in the FEIR, Findings of Fact, Mitigation Monitoring and Reporting Program documents, and final WSA, we cannot agree with Respondents that the 30- year references were mere “scrivener errors.” (If anything, the references to a 50-year term in the revised DEIR seem to be the more notable outliers.) We need not struggle to reconcile the 20-year difference in timeframes scattered throughout the EIR and its drafts. For purposes of our review, we accept the Respondents’ assertion in their briefing that the Project’s intended lifespan is, in fact, 50 years. Thus, regardless of whether Appellants failed to exhaust their first argument on appeal as to the conflicting statements as to the Project lifespan, our review of Appellants’ other contentions requires us to work from an understanding that the approved lifespan for the Project is set at 50 years. As we explain below, evidence in the record that may have supported a 30-year Project lifespan fails to support the longer timeframe. 11  Appellants next argue insufficient evidence supports the County’s conclusion that IID can provide adequate water supplies to the Project for its 50-year lifespan. They maintain this is particularly so because Colorado River water allocation laws and persistent drought conditions severely constrain water availability. They further contend that the EIR cannot rely on the availability of water designated by the IID for non-agricultural projects, because the designated Interim Water Supply Policy (IWSP) water supply is not readily available and must first be conserved, contracted for, and purchased before any such water would be available.10 As we discuss below, we agree the administrative record does not support a finding that 50 years’ worth of water is available or likely to become available via conservation efforts. 2. Additional Facts California enjoys senior water rights to Colorado River water, and IID has access to 3.1 million AF of Colorado River water per year. Almost all the Colorado River water is allocated to agricultural use in the Imperial Valley. Leading up to this EIR, IID did not have an adopted urban water management plan in place, and so it adopted the IWSP to address proposed projects while it developed its Integrated Water Resources Management Plan. 10 Contrary to Respondents’ assertion, we conclude this argument is exhausted. Once again, although Appellants did not raise this specific issue, IID did, explaining “the IWSP does not dedicate or set aside 25,000 AFY of IID’s annual water supply to serve new projects. Refer to prior comments regarding ability to ‘conserve’ up to 25,000 acre-feet under the IWSP.” IID further clarified that the initial draft WSA did not accurately reflect that a portion of this water supply “ ‘may be contracted for conservation at the discretion of the IID Board.’ ” 12  Although the IWSP allows IID to reserve up to 25,000 AFY of IID’s Colorado River water supply to serve new non-agricultural projects, “[a]s of November 2023, a balance of [only] 18,620 AFY remain[ed] available under the IWSP for new non-agricultural projects.” But to call the remaining balance “available” omits an important point: as discussed below, this supply for non-agricultural projects is not a body of water that merely awaits the IID’s directed allocation; it is a hypothetical supply. The DEIR explained that an April 2023 WSA “evaluate[d] water availability during a normal year, single-dry, and multiple-dry water years for the required 20-year period, plus an additional 30 years for a total of a 50- year water demand for the Project.” It estimated the Project would require 299,960 AF of water in total. The DEIR claimed that “[t]he amount of water available and the stability of the IID water supply along with on-farm and system efficiency conservation and other measures being undertaken by IID and its customers ensure that the Project’s water needs will be met for the next 50 years.” IID rejected such claims in its November 22, 2023 comment letter,11 including as to the current availability of water and as to the assertion that sufficient water would be available for 50 years. It began by stating that “[t]he Water Supply Assessment is incomplete and contains inaccurate data.” It then explained that “[t]he percentage of project demand to ‘IWSP water demand’ is not related to an available ‘unallocated supply’ but rather to an ‘unallocated water supply that may be created and set aside for new non- 11 IID’s letter references “Appendix M” to the DEIR, which contains a WSA from June 2023, but also notes that the DEIR “incorrectly references a WSA dated April 2023.” 13 agricultural projects.’ The project’s water supply needs to be conserved and is not readily available.” (Italics added.) In other words, sufficient water for the Project would have to come from as yet unimplemented conservation efforts. Further, IID admonished that “the analysis must include Best Management Practices that the project incorporates for water conservation and must further address what measures the project plans to take if there is future water supply curtailment of the 6,500 AFY requested.” As to timing, the IID letter explained that “[t]he water supply assessment can’t extend beyond 30 years (through 2053) because the Water Supply Assessment template created by IID and Imperial County does not extend beyond 2055. Therefore, there is no 50-year water supply assessment that can be applied to this project. Additionally, the IWSP does not dedicate or set aside 25,000 AFY of IID’s annual water supply to serve new projects. Refer to prior comments regarding ability to ‘conserve’ up to 25,000 acre-feet under the IWSP.” It then stated that an entire paragraph of the DEIR related to water supply12 “need[ed] to be deleted as the statements are all inaccurate.” Its reasoning was that “[t]he existing and near-term On-Farm Efficiency conservation and System Efficiency conservation undertaken by IID and its customers under the QSA and other near-term agreements do not ensure that the project’s water needs will be met over the next 50 years. Hell’s Kitchen, in coordination with IID, will need to implement a 12 That paragraph stated: “Project construction represents 2.1 percent of the unallocated supply set aside in the IWSP for nonagricultural projects in the Imperial IRWMP through 2055. Project operations represent 28.2 percent of the unallocated supply set aside in the IWSP for nonagricultural projects in the Imperial IRWMP through 2055. The amount of water available and the stability of the IID water supply along with on-farm and system efficiency conservation and other measures being undertaken by IID and its customers ensure that the Project’s water needs will be met for the next 50 years.” 