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.
JCCP No. 4152
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Fresno & Sacramento)
Filed 10/7/05
APPEAL from the Superior Court of
the County of Sacramento, Patricia C. Esgro, Judge. Reversed in part and affirmed in part.
Brenda J. Southwick and Rebecca Dell
Sheehan for Plaintiffs and Appellants Laub, Jacobsen, Sheely and California Farm Bureau Federation.
Gibson, Dunn & Crutcher and Alan
Neal Bick; Gibson, Dunn & Crutcher and Christopher H. Buckley, Jr., as pro
hac vice, for Plaintiff and Appellant California Farm Bureau Federation.
Nomellini, Grilli & McDaniel,
Dante John Nomellini, Sr., Daniel A. McDaniel, Dante John Nomellini, Jr.;
Thomas M. Zuckerman and John Herrick 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 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, Patricia K. Oliver, and Alissa B. Kolek 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 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; Squire, Sanders & Dempsey, Kevin T. Haroff, and Olive
Lee Thaler for Real Party in Interest and Respondent Santa Clara Valley Water
District.
Jeffrey Kightlinger, Linus S.
Masouredis, 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 for Real Party in Interest and
Respondent Westlands Water District.
Somach, Simmons & Dunn, Stuart
L. Somach, Andrew M. Hitchings, and Nicholas A. Jacobs for Real Party in
Interest and Respondent Glenn-Colusa Irrigation District.
O’Laughlin & Paris and Tim
O’Laughlin for Interveners and Respondents.
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.
To aid in
our examination of the CALFED Program and the issues raised in these
coordinated proceedings, we first place the Program in its proper geographic
and historic context. The Program is not
an isolated effort to restore the ecological health of the Bay-Delta or to
resolve conflicts among the State’s water users. The problems giving rise to CALFED have
lasted for decades, and the Program is the latest, and certainly the most
comprehensive and ambitious, attempt to provide relief to those dependent on
this State’s limited water resources.
II
The Delta
is a maze of tributaries, sloughs, and islands covering over 738,000 acres in
five counties. The legal boundary of the
Delta is roughly triangular, with the three vertices being Sacramento in the north, Vernalis in the south
and Pittsburg in the west. (United
States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82,
107.) The Bay-Delta estuary includes California’s two largest rivers, the Sacramento, which flows into the Delta from
the north, and the San Joaquin, which flows into the Delta from the south. Water that accumulates in these rivers flows
through the Delta and, if not diverted elsewhere, into Suisun Bay.
From there it continues to the San Francisco Bay and on to the Pacific Ocean.
(Rogers & Nichols, supra, § 26, p. 42.)
The Delta
originally consisted of overflow and seasonally inundated land. Today, this area is crisscrossed by the Sacramento
and San Joaquin Rivers
and many meandering sloughs, creating over 50 islands protected by levees that,
along with the adjacent mainland, contain highly productive farmland. (Littleworth & Garner, California Water (Solano Press
Books 1995) p. 126 (hereafter Littleworth & Garner); Hundley, The Great Thirst (U. Cal.
Press 2001) pp. 393-394 (hereafter Hundley).)
The Delta also contains major transportation networks, towns, homes and
businesses. Because this area is drying
out due to exposure to sun and wind by farming, it has been sinking at an
annual rate of two to five inches, faster than any other place on earth. “Islands that were at sea level
a century ago are now as much as twenty to thirty feet below sea level and
protected by old and increasingly precarious levees.” (Hundley, supra,
at p. 394.)
The Delta is the hub for distribution of water emptying
into the Bay-Delta estuary to other regions in the State, including the Central Valley
and Southern California. Average annual precipitation in California is approximately 24 inches. However, this amount varies from area to
area, with a low of almost nothing in the southern desert regions and a high of
100 inches in the mountainous north coast regions. (Littleworth & Garner, supra, at p. 2.) Sixty percent of the precipitation that falls
over the State eventually evaporates or is transpired by trees and other
vegetation. The rest, approximately 71
million acre-feet, ends up as runoff that gathers in streams and other
watercourses. Half of this runoff flows
through the Delta. (Rieke, The Bay-Delta Accord: A Stride Toward Sustainability (1996) 67
U.Colo. L.Rev. 341, 343 (hereafter Rieke)).
California’s Central Valley stretches nearly 500 miles from Redding in the north to Bakersfield in the south, and more than a
hundred miles from the Sierra Nevada in the east to the coastal ranges in the west. (Rogers & Nichols, supra,
§ 26, p. 42.) Average annual
precipitation in the Central Valley ranges from five inches in the south to more than 30
inches in the north, with more than three-fourths of this precipitation
occurring between December and April. (Id.,
§ 27, pp. 43-46.) The water flow of
the Sacramento and San Joaquin Rivers is also seasonal, with rains and
melting snow creating high flow in the spring and early summer. (See Rank
v. Krug (D.C. Cal. 1950) 90
F.Supp. 773, 784.)
The overall
amount of water runoff in the State varies from year to year. In 1977, total runoff was 15 million
acre-feet; in 1983, it was 135 million acre-feet. (Littleworth & Garner, supra, at p. 2.)
The State
has 450 groundwater basins capable of storing approximately 850 million
acre-feet of water. However, only half
of this water is close enough to the surface to be pumped economically. (Littleworth & Garner, supra, at p. 2.) Because the amount of water used in the State
has consistently exceeded the amount of developed water available, groundwater
reserves have been shrinking at a rate of over a million acre-feet per
year. (Hundley,
supra, at p. 2; Littleworth &
Garner, supra, at p. 3.) Most of
this groundwater overdraft has been in the Central
Valley.
(Coppock et al., Competition for California Water: Alternative Resolutions (U. Cal. Press 1982) The Problem, The Resource, The Competition,
at p. 3.)
III
Operation
of the CVP involves impounding the natural flow of the San Joaquin River at Friant Dam and diverting the
water through the Friant-Kern Canal to the southern reaches of the San Joaquin Valley.
(United States v. State Water
Resources Control Bd., supra, 182 Cal.App.3d at p. 99.) The other major aspect of the CVP
involves impounding the waters of the Sacramento River at Shasta Dam. The water allowed to flow past Shasta Dam in
the Sacramento
River is
augmented by water brought through a tunnel from the Trinity River and from reservoirs formed by
Folsom and Nimbus Dams on the American River.
This water eventually flows into the Delta. About 30 miles south of Sacramento, the Delta Cross Channel regulates
the flow of water through the Delta to the Tracy Pumping Plant. There, it is lifted into the Delta Mendota Canal through which it flows to the
Mendota Pool and eventually replaces the natural flow of the San Joaquin River.
(Ibid.)
The expansion
of agriculture, population increases and the side effects of the various water
projects have taken a toll on the State’s natural environment. The State has been called an “‘epicenter of
extinction,’” with at least 73 native species lost forever. (Carle, supra,
at p. 144.) Transformation of the Central Valley has resulted in the loss of nearly
all native grasses, riparian woodlands, and wetlands. (Ibid.) Only about 18 percent of the Central Valley’s original salmon spawning habitat
remains. (Id. at p. 146.) “Upstream
water development, depletion of natural flows and the export of water from the
Delta have changed seasonal patterns of inflow, reduced annual outflow and
muted the natural variability of flows into and through the Delta.”
Related SWRCB Water Quality Proceedings
For many years, the SWRCB failed to adopt a water-quality
plan adequate to stem the tide of declining fish populations in the Bay-Delta
and its tributaries. The federal
Environmental Protection Agency warned California
officials that protective measures were required to satisfy federal Clean Water
Act mandates. (Rieke, supra,
at p. 345.) Disputes arose over impacts
to the quality of Bay-Delta water caused by water transfers under the CVP and
SWP. (Id. at pp. 345-346.)
In 1978,
the SWRCB adopted a Water Quality Control Plan for the Delta and Suisun Marsh
(Water Right Decision 1485 or D-1485), which was intended
to take into account the effects of the water projects. (United States v. State
Water Resources Control Bd., supra,
182 Cal.App.3d at pp. 97-98.) In D-1485,
the SWRCB established water quality standards for salinity control to protect
beneficial uses and for the protection of fish and wildlife. In adopting standards to protect beneficial uses,
the SWRCB employed a so-called “without project” level of protection, whereby
water quality would be restored to the level that would have existed had the
water projects never been constructed. (Id.
at p. 115.)
D-1485 also modified the permits held
by the USBOR and the DWR regarding the CVP and SWP respectively so as to compel
the release of enough water into the Delta or the reduction in exports from the
Delta to maintain the water quality standards set in the water quality control
plan. (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 119.)
D-1485
led to years of litigation that ended when the Court of Appeal decided that,
while the use of a “without project” standard was appropriate, the SWRCB erred
in failing to consider the impacts on environmental degradation from upstream
diverters and polluters. (United States v. State Water
Resources Control Bd.,
supra, 182 Cal.App.3d at pp. 119-120.) The court
explained: “[W]e think the
imposition of without project standards upon the projects represents one
reasonable method of achieving water quality control in the Delta. But in order to fulfill adequately its water
quality planning obligations, we believe the Board cannot ignore other actions
which could be taken to achieve Delta water quality, such as remedial actions
to curtail excess diversions and pollution by other water users.” (Id.
at p. 120, italics omitted.)
However, in light of scheduled SWRCB hearings to adopt new standards,
the court concluded it was unnecessary to remand for revision of the earlier
standards. (Ibid.)
In 1987, the SWRCB began hearings on
the revision of water quality standards for the Bay-Delta estuary. (Littleworth
& Garner, supra, at p. 131.)
The next year, the SWRCB issued a report calling for a
reduction in water exports from 6 or 7 million acre-feet to 5.5 million
acre-feet and the adoption of stringent conservation measures. Northern California interests criticized the
plan for failing to guarantee a specific volume of water for flushing the
Bay-Delta of pollutants. (Hundley, supra, at pp. 404-405.) San Joaquin Valley farmers and Southern
California water agencies found fault with the report insisting that it was
based on a false premise, that is, that water quality problems in the Bay-Delta
are caused by a shortage of fresh water rather than the polluting practices of
those in the areas surrounding the Delta.
Based on this criticism, the SWRCB dropped any mention of limiting water
exports from the report. However, when
the SWRCB issued its final report in 1991, the Environmental Protection Agency
rejected it as failing to provide enough water for the Bay-Delta. (Id.
at pp. 405-406.)
That
same year, more than 100 State water agencies and 50 public interest groups
signed a Memorandum of Understanding (MOU) regarding urban water conservation
in California. The MOU identified 16
Best Management Practices for urban water use and committed the signatories to
certain implementation efforts between 1991 and 2001. The MOU established the California Urban Water
Conservation Council to monitor progress in conservation. (Littleworth & Garner, supra, at
p. 270.)
In
1993, the federal Environmental Protection Agency, National Marine Fisheries
Service, Fish and Wildlife Service, and Bureau of Reclamation issued proposed
water quality standards for the Bay-Delta estuary and designated critical
habitat for two fish species, the Delta smelt and the splittail. These actions galvanized agricultural and
urban water users, who developed a joint proposal to address Delta water
problems. Their proposal included export
limits and closure of diversions during critical periods. It also included non-flow measures, such as
diversion screens, waste discharge controls, fishing controls, and habitat
restoration. (Littleworth & Garner, supra,
at p. 135.)
As noted
earlier, the Owens Valley canal was extended north to Mono Lake in 1940. The following year, Mono Lake began shrinking
due to Southern California diversions.
