Water study for Diablo Grande still stands

John Holland, Modesto Bee, California, 12 May 2001

A state appellate court has rejected most of the legal challenges to the water supply for the Diablo Grande project.

The Fifth District Court of Appeal in Fresno said the environmental effects of providing the water generally got the study required by law.

The court did agree with project critics on one point - that an engineer's analysis of a possible water source was submitted too late for the public to consider.

An attorney for the resort and residential project, pegged for hilly terrain eight miles southwest of Patterson, said plans are still on track to start building the hotel this summer and the first homes next spring.

One of the critics, Steve Burke of Modesto, contends that the project still cannot move forward. Burke's group, Protect Our Water, and the California Farm Bureau Federation had filed lawsuits in 1998 claiming that the environmental study had several flaws.

A judge in Stanislaus County Superior Court sided with them in 1999, but the appellate judges ruled 3-0 that most of the claims lacked merit.

"What is significant for us is that the court of appeal agreed with us on all but one point of appeal," said attorney Russ Newman of Modesto, who represents the project.

Diablo Grande now has a pair of golf courses and a small winery. The entire 29,500-acre project, which could take 25 years to build, calls for a total of 5,000 houses, six golf courses, a larger winery, the hotel, a spa, restaurants, stores, a town center and extensive open space.

The appellate ruling reversed the lower court's opinion that the environmental study did not cover the cumulative impact of all the possible water sources. These include the chosen source - California Aqueduct water bought from a Kern County agency - as well as pumping of groundwater and reclamation of wastewater from Patterson.

"The county placed its cards on the table, so to speak," the appellate ruling said. "It explained the water sources from which (the developer) was considering obtaining its water."

The appellate court also rejected the claim that the environmental report was vague about the effects of tapping groundwater that has risen close to the surface of farmland near the San Joaquin River.

The court did say the public was denied its full right to comment on the project because of the late submission of an engineer's analysis claiming that pumping this water would not add to the strain on the overall supply in the San Joaquin Valley.

The ruling said the part of the environmental report at issue should be recirculated for public comment. Newman said this is "a narrow technical point" that will not affect the plan to use water from the aqueduct.

Burke, however, said the flaw in the environmental report is enough to hold up the project.

"They said yes, this information is substantial enough that it requires recirculation of the (report)," he said.

The same appellate court had ruled in 1996, three years after Stanislaus County supervisors approved the project, that the water issues had not been studied enough. The proponents did further work and this time satisfied the court on most points.