In re Bay-Delta Impact Report Proceedings

• Decision Date: 07 October 2005
• Docket Number: No. C044267.,No. C044577.,C044267.,C044577.
• Citation: 133 Cal.App.4th 154,34 Cal.Rptr.3d 696
• Court: California Court of Appeals Court of Appeals
• Parties: In re BAY-DELTA PROGRAMMATIC ENVIRONMENTAL IMPACT REPORT COORDINATED PROCEEDINGS. Don Laub et al., Plaintiffs and Appellants, v. Joseph Graham (Gray) Davis et al., Defendants and Respondents. Regional Council of Rural Counties et al., Plaintiffs and Appellants, v. State of California et al., Defendants and Respondents; Department of Water Resources et al., Real Parties in Interest and Respondents; San Joaquin River Group Authority et al., Interveners and Respondents.

34 Cal.Rptr.3d 696

133 Cal.App.4th 154

In re BAY-DELTA PROGRAMMATIC ENVIRONMENTAL IMPACT REPORT COORDINATED PROCEEDINGS.

Don Laub et al., Plaintiffs and Appellants, v. Joseph Graham (Gray) Davis et al., Defendants and Respondents.

Regional Council of Rural Counties et al., Plaintiffs and Appellants, v. State of California et al., Defendants and Respondents;

Department of Water Resources et al., Real Parties in Interest and Respondents;

San Joaquin River Group Authority et al., Interveners and Respondents.

No. C044267.

No. C044577.

Court of Appeal, Third District.

October 7, 2005.

Brenda J. Southwick, Sacramento, and Rebecca Dell Sheehan for Plaintiffs and Appellants Laub, Jacobsen, Sheely and California Farm Bureau Federation.

Gibson, Dunn & Crutcher and Alan Neal Bick, Irvine; Gibson, Dunn & Crutcher and Christopher H. Buckley, Jr., Washington, DC, as pro hac vice, for Plaintiff and Appellant California Farm Bureau Federation.

Nomellini, Grilli & McDaniel, Dante John Nomellini, Sr., Daniel A. McDaniel, Stockton, Dante John Nomellini, Jr.; Thomas M. Zuckerman and John Herrick, Stockton, for Plaintiffs and Appellants Central Delta Water Agency, R.C. Farms, Inc., Zuckerman-Mandeville, Inc., Mussi, and South Delta Water Agency.

Kerr & Wagstaffe, James M. Wagstaffe and Keith K. Fong, San Francisco, for Plaintiff and Appellant Regional Council of Rural Counties.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, Daniel L. Siegel, Danae J. Aitchison, Gordon B. Burns, Virginia A. Cahill, and Peter Southworth, Deputy Attorneys General for Defendants and Respondents State of California, Davis, California Resources Agency, Nichols, California Environmental Protection

Agency, Hickox, Department of Water Resources, Hannigan, Wright, CALFED Bay-Delta Program, and Department of Fish and Game.

Heller Ehrman White & McAuliffe, Nicholas W. van Aelstyn, San Francisco, Patricia K. Oliver, and Alissa B. Kolek, Los Angeles, for The Nature Conservancy as Amicus Curiae on behalf of Defendants and Respondents State of California, Davis, California Resources Agency, Nichols, California Environmental Protection Agency, Hickox, Department of Water Resources, Hannigan, Wright, CALFED Bay-Delta Program, and Department of Fish and Game.

Kronick, Moskovitz, Tiedemann & Girard, Clifford W. Schulz, and Eric N. Robinson, Sacramento, for Real Parties in Interest and Respondents State Water Contractors, Kern County Water Agency, and Tulare Lake Basin Water Storage District.

Sonnenschein Nath & Rosenthal and Kevin T. Haroff, San Francisco; Squire, Sanders & Dempsey, Kevin T. Haroff, and Olive Lee Thaler, San Francisco, for Real Party in Interest and Respondent Santa Clara Valley Water District.

Jeffrey Kightlinger, Los Angeles, Linus S. Masouredis, Oakland, and Adam C. Kear for Real Party in Interest and Respondent The Metropolital Water District of Southern California.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, and Jon D. Rubin, Sacramento, for Real Party in Interest and Respondent Westlands Water District.

Somach, Simmons & Dunn, Stuart L. Somach, Andrew M. Hitchings, and Nicholas A. Jacobs, Sacramento, for Real Party in Interest and Respondent Glenn-Colusa Irrigation District.

O'Laughlin & Paris and Tim O'Laughlin, Chico, for Interveners and Respondents.

HULL, J.