(Carle, supra, at p.
183.) In 1983, the State Supreme Court
issued a decision concluding that the public trust doctrine (discussed infra) limits the amount of water that
can be taken out of Mono Lake. (See National Audubon Society v. Superior Court,
supra, 33 Cal.3d 419.) By 1986, the lake was 37 feet lower than when
diversions began. (Hundley, supra, at p. 343.) In
1994, the SWRCB issued Decision 1631, restricting diversions from Mono Lake
until the lake again reaches a level of 6,377 feet above sea level. (Littleworth & Garner, supra, at
p. 102.)
In
December 1994, the SWRCB issued a draft water quality plan for the Delta. In 1995, following public hearings, the SWRCB
adopted a final Bay-Delta Water Quality Control Plan. It is appropriate to note at this point that we grant the San Joaquin River Group
Authority’s request for judicial notice as to exhibits 1 and 7 only. We deny the request as to all other exhibits,
finding them to be irrelevant to this proceeding.
After
adoption of the 1995 Bay-Delta Plan, the SWRCB
conducted water rights proceedings to assign responsibility to water users to
meet the flow-dependent objectives of the 1995 Bay-Delta Plan. As an alternative, the SWRCB invited water
rights holders and other interested parties to reach settlement agreements on
the allocation of responsibility to meet flow dependent objectives. One such agreement, the San Joaquin River
Agreement, was presented to the SWRCB as a means of meeting April to May pulse
flow objectives and October salmon attraction flows in the San
Joaquin River. Having a proposed term of 12 years, the San
Joaquin River Agreement is intended to provide a mechanism for conducting the
Vernalis Adaptive Management Plan, an experiment “to determine the relative impact of
flow in the San Joaquin River and exports in the Delta on Chinook
salmon in the lower San Joaquin River.”
The Vernalis Adaptive Management Plan is “designed to assess the effect of export pumping at various
specific river flows, which range from 3,200 [cubic feet per second] to 7,000
[cubic feet per second]. [Citation.] Under the Vernalis Adaptive Management Plan
experiment, the flows at Vernalis during the April-May pulse flow period could
be lower than is required by the objectives in the 1995 Bay-Delta Plan, and the
export pumping rates would be lower than the pumping rates allowed in the
Plan.” Pursuant to the San Joaquin River
Agreement, some water rights holders would provide water for the Vernalis
Adaptive Management Plan and other flows for which they will receive $3 million
per year from the USBOR and $1 million from the DWR.
On
December
29, 1999, SWRCB issued Decision No. 1641,
which is currently the subject of another appeal pending in this Court. Among
other things, Decision No. 1641 recognized the San Joaquin River Agreement and
approved the Vernalis Adaptive Management Plan.
VI
CALFED
In June 1994, 18 state and federal
agencies with management or regulatory authority over the Bay-Delta, including
the California Resources Agency, SWRCB, DWR, California Department of Fish and
Game, USBOR, Marine Fisheries Service, U.S. Fish and Wildlife Service, Army
Corps of Engineers, and Environmental Protection Agency (collectively CALFED),
signed an agreement (the Framework Agreement) to coordinate their activities in
three areas: (1) operating the SWP and
CVP to accommodate environmental mandates; (2) establishing water quality
standards; and (3) developing a
long-term strategy for managing the Delta.
(Rieke, supra, at p.
362.)
In December
1994, the CALFED agencies signed a Statement of Principles for the Bay-Delta
Standards (the Bay-Delta Accord) setting interim Bay-Delta water quality
standards and water project constraints for the following three years. These standards were later extended until no
later than September 15, 2000.
(Fullerton, supra, at p. 103;
Littleworth & Garner, supra, at p. 136.) To protect water
quality, the Bay-Delta Accord called for additional fresh water flows through
the Delta of 0.4 million acre-feet in years of normal rainfall and 1.1 million
acre-feet in critically dry years. To
provide a measure of protection for water supplies to beneficial users, the
Bay-Delta Accord provided that any additional water needs arising from further
listings under the Endangered Species Act would be met by water purchases
financed by the federal government. (Rieke,
supra, at p. 348.)
The
Bay-Delta Accord also included a commitment to develop and fund nonflow-related
ecosystem restoration projects, commonly referred to as “Category III” projects, to address “unscreened
water diversions, waste discharges, water pollution prevention, fishery impacts
due to harvest and poaching, land-derived salts, exotic species, fish barriers,
channel alterations, riparian wetland loss, and other causes of estuarine
habitat degradation.” The Bay-Delta Accord incorporated salinity standards,
significant reductions in Delta exports during the critical spring period,
increases in San Joaquin River flows, reductions in export pumping,
restrictions on the take of endangered species, real time operation of Delta
pumps so that pumping is reduced when necessary for environmental protection
but increased when environmentally safe, and a $180 million fund to improve
habitat conditions through upstream restoration. (Fullerton, supra, at p. 104.)
As a direct
result of the Framework Agreement and the Bay-Delta Accord, the CALFED agencies
launched the CALFED Program, “an
unprecedented effort to build a framework for managing California’s most
precious natural resource: water.” (See Rieke,
supra, at p. 362.) The Program
is divided into three phases. Phase I is
concerned with identifying Bay-Delta problems, developing a mission statement
and guiding principles, and devising preliminary solution alternatives. During phase II, a preferred program
alternative is identified, environmental documents created, and a plan for the
first seven years of development devised.
Phase III involves implementation of the Program.
Phase I
began in May 1995 with a series of public workshops to define the problems of
the Bay-Delta and to devise potential alternative solutions. These efforts resulted in the development of
a mission statement, solution principles, and objectives. The Program’s mission statement reads as
follows: “The mission of the CALFED
Bay-Delta Program is to develop a long-term comprehensive plan that will
restore ecological health and improve water management for beneficial uses of
the Bay-Delta system.” Consistent with
this mission statement, CALFED identified the following primary objectives for
the Program:
(1) “Ecosystem
Quality--Improve and increase aquatic and terrestrial habitats and improve
ecological functions in the Bay-Delta to support sustainable populations of
diverse and valuable plant and animal species.”
(2) “Water
Supply--Reduce the mismatch between Bay-Delta water supplies and the
current and projected beneficial uses dependent on the Bay-Delta system.”
(3) “Water
Quality--Provide good water quality for all beneficial uses.”
(4) “Vulnerability
of Delta Functions--Reduce the risk to land use and associated economic
activities, water supply, infrastructure, and the ecosystem from catastrophic
breaching of Delta levees.”
Fifty
action categories and hundreds of individual actions were initially devised to
achieve the Program’s objectives. The
action categories became the building blocks for identifying alternatives, with
each alternative being a combination of action categories. In order to narrow the alternatives, CALFED
defined approaches to resolve four “critical conflicts” among beneficial
users: fisheries and diversions; habitat
and land use/flood protection; water supply availability and beneficial uses;
and water quality and land use.
Thirty-two approaches were identified for resolving these conflicts,
resulting in a list of 100 alternative approaches. These 100 alternatives were eventually
narrowed to 10.
In late
1995 and early 1996, the CALFED agencies executed a “Memorandum of
Understanding For Preparation of Environmental Impact Statement/Report” to
coordinate preparation of a single environmental document to satisfy the
requirements of both CEQA and National Environmental Policy Act. (Laub v. U.S. Dept. of Interior (9th Cir. 2003) 342 F.3d 1080,
1083.)
In 1996, the electorate passed
Proposition 204, the Safe, Clean, Reliable Water Supply Act, which committed
nearly $1 billion to water conservation and water quality efforts. Under the terms of the Bay-Delta Accord,
CALFED has begun the review and funding of various category III projects using Proposition 204
funds, stakeholder contributions, CVPIA restoration funds, and federal
appropriations.
In April
1996, CALFED conducted eight public meetings, one workshop and a meeting of the
Bay-Delta Advisory Council to
discuss the 10 alternatives. The Bay-Delta Advisory Council has 26
members representing the business, environmental, and agricultural sectors and
stakeholders of the water community.
Based on comments received and further analysis, CALFED staff concluded
that four “common” programs (water quality, levee system integrity, ecosystem
quality, and water use efficiency) must be combined with two variable
components (storage and conveyance) in order to satisfy the Program’s
objectives. In other words, all Program
alternatives would be nearly identical with respect to everything except water
storage and conveyance.
Phase I of
the Program was completed in August 1996.
In phase II, two additional “common” components were added to the
alternatives. A water transfer component
was spun off of the water use efficiency component and a watershed component
was created out of the water quality component.
Thus, six common components were combined with two variable
components.
On September 27, 2000, RCRC, CDWA, R. C. Farms, Inc.,
Zuckerman-Mandeville, Inc., Ruddi Mussi and the South Delta Water Agency
(collectively the RCRC Petitioners) filed a petition in the Sacramento County
Superior Court against the State, the State Resources Agency, the California
Environmental Protection Agency, and the respective secretaries of those
agencies (Regional Council of Rural Counties v. State of California
(Super. Ct. Sacramento County, 2000, No. 00CS01331) (hereafter RCRC v. State). Named as real parties in interest were DWR,
the United States of America, and various heads of federal agencies, including
Bruce Babbitt, the then Secretary of the Department of the Interior, and Carol
Browner, the then head of the Environmental Protection Agency.
RCRC is a
non-profit corporation providing representation for 28 rural California counties encompassing approximately
40 percent of the State’s land area.
CDWA is a political subdivision of the State encompassing approximately
120,000 acres of Delta land in the western portion of San Joaquin County that is primarily dedicated to
agriculture. CDWA is empowered to
protect the water rights of landowners within its jurisdiction. South Delta Water Agency is a political
subdivision of the State encompassing approximately 148,000 acres of south
Delta land primarily dedicated to agriculture.
The general purpose of South Delta Water Agency is to protect the water
supply for lands within its jurisdiction from intrusion of ocean salinity and
to assure a dependable supply of water.
The remaining RCRC Petitioners are owners of agricultural land in the
Delta.
As amended,
the petition contained two causes of action:
one alleging non-compliance with CEQA and the other purporting to state
a claim for reverse validation. In their
CEQA claim, the RCRC Petitioners alleged a plethora of deficiencies in the
PEIS/R as well as other defects in the environmental review process. In their reverse validation claim, the RCRC
Petitioners alleged the ROD contains a number of contractual commitments of
State funds that are invalid for many reasons, including the absence of
legislative authorization and the unauthorized gift of State assets. They also alleged the ROD’s commitment of no
decrease in exports and an increase in water exported to CVP water contractors
violates State law.
On December 12, 2000, the trial court granted a motion to intervene filed
by the San Joaquin River Group Authority, the San Joaquin River Exchange
Contractors Water Authority, and various irrigation districts located south of
the Delta.
Answers
were filed on behalf of the State Water Contractors, a mutual benefit corporation
representing the interests of 27 public agencies in the San Francisco Bay Area,
the Central Valley, and Southern California, the Santa Clara Valley Water
District, a member of the State Water Contractors, the Westlands Water
District, a holder of water rights in Fresno and Kings Counties, San Joaquin
County, the San Joaquin County Flood Control and Water Conservation District,
and Metropolitan.
