Cnty. of Butte v. Dep't of Water Res.

Decision Date05 September 2019
Docket NumberC071785
Citation252 Cal.Rptr.3d 435
CourtCalifornia Court of Appeals Court of Appeals
Parties COUNTY OF BUTTE, Plaintiff and Appellant, v. DEPARTMENT OF WATER RESOURCES, Defendant and Respondent; State Water Contractors, Inc., et al., Real Parties in Interest and Respondents. County of Plumas et al., Plaintiffs and Appellants, v. Department of Water Resources, Defendant and Respondent; State Water Contractors, Inc., et al., Real Parties in Interest and Respondents.

Bruce Alpert, County Counsel; Rossmann and Moore, Antonio Rossmann, San Francisco, Roger B. Moore, and Barton Lounsbury; Law Office of Roger B. Moore and Roger B. Moore; and Shute Mihaly & Weinberger, Ellison Folk, San Francisco, for Plaintiff and Appellant County of Butte.

R. Craig Settlemire, County Counsel; Law Office of Roger B. Moore and Roger B. Moore; and Law Offices of Michael B. Jackson and Michael B. Jackson for Plaintiffs and Appellants Plumas County and Plumas County Flood Control and Water Conservation District.

E. Robert Wright for Friends of the River and the California Sportfishing Protection Alliance as Amici Curiae on behalf of Plaintiffs and Appellants.

Kamala D. Harris and Xavier Becerra, Attorneys General, Robert W. Byrne, Senior Assistant Attorney General, Randy L. Barrow and Tracy L. Winsor, Supervising Deputy Attorneys General, and Deborah L. Barnes and Matthew J. Goldman, Deputy Attorneys General for Defendant and Respondent Department of Water Resources.

The Sohagi Law Group, Margaret M. Sohagi and Philip A. Seymour, Los Angeles; Duane Morris, Thomas M. Berliner, Paul J. Killion, and Jolie-Anne S. Ansley, San Francisco; and Downey Brand, David R.E. Aladjem, Sacramento, for Real Parties in Interest and Respondents Alameda County Flood Control & Water Conservation District, Zone 7, Kern County Water Agency, San Bernardino Valley Municipal Water District, Santa Clara Valley Water District, The Metropolitan Water District of Southern California, and State Water Contractors, Inc.

OPINION ON TRANSFER

BLEASE, J.

The Department of Water Resources (DWR) applied to the Federal Energy Regulatory Commission (FERC or Commission) to extend its federal license to operate Oroville Dam and its facilities as a hydroelectric dam.1 The project subject to relicensing is referred to as the Oroville Facilities Project (sometimes also Project or Settlement Agreement (SA)) by which the affected parties agree to the conditions for the extended license. "The SA includes Appendix A, which incorporates all of the ... measures that the Settling Parties believe to be under FERC's jurisdiction."2 The objective of the Project is the continued operation of the Oroville Facilities for water and power generation and the implementation of conditions for the extended license.

DWR filed a programmatic (informational) Environmental Impact Report (EIR) as the lead agency in support of the application pursuant to the California Environmental Quality Act ( Pub. Resources Code, § 21000 et seq. ; hereinafter CEQA). Plaintiffs challenged the sufficiency of the EIR, the failure to consider the import of climate change, in the state courts and sought to enjoin the issuance of an extended license until their environmental claims were reviewed.3 The trial court denied the petition on grounds the environmental claims were speculative.

In an earlier opinion we held that the authority to review the EIR was preempted by the Federal Power Act ( 16 U.S.C. § 791a et seq. ; hereinafter FPA), that the superior court lacked subject matter jurisdiction of the matter, and ordered that the case be dismissed. Plaintiffs petitioned for review in the Supreme Court, review was granted, and the matter was transferred to us with directions to reconsider the case in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 220 Cal.Rptr.3d 812, 399 P.3d 37 ( Eel River ). We do so.

In part E of the Discussion, post , we have reviewed Eel River and determined that the Interstate Commerce Commission Termination Act (ICCTA), at issue in Eel River , is materially distinguishable from the FPA. We shall conclude that Eel River does not apply in this case. Eel River did not involve the FPA. At issue was whether the ICCTA preempted the application of CEQA to a project to resume freight service on a stretch of rail line owned by the North Coast Railroad Authority. The Legislature created the North Coast Railroad Authority and gave it power to acquire property and operate a railroad, to be owned by a subsidiary of the state. The Supreme Court found the purpose of the federal law was deregulatory and the state as the owner of the railroad was granted autonomy to apply its environmental law. For that reason, the federal law did not preempt the application of CEQA to the railroad.