14 conservation program or project to generate the 6,500 AFY of water supply that it will need for its operations.” Respondents have not attempted to describe any efforts towards the implementation of a conservation plan or project. Instead, in response to the IID comments, Respondents made revisions to the FEIR and final WSA. The final WSA concluded that IID’s projected water supply was sufficient to satisfy the Project’s demands “for a 20-year Water Supply Assessment period and for the 30-year proposed Project life.” It reflects a reduced estimated total operational water demand of 195,000 AF. It further stated that, “on- farm efficiency conservation measures . . . combined with the conversion of some agricultural land uses to non-agricultural land uses (both solar and municipal), ensure that IID can continue to meet the water delivery demand of its existing and future agricultural and non-agricultural water users, including this Project for the next 20 years and for the life of the proposed Project under a water supply consistent with the district’s full entitlement.” It acknowledged the Project would be required to mitigate its water demand via conservation programs or projects to receive future water apportionments. And the final WSA acknowledged that CTR would be required to pay a reservation fee and annual water supply development fees to IID to help fund the development of new water conservation, storage, and/or augmentation projects. It also noted that reduced water delivery to IID from the Colorado River was “increasingly likely.” 3. Legal Principles Because the Project includes a processing plant, it is an industrial water use project within the meaning of Water Code section 10912 (Wat. Code, § 10912, subd. (a)(5)). An EIR for an industrial processing plant must include analysis of water supply and infrastructure necessary to develop and deliver water to the project. “If the projected water demand associated with 15 the proposed project was accounted for in the most recently adopted urban water management plan, the public water system may incorporate the requested information from the urban water management plan.” (Wat. Code, §10910, subd. (c)(2).) If not, “the water supply assessment for the project shall include a discussion with regard to whether the public water system’s total projected water supplies available during normal, single dry, and multiple dry water years during a 20-year projection will meet the projected water demand associated with the proposed project, in addition to the public water system’s existing and planned future uses, including agricultural and manufacturing uses.” (Id., § 10910, subd. (c)(3).) Thus, the WSA was required to discuss available water, including availability during dry water years, for a 20-year period. Beyond the Water Code’s demands, CEQA imposes additional requirements. Vineyard, supra, 40 Cal.4th 412 summarizes these principles. “First, CEQA’s informational purposes are not satisfied by an EIR that simply ignores or assumes a solution to the problem of supplying water to a proposed land use project. Decision makers must, under the law, be presented with sufficient facts to ‘evaluate the pros and cons of supplying the amount of water that the [project] will need.’ ” (Id. at pp. 430–431.) Second, the analysis of water sources for a large land use project and the impacts of exploiting those sources cannot be limited to the water supply for the first few years. (Id. at p. 431.) “Third, the future water supplies identified and analyzed must bear a likelihood of actually proving available; speculative sources and unrealistic allocations (‘paper water’) are insufficient bases for decisionmaking under CEQA.” (Id. at p. 432.) “Finally, where, despite a full discussion, it is impossible to confidently determine that anticipated future water sources will be available, CEQA requires some discussion of possible 16 replacement sources or alternatives to use of the anticipated water, and of the environmental consequences of those contingencies.” (Ibid.) “The ultimate question under CEQA, moreover, is not whether an EIR establishes a likely source of water, but whether it adequately addresses the reasonably foreseeable impacts of supplying water to the project.” (Vineyard, supra, 40 Cal.4th at p. 434.) “If the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives— including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.” (Ibid., citing § 21100, subd. (b).) An EIR need not identify a guaranteed source of water to be sufficient, however, because “[i]f an EIR were required to identify a guaranteed source of water, then no EIR would ever be sufficient.” (Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 908–909 (Western Placer Citizens) [concluding the EIR demonstrated sufficient existing and available sources of water for the project].) 4. The Record Contains Insufficient Evidence of Adequate Water Supplies for a 50-Year Project Lifespan When we begin to assess whether sufficient evidence supports the conclusion that the Project’s water supply will be adequate, we see the mischief created by the conflicting lifespan descriptions. As discussed above, many of the references in the final CEQA documents focus on a 30-year Project lifespan; yet Respondents claim that the EIR demonstrates an adequate water supply is available for 50 years. We disagree with this claim. 17  Respondents contend that, “[a]lthough IID’s projections only looked out to 2055, the EIR reasonably concluded that ‘[t]he amount of water available and the stability of the IID water supply along with on-farm and system efficiency conservation and other measures being undertaken by IID and its customers ensure that the Project’s water needs will be met for the next 50 years.’ ” The specific page of the revised DEIR cited for this proposition references both a 50-year and a 30-year lifespan for the Project. More importantly, as discussed above, the statements related to a 50-year term appear to be based on assertions made in the April 2023 WSA which were disapproved on numerous grounds by IID, not the most recent one approved by the board of supervisors in December 2023. The FEIR, final WSA, and Findings of Fact certified by the board of supervisors do not claim a 50-year lifespan or a total water usage of 299,960 AF. And IID’s statements do not indicate its own conservation programs funded by the IWSP can provide 50 years of water to the Project. At most, the final WSA can be read as asserting that IID is confident it can conserve and provide sufficient water to support the Project for 30 years (with a total water usage of 195,000 AF), assuming it receives its full river water entitlement. 13 Although “[t]he lead agency may make a finding that adequate water supplies exist (or do not exist) to meet the project’s anticipated demand, even if that finding is inconsistent with the conclusions in the public water system’s assessment” (California Water Impact Network, supra, 161 Cal.App.4th at p. 1487), such 13 Appellants also argue that Respondents could not rely on this assertion, because IWSP water must be contracted and paid for and Respondents have not done either and, further, cannot presume IID’s approval of the contract. But Appellants do not point to authority for the proposition that Respondents must have already contracted for water for a project that has not yet obtained County approval to demonstrate it complies with CEQA. 18 findings must be based on some credible evidence in the record. We find none here. Thus, the assertion that IID can provide a 50-year water supply lacks evidentiary support in the record. Beyond the availability of water from IID, and particularly given the uncertainties inherent in long-term water supply planning in the Imperial Valley, Respondents could have satisfied their CEQA burden by analyzing water sources other than IID that might be reasonably likely to be able to provide water for an additional 20+ years and by discussing the reasonably foreseeable impacts of using those water sources. (Vineyard, supra, 40 Cal.4th at pp. 431–432, 434.) We acknowledge that the WSA is only designed to address IID’s total projected available water supplies during normal, single dry, and multiple dry water years for a 20-year period. (Wat. Code, § 10910, subd. (c)(3).) The final WSA’s conclusion can be read as indicating the County and IID believed it was reasonably likely IID could provide water for up to 30 years, at least if IID received its full Colorado River entitlement.14 Beyond that period, Respondents have not directed us to anywhere in the EIR where they describe other viable water sources to meet the needs of the remaining Project term. (Vineyard, supra, at p. 432.) For instance, they do not discuss the possibility of purchasing water from some source other than IID, nor do they propose feasible independent conservation or augmentation projects that would help to ensure the availability of sufficient water. And, as we will discuss more thoroughly below, although Respondents offered some alternatives as mitigation measures should the federal government mandate a reduction in IID’s 14 Notably, IID indicates elsewhere in the final WSA that it expects to exhaust the IWSP water within 20 years and that, to meet the water needs of other users, it will require CTR to make water conservation and augmentation commitments. 19 entitlement, they do not assert that these mitigation measures were intended to address the shortfall in reaching a 50-year Project life. Nor did the EIR satisfy CEQA’s requirement of discussing “the environmental consequences of those contingencies.” (Vineyard, at p. 432.) Ultimately, as in Vineyard, the EIR’s discussion of a source of water beyond the initial 20 years addressed in the final WSA “leaves too great a degree of uncertainty regarding the long-term availability of water for this project.” (Vineyard, supra, 40 Cal.4th at p. 439.) As in Vineyard, “[f]actual inconsistencies and lack of clarity in the FEIR leave the reader—and the decision makers—without substantial evidence for concluding that sufficient water is, in fact, likely to be available.” (Ibid.) Accordingly, we conclude the EIR does not satisfy CEQA because the claim that the Project has a sufficient, available source of water for 50 years is not supported by substantial evidence. (See Western Placer Citizens, supra, 144 Cal.App.4th at p. 909 [a water source need not be guaranteed, but the EIR should identify “existing, available, and sufficient sources of water for the project”].) We further conclude this deficiency constitutes a prejudicial abuse of discretion, because in an environment like the Imperial County, with such scarce water resources, it precluded informed decisionmaking and informed public participation, thereby thwarting statutory goals of the EIR process. 5. Analysis of Mitigation Measure UTIL-1 Beyond the insufficient evidence as to availability of water over the lifespan of the Project, as discussed in the previous section, the EIR fails to adequately respond to a very real threat to the IID’s allocation of water to the Project, even in the short term, in the form of possible future cuts to IID’s allotment of water from the Colorado River. In the DEIR’s discussion of that possibility, i.e., the mitigation measure relevant to water supply (UTIL-1), it merely noted, “[i]f the IID does not receive its annual 3.1 maf water 20 apportionment according to the QSA obligations of Colorado River water during the Project’s 30-year lifespan, the Applicant shall work with IID to ensure any reduction in water availability can be managed by the Project.” IID responded in its comment letter that Respondents’ “blanket statement that [they] will work with IID to ensure reductions of water are managed is not an acceptable mitigation. As per the WSA Template approved by Imperial County and IID, the project proponent must identify specific measures of how a pro