At about
the same time the RCRC Petitioners initiated RCRC v. State, the
Municipal Water District of Orange County filed a separate petition in Los
Angeles County Superior Court alleging that the PEIS/R and ROD violate
CEQA. (Municipal Water District of Orange County v. California Resources Agency (Super. Ct. Los Angeles County,
2000, No. BC 237574) (hereafter Municipal Water District v. Resources Agency).) The real parties in interest named in this
proceeding were various State agencies, including the California Environmental
Protection Agency, the California Department of Fish and Game, and the California Department of Food
and Agriculture (CDFA). The Petition
alleged, among other things, the CALFED Program, if unmodified, “will
significantly and detrimentally impact the water supply reliability, quality
and conveyance of water” from the Delta to Southern California.
On September 28, 2000, the Farm Bureau, Don Laub, Debbie Jacobsen, and Ted
Sheely (collectively the Farm Bureau Petitioners) filed suit in federal
district court against CALFED and various agency officials challenging the
PEIS/R under CEQA and National Environmental Policy Act. The Farm Bureau “is a non-governmental,
non-profit, voluntary membership California corporation” whose purpose is “to
work for the protection of agriculture and the rural environment, and to find
solutions to the problems of the farm, the farm home and the rural community
throughout the Central Valley and the State. Its
members consist of 53 county Farm Bureaus and, through them, more
than 94,000 individual family members, including over 20,000 members within the
Central
Valley
counties of Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne.”
(Laub v. U.S. Dept. of Interior, supra, 342 F.3d at p.
1086.) Laub and Jacobsen are owners and
operators of approximately 1,040 acres of agricultural land on the east side of
the San Joaquin Valley and are members of the Fresno
County Farm Bureau, which is a member of the State Farm Bureau. Sheely owns and/or farms more than 1,000
acres of land in Fresno and Kings Counties and is a member of the Fresno
County Farm Bureau.
The federal
district court dismissed the CEQA claims against the State defendants, but
retained jurisdiction over the National Environmental Policy Act claims against
all defendants. (Laub v. U.S. Dept.
of Interior, supra, 342 F.3d at p. 1084.) The CEQA claims were refiled in State court
in Fresno County on December
19, 2000,
against the State defendants only. (Laub
v. Davis (Super. Ct. Fresno County, 2000, No. 00CE0511667) (hereafter Laub
v. Davis).)
On April 2, 2001, the foregoing matters were coordinated in Sacramento
County under the title Bay-Delta Programmatic EIR Cases, Judicial Council
Coordination Proceeding No. 4152 (the Bay-Delta Coordinated Proceeding). The Municipal Water District of Orange County
later dismissed its petition. On May 14, 2001, the Honorable Patrica Esgro was appointed coordination
judge for the Bay-Delta Coordinated Proceeding.
On August 3, 2001, the trial court granted The Bay Institute’s motion
to intervene in RCRC v. State.
The Bay Institute has over 2,500 members and is dedicated to the
protection and restoration of the ecosystems in the San Francisco Bay, the Delta, and the rivers,
streams, and watersheds tributary to them.
On August 13, 2001, Metropolitan moved to intervene in Laub v. Davis. Also on August 13, the State demurred to the
second cause of action (reverse validation) of the amended petition in RCRC
v. State. The trial court sustained
the State’s demurrers without leave to amend, explaining that a validation
proceeding is not a proper vehicle for scrutinizing the CALFED Program.
On January 18, 2002, the RCRC Petitioners moved to amend their first
amended petition. In addition to the
CEQA claim, the proposed amendment contained three new causes of action: (1) a taxpayer claim alleging improper
transfer of water to private parties; (2) a mandamus claim seeking to protect
the petitioners’ water rights; and (3) a declaratory relief claim seeking to
dictate the rules under which CALFED may operate. The court granted the motion on the condition
that the new causes of action are severed and trail the CEQA claim.
On March 14, 2002, the State moved for judgment on the pleadings in Laub
v. Davis, asserting the CEQA claim is barred by the applicable statute of
limitations. The State also demurred to
the first amendment to the first amended petition in RCRC v. State,
asserting the claims in the non-CEQA causes of action are not ripe for
adjudication.
The trial
court denied the State’s motion for judgment on the pleadings in Laub v.
Davis, concluding the claims were equitably tolled during the pendency of
the federal court action. On July 25, 2002, the court sustained with leave to amend the State’s
demurrers to the non-CEQA claims in the first amendment to the first amended
petition in RCRC v. State.
On August 26, 2002, the RCRC Petitioners filed a second amendment to
the first amended petition in RCRC v. State, containing the same causes
of action but with additional detail.
On October 18, 2002, the RCRC Petitioners filed an amendment to their
petition naming the following Doe respondents:
Patrick Wright, the Director of CALFED; the DWR; Thomas Hannigan, the
Director of the DWR; the California Department of Fish and Game; and Robert
Hight, the Director of the California Department of Fish and Game. The RCRC Petitioners also named a number of
Doe real parties in interest, including the United States Department of Land
Management, the United States Geological Survey, the City of Sacramento, the City and County of San Francisco, and the Natural Heritage
Institute.
On November 4, 2002, the State Water Contractors, Metropolitan and
others moved to strike or dismiss the State water law allegations contained in
the CEQA claim of RCRC v. State.
The trial court granted the motion, concluding the water law claims “are
premature, outside the scope of the CEQA process, and not supported by the
administrative record.”
On January 31, 2003, the State moved for judgment on the pleadings on
the non-CEQA claims in the second amendment.
The Kern County Water Agency similarly filed demurrers and a motion to
strike those claims. On April 10, 2003, the trial court ruled that nearly all of the
matters added to the petition in the second amendment concerned events occurring
after the original petition was filed and, therefore, required a supplemental
pleading rather than an amended pleading.
A supplemental pleading requires leave of the court, for which the RCRC
Petitioners failed to ask. The court
further ruled that, if leave had been sought, it would have been denied because
the supplemental pleading would have complicated the CEQA matter and there was
no prejudice to the RCRC Petitioners in being forced to file a new
petition.
On April 1, 2003, the trial court ruled on the CEQA claims in the Bay-Delta
Coordinated Proceeding, rejecting all of the petitioners’ arguments and
concluding the PEIS/R satisfies the requirements of CEQA. Judgment was thereafter entered against the
Farm Bureau Petitioners in Laub v. Davis and against the RCRC
Petitioners in RCRC v. State. On June 6, 2003, the Laub Petitioners filed a notice of appeal. The State filed a notice of
cross-appeal. On July 17, 2003, the RCRC Petitioners filed a notice of appeal. We ordered that these appeals be
consolidated. On April 1, 2004, the State moved to dismiss its cross-appeal. We grant the State’s motion to dismiss.
Discussion
I
CEQA
Claims
A. Generally
We first
address appellants’ CEQA claims.
Appellants contend the PEIS/R and the process leading up to adoption of
the ROD violated CEQA for a number of reasons.
Among other things, they argue the PEIS/R does not adequately address
impacts of the CALFED Program on agriculture and agricultural water in the State. They further argue the PEIS/R’s treatment of
alternatives and mitigation measures was deficient and CALFED did not provide
responses to all public comments received during the environmental review
process. Finally, appellants argue the
PEIS/R should have been recirculated after significant aspects of the Program
were revealed late in the environmental review process. We shall address each of these arguments in
turn, after first discussing the general requirements of CEQA.
A lead
agency must prepare an environmental impact report (EIR) on any project it intends to carry
out or approve “that may have a significant effect on the environment.” (Pub. Resources Code, § 21100, subd.
(a).) An EIR is an informational document, the
purpose of which “is to identify the significant effects on the environment of
a project, to identify alternatives to the project, and to indicate the manner
in which those significant effects can be mitigated or avoided.” (Pub. Resources Code, § 21002.1, subd.
(a).)
“The [EIR] is ‘“the heart of CEQA”’ and the
‘environmental “alarm bell” whose purpose it is to alert the public and its
responsible officials to environmental changes before they have reached
ecological points of no return.’
[Citation.] It is intended,
further, ‘“to demonstrate to an apprehensive citizenry that the agency has, in
fact, analyzed and considered the ecological implications of its action.”’ [Citation.]
‘Because the EIR must be certified or rejected by public officials, it is a
document of accountability. If CEQA is
scrupulously followed, the public will know the basis on which its responsible
officials either approve or reject environmentally significant action, and the
public, being duly informed, can respond accordingly to action with which it
disagrees . . . .
The EIR process protects not only the environment but also informed
self-government.’” (Sierra Club v.
State Bd. of Forestry (1994) 7 Cal.4th 1215, 1229.)
In order to
perform its informational role, the EIR must contain facts and analysis,
not the agency’s bare conclusions or opinions.
“This requirement enables the decision-makers and the public to make an
‘independent, reasoned judgment’ about a proposed project.” (Concerned Citizens of Costa Mesa, Inc. v.
32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935.)
While an
adequate EIR must contain sufficient information to enable decision makers to make
intelligent choices that take account of environmental consequences (Cal. Code
Regs., tit. 14, § 15151; hereafter Guidelines), it need only “reflect a good
faith effort at full disclosure; [CEQA] does not mandate perfection, nor does
it require an analysis to be exhaustive.”
(Dry Creek Citizens Coalition v. County of Tulare (1999) 70
Cal.App.4th 20, 26.)
CEQA is not
concerned with the ultimate decision reached by the agency on a proposed
project, only the content of the EIR.
Whether right or wrong, the ultimate decision of the agency “is a
nullity if based upon an EIR that does not provide the decision-makers, and the public,
with the information about the project that is required by CEQA.” (Santiago County Water Dist. v. County of
Orange (1981) 118 Cal.App.3d 818, 829 (hereafter Santiago County Water
Dist.).)
The present
matter involves a program EIR. CEQA applies to a
broad range of projects, from the approval of a single use permit to approval
of a general plan. (Guidelines, § 15378,
subd. (a)(1).) To accommodate these
different types of projects, CEQA provides different types of EIR’s.
(Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency
(2000) 82 Cal.App.4th 511, 527.) A
“program EIR” is one “which may be prepared on a series of actions that can be
characterized as one large project” and are related in specified ways, such as
“individual activities carried out under the same authorizing statutory or
regulatory authority and having generally similar environmental effects which
can be mitigated in similar ways.”
(Guidelines, § 15168, subd. (a)(4).) “A program EIR is designed to ‘(1) Provide an
occasion for a more exhaustive consideration of effects and alternatives than
would be practical in an EIR on an individual action, [¶] (2) Ensure consideration of
cumulative impacts that might be slighted in a case-by-case analysis, [¶] (3)
Avoid duplicative reconsideration of basic policy considerations, [¶] (4) Allow
the lead agency to consider broad policy alternatives and program wide
mitigation measures at an early time when the agency has greater flexibility to
deal with basic problems or cumulative impacts, [and] [¶] (5) Allow reduction
in paperwork.’ (Guidelines, § 15168,
subd. (b).)” (Friends of Mammoth v.
Town of Mammoth Lakes Redevelopment Agency, supra, at p. 531.)
For
projects consisting of a policy, plan, program or ordinance, CEQA encourages
tiering of EIR’s. “‘Tiering’ is ‘the coverage
of general matters and environmental effects in an [EIR] prepared for a policy, plan,
program or ordinance followed by narrower or site-specific [EIR’s] which incorporate by reference
the discussion in any prior [EIR] and which concentrate on the environmental effects
which (a) are capable of being mitigated, or (b) were not analyzed as
significant effects on the environment in the prior [EIR].’
(Pub. Resources Code, § 21068.5.)”
(Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency,
supra, 82 Cal.App.4th at p. 528.)