In response to concerns over the decline of water quality and the ecology of the San Francisco Bay and the Sacramento-San Joaquin Delta (Delta) and concerns over recurrent shortages of water for beneficial uses, 18 state and federal agencies with management or regulatory responsibility over the Bay-Delta formed CALFED to devise a long-range plan to address those concerns. After many years of study and analysis, including significant public participation, CALFED adopted a program (the CALFED Program or Program) to be administered over the next 30 years, which includes measures for improving the Bay-Delta ecosystem, water quality and quantity, and Delta levee stability. On August 28, 2000, the Secretary of the California Resources Agency certified the final Programmatic Environmental Impact Statement/Environmental Impact Report (PEIS/R) and CALFED adopted the Record of Decision (ROD) for the Program in accordance with the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) and the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

Appellants, who include the California Farm Bureau Federation (Farm Bureau), the Central Delta Water Agency (CDWA) and the Regional Council of Rural Counties (RCRC), filed petitions for writ of mandate challenging the PEIS/R under CEQA and asserting various non-CEQA claims based on actions taken or anticipated under the Program. The trial court found the PEIS/R satisfactory under CEQA and dismissed the non-CEQA claims as either premature or not properly stated.

Appellants challenge the trial court's rulings on a number of grounds. Among other things, they contend the PEIS/R does not contain a sufficient discussion of adverse environmental impacts, mitigation measures or alternatives. They also argue CALFED provided inadequate responses to public comments and the PEIS/R should have been re-circulated when new information about the Program was revealed late in the proceedings. Finally, appellants contend they have stated viable non-CEQA claims arising from conduct associated with implementation of the Program.

Following a summary of the facts and proceedings relevant to this matter, we first address appellants' CEQA issues. We reject appellants' challenges to the adequacy of the PEIS/R's analysis of Program impacts on the environment and, in particular, agriculture. With one exception, we also reject appellants' challenges to the adequacy of the PEIS/R's treatment of mitigation measures and alternatives. We also disagree with appellants' arguments regarding CALFED's responses to public comments and conclude there was no need for CALFED to re-circulate the PEIS/R due to CALFED's responses to public comments regarding the Environmental Water Account (EWA).

As to three matters, we agree with appellants the PEIS/R is legally insufficient. First, we conclude the PEIS/R improperly fails to discuss an alternative to the Program that requires reduced exports of water from the Delta. Second, we conclude the PEIS/R fails to include an adequate discussion of the environmental impacts of diverting water from various potential sources to meet the Program's goals. Third, we conclude certain significant information relating to the EWA should have been included in the PEIS/R.

Finally, we reject certain non-CEQA claims raised by appellants as either not properly stated or not adequately preserved for appeal.

We reverse the judgment in part.

FACTS AND PROCEEDINGS

I Introduction

Although the central focus of the CALFED Program is the environmental health of the Bay-Delta estuary, the problems that exist in that area cannot be divorced from the more generalized problems of water quality, quantity, and allocation that have long been a fact of life in the State of California (State).

"California is blessed with many lakes and streams, abundant winter snows and ample rains, but it is also plagued by a `water problem.' The problem of water supply is critical in California and made more so by the State's expanding population. Unfortunately, from a water supply point of view, population rarely seems to grow in the areas most endowed with domestic water supplies. The State water problem stems not only from the unprecedented recent growth of population, but also from the concurrent growth of industry and agriculture. California suffers in addition because for many years construction of water conservation works has not kept pace with the increasing need for water." (1 Rogers & Nichols, Water for California (Bancroft-Whitney 1967) § 1, p. 20 (hereafter Rogers & Nichols).)

Although the foregoing was written nearly 40 years ago, the problems recognized at that time continue in some form or another today. Added to the mix is a growing concern for the preservation and restoration of the State's natural resources and environment for the sake of endangered or threatened plant and animal species. Methods for solving water shortage and allocation problems in the past have become less palatable in today's more environmentally sensitive political climate, making the search for solutions ever more difficult.

The CALFED Program is the latest attempt to break the impasse among the various interest groups competing for water in California. One of the intractable problems the Program seeks to address is the disparity between the amount of water needed to satisfy the demands and desires of the State's various beneficial users and the amount of water available for such use. "Historically, the resolution of the physical fact of water scarcity in California has focused almost exclusively on the development and augmentation of water supplies. In the best tradition of the old West, water scarcity was viewed as something to be conquered rather than managed. Substantial amounts of public resources were invested in the construction and operation of vast storage and conveyance facilities." (Howitt et al., Competition for California Water: Alternative Resolutions (U. Cal. Press 1982) The Economics of Water Allocation, at p. 137.)

Those days are over. Limits of the developed water supply in the State are being reached, and there is fierce competition for what remains. (Gardner et al., Competition for California Water: Alternative Resolutions (U. Cal. Press 1982) Agriculture, at pp. 11, 14.) It is now recognized that each new project to harness greater amounts of water comes at a price beyond the cost of construction and maintenance. A new water reservoir or conveyance facility may mean the destruction of many acres of farmland or wildlife...