INTRODUCTION

Oroville Dam was completed in 1968 as part of the State Water Project (SWP). It blocks access to 66.9 miles of high-quality habitat for anadromous fish (salmon & steelhead). FERC licenses are conditioned on the adoption of a plan for the "adequate protection, mitigation, and enhancement of fish and wildlife ... and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes...." ( 16 U.S.C. § 803(a)(1).) The Feather River Fish Hatchery was built to compensate for the loss of spawning grounds resulting from the construction of Oroville Dam.

A federal license is required by the FPA for the construction and operation of a hydroelectric dam. The license is issued by FERC. As we explain, with one relevant exception the FPA occupies the field of licensing a hydroelectric dam and bars review in the state courts of matters subject to review by FERC. (See, e.g., First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143 ( First Iowa ).) The reason is that a dual final authority with a duplicate system of state permits and federal licenses required for each project would be unworkable. In this case the duplicate authority involves the separate NEPA (National Environmental Protection Act) and CEQA reviews of the SA. ( Ibid. )

The exception to preemption lies with the state's authority to impose more stringent water quality conditions on the license than federally required pursuant to section 401 ( 33 U.S.C. § 1341 ; hereinafter section 401) of the Clean Water Act4 ( 33 U.S.C. § 1251 et seq. ).5 In California the authority to establish the conditions is vested in the state water pollution control board (now State Water Resources Control Board (SWRCB)). ( Wat. Code, § 13160 et seq. ) The conditions must be set forth in a certificate to be incorporated in the license.6 The environmental predicate for the certificate is set forth in Appendix A of the SA in both NEPA and CEQA reviews of the conditions for the license. To avoid duplication of federal and state environmental reviews, the jurisdiction to review the environmental conditions lies with FERC.

The DWR proposes, in fulfillment of the environmental requirements of section 803 of title 16 of the United States Code, that new measures be taken to improve the conditions of fish and wildlife affected by the presence of the dam. The measures include a commitment by DWR to develop plans to enhance, protect, restore, and/or create habitat within the FERC boundary to be set forth in a certificate. These environmental plans, referred to as the "New Project License," are subject to CEQA environmental review when implemented.7 The DWR has selected a federal alternative procedure, an SA, for the fulfillment of its obligations. The SA involves the agreement of the parties affected by the extended license.

We shall conclude that the plaintiffs cannot challenge the environmental sufficiency of the SA in the state courts because jurisdiction to review the matter lies with FERC and plaintiffs did not seek federal review as required by 18 Code of Federal Regulations part 4.34(i)(6)(vii) (2003). Moreover, the plaintiffs did not challenge and could not challenge the SWRCB Certificate in their pleadings because it did not exist at the time this action was filed. The extended license issues upon the filing of a certificate and that cannot be delayed beyond one year from the date of a request for the certificate.8

Accordingly, this court has no jurisdiction of the cause tendered. We shall return the case to the trial court with an order to dismiss the complaint for lack of subject matter jurisdiction.9

FACTS10

The Oroville FERC Project No. 2100 is located on the Feather River in the Sierra Nevada foothills in Butte County, California. The Oroville Facilities were constructed between 1961 and 1968 as part of the SWP, a water storage and delivery system of reservoirs, aqueducts, power plants, and pumping plants designed to provide flood control and to store and distribute water to supplement the needs of urban and agricultural water users in both Northern and Southern California. The Oroville Dam is the largest earthen dam in the United States. The Oroville Facilities Project is operated for power generation, water quality improvement in the Sacramento–San Joaquin Delta, recreation, fish and wildlife enhancement, and flood management. The dam is designed to access the waters of Lake Oroville at different depths to allow control of the temperature of the water discharged from the dam. The only physical change to the existing dam is the opening of a water valve to access the cold water at the bottom of Lake Oroville.11

The Oroville Facilities include facilities and operations to help protect and enhance fish and wildlife species and their habitat. Many of the existing environmental programs implemented within the Oroville Facilities Project boundary are cooperatively managed or are based on agreements with other agencies such as the Department of Fish and Game and the United States Fish and Wildlife Service. This includes operation and maintenance of facilities such as the...

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  • Cnty. of Butte v. Dep't of Water Res.
    • United States
    • California Supreme Court
    • December 11, 2019
    ...publish in the Official Appellate Reports the opinion in the above-entitled appeal filed September 5, 2019, which appears at 39 Cal.App.5th 708, 252 Cal.Rptr.3d 435. ( Cal. Const., art. VI, § 14 ; Cal. Rules of Court, rule 8.1125(c)(1).)Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuel......

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