Through Public Resources Code section 21093, the Legislature has
encouraged tiering of EIR’s “when it helps a public agency to focus upon the issues
ripe for decision at each level of environmental review and in order to exclude
duplicative analysis of environmental effects examined in previous
environmental impact reports.” (Pub.
Resources Code, § 21093.)
B. The
PEIS/R Analysis of Program Impacts on the
Environment
1. Impacts on Agriculture
a. Introduction
Appellants
take issue with the PEIS/R’s analysis of Program impacts on agricultural
resources. They argue the analysis does
not adequately address either the direct or the indirect impacts of converting
agricultural resources to other uses.
Certain
general principles relating to EIR’s and certain observations regarding the nature of
appellants’ arguments and respondents’ replies are necessary to an
understanding of the manner in which we resolve this particular issue on the
merits.
An EIR must set forth all significant
effects of a project on the surrounding environment. (Pub. Resources Code, § 21100, subd.
(b)(1).) A significant effect on the
environment is a “substantial, or potentially substantial, adverse change[] in
physical conditions which exist within the area” of the project. (Pub. Resources Code, § 21100, subd.
(d).) To be significant, an impact must
be both substantial and adverse. (Guidelines,
§ 15382; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.)
In order to
assess a project’s impacts, an EIR must first place the project in its proper
perspective by describing the existing environment. (County of Amador v. El Dorado County
Water Agency (1999) 76 Cal.App.4th 931, 952.) The existing environment “will normally
constitute the baseline physical conditions by which a lead agency determines
whether an impact is significant.”
(Guidelines, § 15125, subd. (a); see Cadiz Land Co. v. Rail
Cycle (2000) 83 Cal.App.4th 74, 86.)
It encompasses “the physical conditions which exist within the area
which will be affected by a proposed project including land, air, water,
minerals, flora, fauna, ambient noise, and objects of historic or aesthetic
significance. . . . The ‘environment’ includes both natural and
man-made conditions.” (Guidelines, § 15360.) If the description of the existing
environment of a project is inaccurate or incomplete, the analysis that follows
will be flawed and the EIR does not comply with CEQA.
(Cadiz Land Co. v. Rail Cycle, supra, at p. 87.)
b. Impacts Arising from the Conversion of
Agricultural
Land
Turning to
the arguments, the Farm Bureau contends one aspect of the existing environment
that must be taken into consideration in assessing impacts is the fact that
land proposed for conversion to other uses under the Program is currently in
agriculture production. RCRC similarly
argues agricultural resources are “components of the physical environment that
must be evaluated in an EIR.” RCRC further
argues the PEIS/R “considered only the social and economic effects
flowing from the conversion of agricultural lands” and not the land conversion
itself.
Although
the arguments of the Farm Bureau and RCRC appear to be the same, they contain
one significant difference. In
summarizing its argument, RCRC states:
“[T]here can be no legitimate dispute that the conversion of
agricultural resources--which can result in loss of habitat, dust pollution,
and reduction in groundwater recharge-–presents potentially significant environmental
impacts that must be analyzed specifically in an EIR.”
In other words, the conversion of agricultural land to other uses may
have a significant environmental impact because such conversion may lead to the
loss of habitat or have other environmentally harmful consequences. This argument is merely a restatement of the
basic CEQA requirement that an EIR discuss the adverse environmental impacts of a
project. While this is not subject to
dispute, it hardly assists RCRC. Adverse
environmental impacts must be discussed whether or not the project involves the
conversion of land currently in agricultural production.
The Farm
Bureau’s argument is not the same. The
Farm Bureau asserts the conversion of agricultural land to other uses, in and
of itself, is a potentially adverse environmental impact, whether or not there
is a corresponding physical change in the environment.
Metropolitan argues appellants are seeking a per se
rule under which the amount of land currently used for agricultural purposes is
a baseline condition and any reduction in that amount will always be a
significant adverse environmental impact.
Metropolitan is only partly correct.
Appellants do contend the current amount of agricultural land is the baseline
from which environmental impacts must be assessed. However, appellants do not seek a per se
rule. They argue the fact that
agricultural land converted in a project must be taken into consideration,
along with other factors, in determining whether there is a significant
environmental impact.
The Nature
Conservancy requests we take judicial notice of the 2003 Annual Report of the
California Bay-Delta Authority, the entity established on January 1, 2003 to oversee the CALFED Program. (See Wat. Code, § 79410 et seq.) The Nature Conservancy asserts this report
shows that 87 percent of the land that had been protected for ecosystem
purposes under the CALFED Program up to the date of the report “‘has remained
as privately owned agricultural land.’”
The implication the Nature Conservancy seeks from this report is that
appellants’ concerns over the conversion of agricultural land are unjustifiably
exaggerated.
The Nature
Conservancy argues the annual report is an official act of a governmental
agency subject to judicial notice under Evidence Code section 452, subdivision
(c). This section permits judicial
notice of “[o]fficial acts of the legislative, executive, and judicial
departments of the United States and of any state of the United States.”
“Official acts include records, reports and orders of administrative
agencies.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)
While we
can take judicial notice of an official report of an administrative agency,
this does not mean we can take judicial notice of all the facts stated
therein. “Judicial notice of a matter
means that the court will recognize the existence of that matter of law or fact
without the need for formal proof and generally means that the court will treat
the matter as true.” (2 Jefferson, Cal. Evidence Benchbook (3d ed. 2005)
Judicial Notice, § 47.8, p. 1123.)
An official report may be subject to judicial notice. However, the most it may prove is that the
report was issued and the author made the statements or reached the conclusions
stated therein. “The truth of any
factual matters that might be deduced from official records is not the proper
subject of judicial notice.” (Lockley v. Law Office of Cantrell, Green,
Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) Because the Nature Conservancy is attempting
to establish the truth of statements made in the annual report, not the fact
that the report was issued or that the statements were made, its request for
judicial notice is denied. We consider
its argument on this point no further.
Turning
then to the essence of the Farm Bureau’s arguments, in support of its
contention that the PEIS/R was required to consider the conversion and, thus,
the loss, of agricultural land as a potentially significant impact in and of
itself, the Farm Bureau cites Public Resources Code section 21095. It reads in part: “(a) The Resources Agency, in consultation
with the Office of Planning and Research, shall develop an amendment to
Appendix G of the state guidelines, for adoption pursuant to Section 21083, to
provide lead agencies an optional methodology to ensure that significant
effects on the environment of agricultural land conversions are quantitatively
and consistently considered in the environmental review process.” (Pub. Resources Code, § 21095, subd.
(a).) The Farm Bureau argues this
section, along with related provisions, demonstrates a legislative intent to
protect the agricultural nature and productivity of land, not just its physical
attributes.
The trial
court disagreed, explaining: Public
Resources Code section 21095, subdivision (a) “discusses methodologies ‘to
ensure that significant effects on the environment of agricultural land
conversions are quantitatively and consistently considered’ in the EIR process. The emphasis is on the environmental effects
on land that happens to be agricultural.
The Court believes that CEQA directs attention of policymakers to
projects that affect agricultural lands because these are areas where other
important environmental values (e.g., wildlife and habitat) often may be
found.”
The Farm
Bureau insists the trial court erred in its interpretation of Public Resources
Code section 21095. However, because our
review is de novo, we are not concerned with the trial court’s reasoning. (Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270,
1277.) Like the trial court, we review
the PEIS/R to determine if it satisfies the requirements of CEQA. Thus, the question presented to this court on
the Farm Bureau’s contention is twofold:
(1) Is the PEIS/R required to consider the conversion of agricultural
land to other uses to be a potentially adverse impact regardless of whether
such conversion results in a physical change to the land? (2) Does the PEIS/R satisfy this
requirement?
The Farm
Bureau goes to great lengths to convince us that the answer to the first question
is “yes.” In addition to Public
Resources Code section 21095, the Farm Bureau discusses other sections of the
Public Resources Code, appendix G of the Guidelines, a land evaluation and site
assessment system devised to examine the agricultural value of land, the
legislative history of the various code sections, and several state and federal
court decisions. However, the Farm
Bureau virtually ignores the second question.
The closest it comes to dealing with it is to acknowledge that “the
Resources Agency made the factual finding that the [P]rogram’s conversion of
agricultural land to project uses resulted [sic] in a significant impact
on the environment.” In effect, the Farm
Bureau concedes the PEIS/R treats the conversion of agricultural land to other
uses, in and of itself, as a potentially significant impact.
Nevertheless, the Farm Bureau argues
this impact analysis is “far less specific” than the description of the project
itself. The degree of specificity
required in an EIR must correspond with the degree of specificity of the
proposed project. (Guidelines,
§ 15146.) According to the Farm
Bureau, the PEIS/R and related documents provided substantial detail about particular
locations where agricultural land would have to be converted to other Program
uses, but the analysis of the impacts of such conversion “was belated, terse
and inadequate, simply asserting that such impacts were ‘unavoidable.’”
In Galante
Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60
Cal.App.4th 1109 (hereafter Galante Vineyards), the petitioners
challenged the certification of an EIR for the construction of a dam and
reservoir. The petitioners claimed the EIR did not adequately study the
project’s impacts on local viticulture and agriculture. The trial court issued a peremptory writ
directing the water management district to void the certification of the EIR and to prepare a supplemental EIR focusing on viticultural
issues. (Id. at pp.
1113-1116.)
The Court
of Appeal affirmed. The court first
concluded the EIR did not contain a sufficient description of the viticulture in the
project area: “The ‘Land Use, Planning
and Recreation’ chapter of the final EIR describes the land uses surrounding
the project site as consisting:
‘generally of undeveloped forested open space. The Wilderness Area stretches further south
and adjacent to the project site. . . . Land use to the north includes very low
density rural residential properties and limited grazing. East and west of the project site is
mostly undeveloped land with some grazing, agriculture and scattered rural
residential use. No development has
been proposed for the project site and surrounding area.’ The ‘Climate and Air Quality’ chapter of the
final EIR describes the area as ‘sparsely
populated, with no industry other than several vineyards in the Cachagua Valley.’ The
italicized sentences constitute the only references in the EIR to viticulture or wineries, despite
the fact that the District had previously been advised of the importance of
viticulture in the Cachagua area . . . .” (Galante Vineyards, supra, 60
Cal.App.4th at p. 1122.)
The PEIS/R at issue in the present
matter is significantly different from the EIR at issue in Galante Vineyards. Here, the presence of extensive agricultural
land in the Program area is set forth in considerable detail, including general
location, acreage and crop types. The
PEIS/R describes the Program area as “an important agricultural region for both
California and the United States.”
The PEIS/R notes that the Program area “encompasses approximately 85% of
total California irrigated land” and covers portions of 39 counties that
contribute 95 percent of California’s agricultural production. The PEIS/R contains tables listing the total
number of acres of important agricultural land in the various regions of the
Program area in 1996 and breaking down the number of acres dedicated to
different types of crops.
Section 7.1
of the PEIS/R is entitled “Agricultural Land and Water Use.” In a table entitled “Summary of Potentially
Significant Adverse Impacts and Mitigation Strategies Associated with the
Preferred Program Alternative,” the first entry reads: “Conversion of prime, statewide important,
and unique farmlands to project uses.”
In a section dealing with consequences of the Program’s common
components, the PEIS/R states: “The
Ecosystem Restoration Program involves conversion of land in the Delta Region
to habitat and ecosystem restoration, levee setbacks, and floodways. In general, agriculture is the dominant land
use on the nonconveyance side of levee structures in the Delta. The Ecosystem Restoration Program could
convert up to 112,000 acres of important farmland. Although some of these agricultural uses may
be shifted to the Central Valley or elsewhere, this conversion is a potentially significant
unavoidable adverse impact on agricultural land use.” The PEIS/R also explains that “[l]evee system
integrity measures could convert up to 35,000 acres of land in the Delta to
Program uses, most of which would likely be important agricultural land,” and
“[a]ll Program alternatives . . . include the possibility of in-Delta
storage, which could result in potentially significant impacts on agricultural
lands in the region.” The PEIS/R
describes the possibility of agricultural land conversions in other Program
areas due to the common components and optional new storage.
Later, the PEIS/R states: “Actions associated with the Ecosystem
Restoration, Levee System Integrity, and Water Quality Programs, and the
Storage and Conveyance elements could convert up to a maximum of 243,000 acres
of existing prime, statewide important, and unique farmland to Program
uses. The loss of agricultural lands in
these categories cannot be fully mitigated and is considered potentially
significant. . . .” In another
section, the PEIS/R lists those results of Program actions that would be
considered adverse effects. On the top
of the list is “[p]ermanent or long-term reduction in acres of irrigated land
in a region.”
Although a
response to a public comment said, “‘impairment in the productivity of
agricultural land’ is not an environmental impact under CEQA,” this is a
reference to economic impacts alone.
Elsewhere, the response states:
“We agree that conversion of important farmlands may be a potentially
significant environmental impact and that the impact is included in CEQA
Guidelines appendix G. Section 7.1
treats the conversion of agricultural land as a potentially significant unavoidable
impact of the Program.” The response
also states: “As used in CEQA, the
‘existing environment’ contains both natural and human-made features. Section 7.1 describes the existing
environment as it pertains to agriculture.”
The Farm Bureau does not explain
what additional information the PEIS/R should have included about potential
impacts to specific parcels of agricultural land or to agricultural land in
general. Nor does the Farm Bureau
explain how additional information would have made the PEIS/R a more effective
informational document for decision makers and the public.
What the Farm Bureau appears to
dislike is not the level of detail about impacts to agricultural land but the
conclusion that such impacts are unavoidable. The Farm Bureau argues this assertion
“conflicts with [CALFED’s] identification of a feasible alternative during the
scoping phase that would resolve the ‘conflict between habitat and the existing
land use’ by ‘improv[ing] habitat quality and protect[ing] existing land uses
in the Bay-Delta system in ways that do not entail converting existing land
uses to other uses.’” The Farm Bureau
argues that, “while it may be ‘unavoidable’ to convert ‘some’ agricultural
land, it is not therefore ‘unavoidable’ to convert the hundreds of thousands of
acres of agricultural land at issue in this case.”
Having rejected this challenge to
the PEIS/R’s impacts analysis, we necessarily dispose of the Farm Bureau’s
related argument that the trial court erroneously concluded CALFED properly
determined the conversion of agricultural land to habitat will not have an
adverse environmental impact. The trial
court stated: “While many typical
projects result in conversions of land to more intensive use, the anticipated
land acquisitions and land use controls here are designed to restore habitat. Also, while many projects result in the
depletion of streams for consumptive uses or the degrading of quality due to
industrial processes, one of CALFED’s purposes is to increase the water for
instream uses, benefiting surface water quality and aquatic species. In view of CALFED’s restorative goals, the
Resources Agency was well within its discretion to view less intensive uses of
land and water as generally producing less than significant impacts on the
environment.”
The problem with the trial court’s
analysis is that, as we have explained, CALFED found just the opposite--that
the conversion of agricultural land to Program uses is a potentially
adverse impact. However, this does not
assist the Farm Bureau. As indicated
previously, we review the PEIS/R de novo and are not concerned with the trial
court’s reasoning. (Fat v. County of
Sacramento, supra, 97 Cal.App.4th at p. 1277.) Since the PEIS/R adequately discloses adverse
impacts to agricultural land, the fact that the trial court was wrong in this
regard is of no concern.
We also
dispose of RCRC’s argument that the trial court erred in concluding
agricultural land might suffer greater harm if the Program is not
implemented. RCRC argues “[a]
determination that a project’s benefits override its significant environmental
impacts cannot serve as a substitute for the specific findings required by
CEQA.” Because the PEIS/R specifically
found the conversion of agricultural land is an adverse impact of the Program,
there was no attempt to substitute a finding that the Program’s benefits
override its adverse impacts for the specific findings required by CEQA.
Finally, we
reject Metropolitan’s request for judicial notice of various legislative
history materials concerning Public Resources Code section 21095 and related
provisions and the Farm Bureau’s request for judicial notice of federal
regulations relating to the land evaluation and site assessment program. Having concluded the PEIS/R adequately
addresses the impacts of agricultural land conversion, it is unnecessary to
determine if CALFED was obligated to do so.
The Farm
Bureau contends the PEIS/R fails to analyze the reduction in the human food
supply that will result from the retirement of agricultural land and the
redirection of agricultural water to other uses.
A mandatory
finding of significance is required where “[t]he environmental effects of a
project will cause substantial adverse effects on human beings, either directly
or indirectly.” (Guidelines,
§ 15065, subd. (a)(4).)
In the
responses to comments, the PEIS/R states:
“There is currently a sufficient surplus in the national food system
that the market would allow replacement” of certain crops such as feed corn,
alfalfa, wheat, pears, and almonds. The
Farm Bureau argues the PEIS/R contains no evidence to support this
conclusion.
As stated earlier, an EIR “must contain facts and analysis,
not just the bare conclusions of a public agency. An agency’s opinion concerning matters within
its expertise is of obvious value, but the public and decision-makers, for whom
the EIR is prepared, should also have
before them the basis for that opinion so as to enable them to make an
independent, reasoned judgment.” (Santiago
County Water Dist., supra, 118
Cal.App.3d at p. 831; see also Kings County Farm Bureau v. City of Hanford
(1990) 221 Cal.App.3d 692, 736.)
The State
responds to the Farm Bureau by arguing that the effects of a proposed project
on the human food supply are not environmental impacts but economic impacts
that do not require CEQA analysis.
The CEQA
Guidelines provide: “Economic or social
effects of a project shall not be treated as significant effects on the
environment.” (Guidelines, § 15131,
subd. (a).) For example, the need for
childcare caused by a project is a socio-economic impact and need not be
analyzed. (See San Franciscans for
Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d
1502, 1516.) However, economic and
social changes may be used “to determine that a physical change shall be
regarded as a significant effect on the environment. Where a physical change is caused by economic
or social effects of a project, the physical change may be regarded as a significant
effect in the same manner as any other physical change resulting from the
project. Alternatively, economic and
social effects of a physical change may be used to determine that the physical
change is a significant effect on the environment. . . .” (Guidelines, § 15064, subd. (e).)
b. Indirect Social and Economic Impacts
Arising
from
Agricultural Conversions
RCRC
contends the trial court erred in concluding the PEIS/R need not consider
economic and social impacts of the Program.
However, RCRC follows this up with an argument that the PEIS/R
considered only socio-economic impacts.
We are thus left to wonder what it is RCRC finds objectionable--that the
PEIS/R did not consider socio-economic factors or that it considered only such factors. Since we are not required to engage in
speculation as to the true nature of litigants’ arguments on appeal, we will
consider RCRC’s contentions on this issue no further.
The Farm
Bureau argues the disclosures in the PEIS/R relating to the indirect impacts of
agricultural conversion are inadequate.
In
identifying significant environmental impacts of a project, both “[d]irect and
indirect significant effects . . . shall be clearly identified and
described, giving due consideration to both the short-term and long-term
effects.” (Guidelines, § 15126.2.) Economic and social changes caused by a
project must be considered in determining whether a physical change in the
environment is significant. (Guidelines,
§ 15064, subd. (e).)
According to the Farm Bureau, the PEIS/R failed to
analyze the “well known and common phenomenon” of conversion of agricultural
land leading to the depletion of agricultural infrastructure and, in turn, the
conversion of more agricultural land.
The State counters that the Farm
Bureau failed to exhaust its administrative remedies regarding this
contention.
“No action or proceeding may be
brought pursuant to [Public Resources Code] Section 21167 unless the alleged
grounds for noncompliance with this division were presented to the public
agency orally or in writing by any person during the public comment period provided
by this division or prior to the close of the public hearing on the project
before the issuance of the notice of determination.” (Pub. Resources Code, § 21177, subd.
(a).) “It is well settled as a general
proposition that a litigant will not be afforded relief in the courts unless
and until he has exhausted available administrative remedies.” (In re
Strick (1983) 148 Cal.App.3d 906, 911.)
The doctrine of exhaustion is a fundamental rule of procedure. (Abelleira
v. District Court of Appeal (1941)
17 Cal.2d 280, 293.) A primary purpose
of the doctrine is to lighten the load on the courts in cases where
administrative remedies are available and are as likely as the judicial remedy
to provide the desired relief. (Duffy v. State Bd. of Equalization (1984) 152 Cal.App.3d 1156, 1164; Morton v. Superior Court (1970) 9 Cal.App.3d 977, 982.)
In its letters commenting on the
March 1998 and June 1999 draft PEIS/R’s, the Farm Bureau said nothing about the
inadequacy of the indirect impacts analysis.
The Farm Bureau argues it mentioned the inadequacy of such analysis in
its August 2000 letter commenting on the final PEIS/R. In that letter, the Farm Bureau mentioned
what it considered to be the most glaring failures of the PEIS/R: “The absence of a cumulative impacts
analysis”; “The absence of an agricultural resources mitigation protocol”; and
“Complete failure to address proposals . . . regarding Partnership
For Restoration in order to facilitate Endangered Species Act
compliance . . . .”
This was followed by another section entitled “Indirect Effects of
Converting Agricultural Resources to Other Uses, Resulting in More Urban
Sprawl.” In that section, the Farm
Bureau stated: “As more farmers and
ranchers are forced to consider other options, the agricultural community
shrinks and the necessary infrastructure begins to disappear. When the rural community dissipates, land
that can be sold to developers will be converted to additional urban
development. Thus, every failed
agricultural community fostered by CALFED’s takeover of agricultural resources
(or funding of same) will breed urban sprawl as the affected communities seek
alternative means of survival.”
The foregoing was not a complaint
about the inadequacy of the indirect impacts analysis in the draft PEIS/R. At most it was an assertion that the analysis
of growth-inducing impacts (to be discussed later) was inadequate. The Farm Bureau argues it “specifically
pointed out in this section that ‘CALFED’s environmental evaluation fails to
discuss the assessment of proposed conservation measures’ such that they will
‘have no significant redirected impacts.’”
Redirected impacts have nothing
to do with indirect impacts. Redirected
impacts concern CALFED’s goal of not fixing one problem by creating another one
somewhere else.
Project
opponents must voice their grievances with specificity during administrative
proceedings. (Coalition for Student
Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197-1198.) “The essence of the exhaustion doctrine is
the public agency’s opportunity to receive and respond to articulated factual
issues and legal theories before its
actions are subjected to judicial review.”
(Id. at p. 1198.) The Farm
Bureau failed to provide CALFED with an opportunity to address any purported
inadequacy of the PEIS/R’s indirect
impacts analysis. It has therefore
waived the argument for purposes of this appeal.
c. Local Impacts from Increased Water
Exports
In its
opening brief, RCRC included a one-page section entitled “The [PEIS/R] Failed
to Consider the Program’s Localized Impacts.”
There, RCRC argues the PEIS/R “should have examined the impacts in terms
of the increased water exports through the Delta along with the potential for
increased salinity and harm to fish and wildlife.” RCRC further argues CALFED may not “ignore
the local impacts of its program on RCRC’s member counties-–counties from which
CALFED propose[s] to take more water-–by assuming that the greater good
outweighs any local impacts.”
The State
argues RCRC waived this argument by failing to provide more than introductory
comments and omitting legal citations.
It is the general rule that, where
a point is raised in an appellate brief without argument or legal support, “it
is deemed to be without foundation and requires no discussion by the reviewing
court.” (Atchley v. City of Fresno
(1984) 151 Cal.App.3d 635, 647.) However, there was no need to provide
further argument here. Legal argument
for the requirement to analyze all environmental impacts in the EIR is found
elsewhere in RCRC’s brief. A claim that
necessary information has been excluded from the PEIS/R requires no further
explanation. It is incumbent on
respondents to demonstrate that the information was included.
The
State next argues local impacts of the Program were analyzed in the
PEIS/R. Specifically, in the Water Supply and Water
Management section, the PEIS/R states:
“Potential long-term adverse impacts on specific regional agricultural
and urban water supplies could result from increased water transfers. Areas with adequate water supplies could
transfer portions of those supplies to areas with higher economic return from
the use of water. Water transfers can affect
third parties (those not directly involved in the transaction), local groundwater,
environmental conditions, or other resource areas.” It also states that “[t]emporary local
impacts on water supply reliability could occur during construction of the
Program’s proposed facilities.”
In the Vegetation and Wildlife
section, the PEIS/R states that “[s]ome transfers of water could locally reduce
the availability of wetland, riparian, and other habitats for some
species . . . .”
Water storage construction “could potentially fragment riparian
corridors and disrupt historical movement patterns of some wildlife.” The PEIS/R indicates that, “[b]ecause of the
uncertainty that is inherent for the current programmatic analysis, this
document concludes that some reservoir sites under consideration could result
in significant unavoidable impacts on these resources.”
Greater
detail about local impacts of Program components would have been difficult
given the unsettled nature of the Program at this stage. The PEIS/R states: “Water transfers would affect water quality
primarily through changes to river flow and water temperatures. In addition, the source of water for a
transfer and the timing, magnitude, and pathway of each transfer would
determine the potential for significant impacts. . . . Because specific transfers can invoke both
beneficial and adverse impacts, at times on the same resource, net effects must
be considered on a case-by-case basis.”
The State
argues the PEIS/R adequately analyzes how the Program could affect fish and
wildlife, salinity and the bioavailability of mercury, and groundwater
extraction. However, the State does not
address RCRC’s argument about the effects on Northern California counties from increased water
exports through the Delta. Logic tells
us that increased exports from the Delta require increased imports to the
Delta. Increased imports to the Delta
must come from somewhere, and that somewhere will likely be the counties
represented by RCRC. The PEIS/R makes no
attempt to analyze the impacts to those counties from the flow of additional
water to the Delta for export elsewhere.
But, as discussed previously, the PEIS/R does not disclose the source of
Program water. It indicates such water
may come from conservation, willing sellers or storage. Without knowing the source of Program water,
it would have been speculation to assess local impacts of water diversion. An EIR is not required to engage in
speculation. (Marin Mun. Water Dist.
v. KG Land California Corp., supra, 235 Cal.App.3d at p. 1662.) We shall address the PEIS/R’s failure to
identify the source of water later.
d. Growth Inducing Impacts
The Farm
Bureau contends the PEIS/R is deficient in concluding the Program will have no
growth-inducing impacts. The Farm Bureau
argues there are at least two ways the Program will stimulate growth: (1) “the proposed conveyance and storage
programs will improve delivery and increase water supplies for urban users”;
and (2) “the conversion of farmland to habitat through the [Ecosystem
Restoration Program] will damage the agricultural infrastructure via indirect
impacts” and lead to urbanization.
The State
argues the Farm Bureau has waived its challenge to the lack of analysis of
growth-inducing impacts by failing to raise it in the administrative
proceedings. We agree in part. As noted earlier, the Farm Bureau’s August
2000 letter commenting on the final PEIS/R mentioned that the retirement of
agricultural land for Program purposes will lead to further urbanization. However, there was no mention of the improved
delivery of water and increased urban supplies causing urban growth. Thus, the only issue preserved for appeal is
whether the PEIS/R should have mentioned that the retirement of farmland could
damage agricultural infrastructure thereby facilitating urbanization.
“[An] EIR must discuss growth-inducing
impacts even though those impacts are not themselves a part of the project
under consideration, and even though the extent of the growth is difficult to
calculate.” (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342,
368.) In determining if a project has
growth-inducing impacts, courts generally look to whether the project sets in
motion market forces that can lead to economic pressure for growth. In City of Antioch v. City Council
(1986) 187 Cal.App.3d 1325, the Court of Appeal found the city council’s
adoption of a negative declaration for a proposed road and sewer project
violated CEQA. The city council had
argued that because the project involved no building construction and the type
of development to follow was unknown, preparation of an EIR at that stage was unnecessary. (Id. at p. 1333.) The Court of Appeal disagreed: “Construction of the roadway and utilities
cannot be considered in isolation from the development it presages. Although the environmental impacts of future
development cannot be presently predicted, it is very likely these impacts will
be substantial.” (Id. at p.
1336.) According to the court, CEQA
requires preparation of an EIR that considers the “most probable development
patterns.” (Id. at p. 1337.)
In Stanislaus
Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144,
the county certified a negative declaration for the construction of a golf
course and attendant facilities on a parcel used for grazing. (Id. at pp. 147-148.) The record contained substantial evidence
supporting a fair argument that the proposed golf course could have a
significant adverse growth-inducing effect on the surrounding area. (Id. at p. 152.) The county’s initial project study said that,
“‘[a]lthough the project site as well as surrounding lands are covered by the
provision of a Williamson Act Land Contract, staff cannot completely negate the
possibility of future estate residential development,’” and that “‘[e]xperience
tells us that quite often a golf course project of this nature acts as a
catalyst which triggers requests for residential development.’” (Id. at p. 153.)
The Court
of Appeal rejected the project proponent’s argument that an EIR was unnecessary because
growth-inducing impacts are too remote and speculative, explaining: “‘[T]he fact that future development may take
several forms,’ or that it may never occur, ‘does not excuse environmental
review’ of the project which is the catalyst for the projected future
growth. [Citation.] The record here clearly contains substantial
evidence supporting a fair argument the proposed country club may induce
housing development in the surrounding area.
The fact that the exact extent and location of such growth cannot now be
determined does not excuse the County from preparation of an EIR. . . . [R]eview of the likely environmental effects
of the proposed country club cannot be postponed until such effects have
already manifested themselves through requests for amendment of the general
plan and applications for approval of housing developments.” (Stanislaus Audubon Society, Inc. v.
County of Stanislaus, supra, 33
Cal.App.4th at pp. 158-159.)
e. Cumulative Impacts to Agriculture
The Farm
Bureau contends the PEIS/R’s discussion of the Program’s cumulative impacts to
agriculture is inadequate. According to
the Farm Bureau, the cumulative impacts analysis failed to include
pre-implementation projects undertaken by CALFED agencies and failed to
consider present and future projects outside the Program area that will
contribute to agricultural conversion.
The Farm Bureau further argues the projects that were considered in the
PEIS/R did not involve agricultural impacts.
An EIR must discuss the cumulative impacts
of a project when those impacts are cumulatively considerable. (Guidelines, § 15130, subd. (a).) “‘Cumulative impacts’ refer to two or more
individual effects which, when considered together, are considerable or which
compound or increase other environmental impacts.” (Guidelines, § 15355.) “[T]he incremental effects of an individual
project are considerable when viewed in connection with the effects of past
projects, the effects of other current projects, and the effects of probable
future projects.” (Pub. Resources Code,
§ 21083, subd. (b)(2).)
A
cumulative impact analysis that understates the severity and significance of
such impacts impedes meaningful public discussion of the project and skews the
decision-maker’s perspective of the project’s environmental consequences,
alternatives, mitigation measures, and, ultimately, the appropriateness of project
approval. (Citizens to Preserve the
Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431.)
In Los
Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th
1019, the EIR for a 1.5 square mile construction project did not include an analysis
of additional traffic noise and air pollution on two local schools. The EIR indicated “additional traffic noise
near the schools would be ‘insignificant’ and additional air pollution would
occur throughout the project area despite any feasible mitigation
measures.” (Id. at p. 1023.) The Court of Appeal concluded this analysis
violated the requirement that the EIR discuss cumulative impacts. The court explained: “[T]he relevant issue to be addressed in the EIR on the plan is not the relative amount
of traffic noise resulting from the project when compared to existing traffic
noise, but whether any additional amount of traffic noise should be considered
significant in light of the serious nature of the traffic noise problem already
existing around the schools.” (Id.
at p. 1025.)
In Whitman
v. Board of Supervisors (1979) 88 Cal.App.3d 397, the Court of Appeal
concluded an EIR for an exploratory oil and gas well contained an insufficient analysis
of cumulative impacts. (Id. at
pp. 404-405.) The EIR stated: “‘The cumulative impact [sic]
associated with this project and the two other projects in the area which are
pending or have been approved and not constructed include increased traffic on
State Route 150 and a minor increase in air emissions.’” (Id. at p. 406.) While the EIR mentioned only two other related
projects, the record revealed “a great deal more drilling” in the project
area. (Id. at p. 409.) The court also found the EIR’s statement about increased traffic
and a minor increase in air emissions inadequate, explaining: “The use of phrases such as ‘increased
traffic’ and ‘minor increase in air emissions,’ without further definition and
explanation, provides neither the responsible agency nor the public with the
type of information called for under CEQA.”
(Id. at p. 411.)
In the
present matter, section 3.5 of the PEIS/R, entitled “Summary of Cumulative
Impacts,” states: “The [PEIS/R] focuses
on a general overview of cumulative impacts and associated mitigation
strategies. As a programmatic
planning-level document, the [PEIS/R] does not analyze site-specific impacts of
future projects at proposed locations.
The impact analysis document therefore cannot predict with certainty
which impacts will occur and what site-specific mitigation measures will be
imposed. Similarly, a detailed analysis
of the Program’s contributions to cumulative impacts and the methods to
mitigate those cumulative impacts cannot be analyzed with certainty at the
programmatic level. Based on the type of
information considered at the programmatic level, this document identifies
those cumulative impacts to which Program actions likely will contribute. The document also includes mitigation
strategies that, when applied to an individual project, will serve to avoid,
reduce, or mitigate the project’s contribution to cumulative impacts.”
This is
followed by a brief discussion of cumulative impacts in the various regions
within the Program area. Essentially,
these entries indicate the preferred program alternative could have significant
cumulative impacts to all resource types, including agriculture, “when added to
the development of water management projects, environmental restoration
projects, and urbanization listed in Attachment A.”
Attachment A lists 18 projects that
may contribute to cumulative impacts.
These projects are: (1) “American
River Water Resource Investigation”; (2) “American River Watershed Project”;
(3) “CVPIA”; (4) “CCWD Multi-Purpose Pipeline Project”; (5) “Delta Wetlands
Project”; (6) “Hamilton City Pumping Plant Fish Screen Improvement Project”;
(7) “Interim South Delta Plan”; (8) “Montezuma Wetlands Project”; (9) “Pardee
Reservoir Enlargement Project”; (10) “Red Bluff Diversion Dam Fish Passage
Program”; (11) Sacramento River Flood Control System Evaluation (partial)”;
(12) “Sacramento Water Forum Process”; (13) “Trinity River Restoration
Program”; (14) “[East Bay Municipal Utility District] Supplemental Water Supply Project”; (15) Sacramento County M&I
Water Supply Contracts”; (16) “Urbanization (future population growth is
included in modeling assumptions for the Preferred Program Alternative)”; (17)
“West Delta Water Management Program”; and (18) “Sacramento River Conservation
Area Program.”
This list is followed by a brief description of each
project. For example, the Montezuma
Wetlands Project is described as follows:
“This project calls for constructing facilities to receive up to 20
million cubic yards of approved dredged materials from ports and navigation
channels in the San Francisco Bay Estuary and to distribute the materials over
a 2,394-acre diked bayland site near Collinsville in Solano County, adjacent to
Suisun Marsh. After filling the subsided
baylands, the levees would be breached to enable tides and ebb to flow over the
constructed foundation of tidal channels and low marsh plains. The marsh design includes high marsh and
marsh ponds that would seldom be reached by tides. [¶]
The project would restore 1,822 acres of tidal wetlands on the bayland
site. Project construction is proposed
to be in four phases to minimize temporary losses of wetlands during
construction and to facilitate engineered placement of the dredged
materials. Each completed phase would be
hydrologically independent, with a single connection to Montezuma Slough or the
Sacramento River.”
Cumulative
impacts specific to agriculture are discussed in chapter 7. Section 7.1.10 discusses the long-term trend
in conversion of agricultural land in the Program area, primarily to urban
uses, and sections 7.2.10 and 7.5.10 discuss cumulative impacts to agricultural
economics.
Even given
the above, the Farm Bureau contends there is no evidence that CALFED considered
the pre-implementation projects that already have converted more than 29,000
acres of agricultural land to other uses.
The Farm Bureau identifies 22 projects that were approved by CALFED
before completion of the PEIS/R. Some
examples are “Liberty Island Acquisition–-acquisition and conversion of
4,760 acres of agricultural land in fee”; “Stone Lakes National Wildlife
Refuge Land Acquisition--acquisition and conversion of 658 acres of
agricultural land in fee”; “Lower San Joaquin River Floodplain Protection
and Restoration Project--acquisition and conversion of 600 acres of
agricultural land in fee and 1,950 acres via easement”; and “Oakdale and
South San Joaquin Irrigation Districts--conversion of 50,000 acre-feet of
agricultural water.”
The State
counters that the PEIS/R considered these early implementation projects as part
of the Ecosystem Restoration Program as a whole and, therefore, the cumulative
impacts of those projects were included in the discussion of the Program’s
impacts on agriculture. This argument is
supported by the record. The PEIS/R
states the Bay-Delta Accord “included a commitment by the agency and
stakeholder signatories to develop and fund non-flow-related ecosystem
restoration actions to improve the health of the Bay-Delta ecosystem. This commitment is commonly referred to as ‘Category
III.’”
The PEIS/R explains that “[t]he Category III actions were required to be
consistent with any alternative configuration and provide early implementation
benefits.” The PEIS/R continues: “To date, CALFED’s Ecosystem Restoration
Program has received more than 800 proposals and has funded 272
projects . . . .”
According to the PEIS/R, “[a]s the long-term Program developed, the
priorities and project selection processes were revised to ensure that
expenditures were consistent with the overall direction of the Program and
efficiently targeted ecosystem restoration through adaptive management.”
The PEIS/R
further explains that, to the extent category III projects result in the conversion
of agricultural resources to habitat, this conversion will be factored into the
overall Ecosystem Restoration Program goals.
The PEIS/R states: “The Ecosystem
Restoration Program would coordinate and assist in restoration activities
currently under way and future activities outside the Ecosystem Restoration
Program that could lead to the habitat restoration goals identified in the
program. For example, actions under the
[CVPIA] and the Central Valley Habitat Joint Venture are designed to protect
and restore significant areas of land in the Central Valley. To the extent that these activities and programs
establish habitat that is also proposed in the Ecosystem Restoration Program,
the amount of land needed to achieve the Ecosystem Restoration Program goals
would be reduced.”
In the
responses to comments, the PEIS/R states:
Category III projects “funded to date include land acquisition, either
in fee or using a conservation easement.
Only a small portion of the lands acquired have been converted away from
agricultural use. In most instances,
agricultural practices have continued on the acquired lands.” Elsewhere the responses state: “To date, CALFED has funded more than $200
million for early implementation of ecosystem restoration projects through its
Category III grant program . . . . All ecosystem restoration projects approved
for early implementation have been consistent with the objectives of the
Ecosystem Restoration Plan. Thus, the
land uses in these ecosystem projects are included in the land conversion
estimates provided for the Ecosystem Restoration
Plan . . . .”
The Farm
Bureau next contends the PEIS/R failed to consider 20 projects occurring
outside the CALFED Program area that will convert substantial agricultural
resources. Those projects include: “The Consumnes Preserve partners’ land and
water acquisitions”; “The Suisun Marsh and San Pablo Bay land acquisitions
(outside the CALFED Program)”; “The U.S. Department of Agriculture land
acquisition programs”; “New Endangered Species Act listings (state and federal)
that will require additional in-stream flow prescriptions or purchases ([f]or
example, Northern Coho, Splittail and Sturgeon)”; “Retirement of salt impaired
lands in the San Joaquin Valley”; and “Trinity River required minimum
flows.”
The State
argues the Farm Bureau has waived this argument by failing to identify the 20
projects with particularity and by failing to explain “why each item qualifies
as a past, present, or probable future project that contributes to cumulative
impacts at a programmatic level. But,
the Farm Bureau says, its argument regarding the 20 projects “is
straight-forward [sic] and requires no additional
elaboration . . . .”
We agree
with the State that the Farm Bureau cannot simply provide vague references to
purported projects without some explanation as to why they should have been
included in the cumulative impacts analysis.
For example, it is unclear what the Farm Bureau means by its reference
to “Open Space Districts that purchase agricultural land and convert it to
habitat or parks.” This does not appear
to be a project, and there is no indication of where this activity is
occurring, if at all. Moreover, the
PEIS/R states that between 1993 and 1995, some 71,000 acres of agricultural
land were converted to habitat and other open space uses statewide and that new
agricultural land was created to mitigate these losses to some degree. There is no reason to believe such mitigation
would not occur in the future as well.
The Farm Bureau also refers to the “[r]etirement of salt impaired lands
in the San Joaquin Valley.” Again, this
does not appear to be a reference to a specific project and there is no
indication this activity will actually take place or will impact agricultural
resources. Thus, whether viewed as a
matter of waiver or simply a failure to provide a complete argument, the Farm
Bureau’s references to purported projects, without further explanation, is
insufficient to place the PEIS/R’s cumulative impacts analysis in
question.
The Farm
Bureau lastly contends the projects that were considered by CALFED in its
cumulative impacts analysis did not involve impacts to agriculture. The State disagrees and says that CALFED
undertook a systematic approach to identifying projects that may have
cumulative impacts. According to the
State: “The whole purpose behind the
CALFED plan’s ecosystem restoration element was to coordinate existing and
planned local, state, and federal restoration actions to achieve the plan’s
ecosystem quality objective.”
Whether the
State undertook a systematic approach to identifying past, present, or future
projects with cumulative impacts and whether the overall CALFED purpose was to
coordinate projects, the question remains whether the PEIS/R adequately
identified the cumulative impacts of the Program.
Regarding
agricultural resources, the PEIS/R states: “A long-term trend in the Program study area
has been conversion of agricultural lands to other, primarily urban, uses. As an example, between 1994 and 1996, the
five Delta counties lost 12,288 acres of prime, statewide important, and unique
agricultural lands. Most of this loss
occurred as a result of urbanization of farmland in and near cities in the
five-county area. During this same
2-year period, 14,689 acres of agricultural lands in those five counties were
committed, largely through the planning process, to future urbanization and
nonagricultural uses. Statewide, between
1994 and 1996, over 55,000 acres of agricultural lands in these categories
. . . have been converted, mostly to urban uses. Between 1993 and 1995, some 71,000 acres of
Williamson Act-contracted lands were converted to public improve-ments [sic]
statewide, of which about half were for habitat and other public open space
uses. . . . Urbanization
of farmland in the Central Valley and foothill areas is expected to continue
into the foreseeable future. Population
projections for 2020 show California’s population at 47.5 million, a
substantial increase over the 1995 level of 32.1 million.”
The PEIS/R
continues: “Other water-related
initiatives that are not part of the Program, such as the CVPIA, have reduced
water availability to agriculture, potentially idling cropland or forcing a
change to lower value crops . . . . Wildlife habitat projects outside or only
partially within the Program, including the Yolo Basin Wildlife Area, the Stone
Lakes [National Wildlife Refuge], and the proposed North Delta [National
Wildlife Refuge], potentially could convert up to 51,000 additional acres of
prime, statewide important, or unique farmland from agricultural production to
habitat.”
In addition
to the foregoing, section 7.1.10 states that “[f]or agricultural land and water
use, the analysis and conclusions regarding the significance of the Preferred
Program Alternative’s contribution to cumulative impacts are essentially the
same as the analysis and conclusions regarding the Preferred Program
Alternative’s long-term impacts. This is
partially due to the long-term nature of the Program and the wide range of
actions that falls [sic] within the scope of the Program’s potential
future actions.” Section 7.1.7 discusses
long-term impacts of the Program and is 10 pages long. Sections 7.2.10 and 7.5.10 discuss cumulative
impacts to agricultural economics.
It is
readily apparent the PEIS/R’s cumulative impacts analysis did take into
consideration impacts to agriculture.
The Farm Bureau nevertheless argues the list of projects with cumulative
impacts (appen. A of the PEIS/R) does not include projects with agricultural
impacts but instead only “projects that impact habitat.”
We cannot
agree. Several of the listed projects
will affect agriculture. For example,
the objectives of the Interim South Delta Program include “improv[ing] water
levels and circulation in south Delta channels for local agricultural diversions . . . .” The Sacramento River Flood Control System
Evaluation is intended to test the flood protection system along the Sacramento
River and the lower reaches of some tributaries for the benefit of adjacent
lands. The West Delta Water Management
Program involves a 1981 agreement “to ensure that the State will maintain a
water supply that is dependable and of adequate quality for agricultural
uses . . . .”
According to the PEIS/R, “[s]ince the agreement was signed, an unstable
agricultural economy, continuing problems with subsidence, levee instability,
and loss of wetland and riparian habitats have necessitated a more
comprehensive planning approach.”
Furthermore, the Farm Bureau
misunderstands the purpose of the project list.
Projects undertaken for the purpose of improving habitat or other
conditions for fish and wildlife may have a direct impact on agriculture. For example, the Montezuma Wetlands Project
is intended to restore 1,822 acres of tidal wetlands. This could have the effect of eliminating
farmland. The Red Bluff Diversion Dam
Fish Passage Program includes evaluation of long-term solutions to fish passage
issues. According to the PEIS/R,
“[o]peration of the Red Bluff Diversion Dam under the [National Marine
Fisheries Service] biological opinion has substantially reduced, but not
eliminated, fish passage problems and has created water delivery problems
during planting and harvest seasons.”
The study is intended to find ways to improve this condition, thereby
potentially improving water delivery for agriculture. Inclusion of projects on the list merely sets
the stage for the cumulative impacts analysis, much like a discussion of the
many drilling operations in the project area would have done in Whitman v.
Board of Supervisors, supra, 88 Cal.App.3d 397.
In
addition, under the category of urbanization, the PEIS/R states: “Urbanization is expected to result in
significant conversion of agricultural lands throughout the state and in
Program study areas. According to the
October 1995 American Farmland Trust Summary, the population is expected to
triple in California’s Central Valley between now and 2040, putting tremendous
pressure on agricultural land and public services. If more compact and efficient placement of
growth occurred, about 474,000 acres of farmland would be converted. The report concluded that low-density urban
sprawl could consume more than 1 million acres of farmland by 2040. A 1992 study by the Association of Bay Area
Governments that projected land use patterns based on population growth, found
that an addition of 331,530 acres of urbanized land would be required (a 37%
increase by 2005) if full development in the 12-county Bay-Delta Region
occurred, including affecting 39,511 acres of mostly farmed wetlands in the
Delta.”
By its very
nature as a programmatic document, the PEIS/R addresses cumulative impacts of a
program that will stretch over the next 30 years. In the PEIS/R, CALFED has attempted to
identify related projects and activities that are not included in the Program
and to consider cumulative impacts of those projects with those anticipated
within the Program. “‘An EIR should be prepared with a
sufficient degree of analysis to provide decision makers with information which
enables them to make a decision which intelligently takes account of
environmental consequences. An
evaluation of the environmental effects of a proposed project need not be
exhaustive, but the sufficiency of an EIR is to be reviewed in the light of
what is reasonably feasible. . . .
The courts have looked not for perfection but for adequacy,
completeness, and a good faith effort at full disclosure.’” (City of Lomita v. City of Torrance, supra, 148 Cal.App.3d at p. 1068.) The PEIS/R satisfies this good faith
disclosure obligation. Having so
concluded, we have no occasion to consider the funding for the projects
identified by the Farm Bureau and therefore deny the Farm Bureau’s request for
judicial notice of a federal-state cost sharing agreement.
C. The PEIS/R Analysis of the Source of
Program Water
The Farm
Bureau contends the PEIS/R describes a program that will require nearly 1
million acre-feet of water (400,000 acre-feet for the Ecosystem Restoration
Program and 580,000 acre-feet for the EWA in the first year alone) while
improperly deferring identification of the source until some undetermined date
in the future. The State says that a
programmatic EIR, because of its inherent generality, need not be specific about the
source of Program water. According to
the State, it is sufficient that a programmatic EIR identify potential sources
of water and then leave the ultimate determination for disclosure in
project-level environmental documents.
An EIR must contain an accurate and
complete description of the proposed project.
“Only through an accurate view of the project may affected outsiders and
public decision-makers balance the proposal’s benefit against its environmental
cost, consider mitigation measures, assess the advantage of terminating the
proposal . . . and weigh other alternatives in the balance. An accurate, stable and finite project
description is the sine qua non of an
informative and legally sufficient EIR.”
(County of Inyo v. City of Los
Angeles (1977) 71 Cal.App.3d 185, 192-193.)
Even if new
storage and conveyance facilities are constructed, this will not produce new
water for many years. The ROD
states: “Actions initiated in the first
four years of Stage 1 to improve storage and conveyance capacity
. . . will substantially increase water supply reliability in the
later years, but these benefits will not be realized until the new facilities
come on line.” The ROD states that
CALFED Agencies must identify and purchase water for the various CALFED
projects.
“CEQA
contemplates consideration of environmental consequences at the ‘“earliest
possible stage, even though more detailed environmental review may be necessary
later.”’” (Rio Vista Farm Bureau
Center v. County of Solano (1992) 5 Cal.App.4th 351, 370 (hereafter Rio
Vista).) “Choosing the precise time for CEQA
compliance involves a balancing of competing factors. EIR’s and negative declarations should
be prepared as early as feasible in the planning process to enable
environmental considerations to influence project program and design and yet
late enough to provide meaningful information for environmental
assessment.” (Guidelines, § 15004, subd.
(b).) “Where a lead agency is using the
tiering process in connection with an EIR for a large-scale planning
approval, such as a general plan or component thereof . . . , the
development of detailed, site-specific information may not be feasible but can
be deferred, in many instances, until such time as the lead agency prepares a
future environmental document in connection with a project of a more limited
geographic scale, as long as deferral does not prevent adequate identification
of significant effects of the planning approval at hand.” (Guidelines, § 15152, subd. (c).)
In Al
Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18
Cal.App.4th 729 (hereafter Al Larson Boat Shop), the Court of Appeal
concluded an EIR that deferred environmental analysis of specific projects within a
master plan amendment until project level EIR’s did not violate CEQA. In that case, the Harbor Commissioners
prepared a first-tier EIR for an amendment to a port master plan. The amendment and EIR described six anticipated projects
to increase cargo-handling capacity over the following five years. (Id. at pp. 736-737, 742.)
The court
found no abuse of discretion “in the Board’s decision to tailor [the amendment]
and the [final program EIR] to a consideration of alternatives to the overall
five-year plan, which included the six ‘anticipated projects,’ while reserving
without limitation the approval of each ‘anticipated’ project and its location
to the project EIR.” (Al Larson Boat
Shop, supra, 18 Cal.App.4th at p.
744.) The court explained: “The concept of tiering supports allowing the
agency and the public to first decide whether it is a good idea to increase
Port capacity in a given five-year period at all, or by means of the six
‘anticipated projects.’ If that decision
is made in the affirmative then each individual project can be reviewed
in-depth on its merits in a project EIR with no weight claimed for any
supposed ‘approval’ of the individual project or ‘planning’ of its
location. On the other hand, if the
agency rejects the overall goal then further consideration of the six
‘anticipated’ projects can be dropped.”
(Ibid.)
In No
Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223 (hereafter No
Oil), Occidental Petroleum Corporation sought approval of the following
project: “‘The drilling of two exploration
wells on an approximate 1/2-acre portion of a 2-acre site at one of the
following locations: [¶] 15147 Pacific
Coast Highway or [¶] 146 Entrada Drive;
[¶] The establishment of three
oil drilling districts comprising a total of 594 acres; [¶]
The development of a permanent drilling and production facility on
approximately 2 acres at one of the above locations. [¶]
The permanent drilling and production site would contain a single
155-foot oil derrick and up to 60 oil and natural gas wells to tap pools
estimated at 10,000 feet below the earth’s surface. Occidental estimates that the pools contain
between 25 and 60 million barrels of oil and between 50 and 120 billion cubic
feet of natural gas. [¶] The derrick will be mobile, mounted on a
track to allow placement of the structure over each of the drilling locations
(wells), located in a subsurface well cellar.’
(Italics omitted.)” (Id.
at p. 230, fn. omitted.)
The city
adopted three ordinances to permit the project to go forward. (No Oil, supra, 196 Cal.App.3d at p.
231.) However, the trial court issued a
writ of mandate commanding the city to set aside the ordinances. The court concluded, among other things, that
since the project contemplated only four possible oil pipeline routes for delivery
of any oil obtained in the project, “the EIR should have contained a detailed
description of the environmental effects of each route.” (Id. at p. 232.)
The Court
of Appeal reversed. The appellate court
indicated the pipeline was a single facet of a larger project and that, “while
the EIR had to contain a discussion of the
pipeline’s environmental effects, there was no need to discuss every potential
route the pipeline may take.” (No
Oil, supra, 196 Cal.App.3d at p. 235.)
The court explained that “information presented to the planning and
environment committee of City Council, which became part of the administrative
record, indicates that until the quantity and quality of the oil extracted
during the exploration phase is analyzed, Occidental will not know whether it
is financially desirable to proceed with the project, where the oil will be
transported, or the specifications of the pipeline to be constructed. Until the oil is analyzed, any in-depth
discussion of the proposed pipeline would be mere speculation.” (Id. at p. 237.) The court concluded: “[T]he EIR in the case at bench properly
deferred an in-depth consideration of the environmental effects of each
proposed pipeline route until such time as a marketable amount of oil is
verified to exist and an application for approval of a pipeline is presented to
the board of transportation. [¶] Upon our review of the EIR, CEQA, its Guidelines and the
applicable cases, we conclude that the EIR adequately informed City Council of
the environmental risks associated with the entire project including the
pipeline. A detailed environmental
analysis of each potential route the pipeline might take was not necessary at
this stage.” (Id. at pp.
237-238.)
In Rio
Vista, supra, 5 Cal.App.4th 351, an EIR associated with a county waste
management plan was determined to be adequate.
The plan analyzed existing facilities, determined the need for
additional facilities and identified siting criteria and potentially suitable
sites to accommodate projected needs. However, it did not recommend any specific
sites for hazardous waste disposal facilities.
(Id. at pp. 363-364.) The
Plan was intended as “an initial or primary working document to be updated and
reviewed periodically.” (Id. at
p. 363.) Nevertheless, the EIR recognized that “the plan could
allow certain projects to proceed, which could have adverse impacts, such as
potential future hazardous waste facilities, upon a finding of consistency with
the Plan.” (Id. at p. 366.)
The
petitioners challenged the EIR for failing to describe potential future projects and
facilities. The Court of Appeal rejected
this challenge, explaining: “The flaw in
appellant’s argument is that the Plan makes no commitment to future facilities
other than furnishing siting criteria and designating generally acceptable
locations. While the Plan suggests that
new facilities may be needed by the County, no siting decisions are made; the
Plan does not even determine that future facilities will ever be built. Both the Plan and the [final program EIR] consistently state that no actual
future sites have been recommended or proposed.” (Rio Vista, supra, 5 Cal.App.4th at p.
371.) The court continued: “The Plan does not propose a single project
divided into parts; it merely serves as a hazardous waste management assessment
and overview, with any separate future projects, when identified, to be
accompanied by additional EIR’s.” (Id. at
p. 372.)
Although
each of these cases upheld an EIR that deferred evaluation of specific aspects of a
plan, including specific projects contemplated by the plan, they nevertheless
suggest that an EIR must evaluate the impacts of the deferred activities to the
extent the overall plan commits to a particular course of action. In Al Larson Boat Shop, the EIR considered “alternatives to the
overall five-year plan, which included the six ‘anticipated projects,’ while
reserving . . . the approval of each ‘anticipated’ project and its
location to the project EIR.” (Al Larson Boat
Shop, supra, 18 Cal.App.4th at p. 744.) In other words, as we have noted, the EIR examined whether it was a good idea
to increase port capacity over the next five years by means of the six
projects. Later EIR’s would examine the specifics of
the individual projects.
The court in
No Oil concluded the EIR was not required to examine each of the four
potential pipeline routes, but it was required to “contain some discussion of
the pipeline’s effects.” (No Oil,
supra, 196 Cal.App.3d at p. 233.)
The draft EIR had “discussed the pipeline in terms of construction noise,
risk of upset, mitigation measures, and impact on traffic and aesthetics.” (Id. at p. 234.) The final EIR “set forth a description of each
route’s destination, the uses of the land that the pipeline would cross, the schools
located along the route, the public entities from which a permit would be
required, and the pipeline construction’s effect on traffic.” (Ibid.) It also discussed “concerns regarding the
rate at which the pipeline could be constructed, the risk of polluting the City
of Santa
Monica’s . . . water supply, dust and vehicle emissions caused by
pipeline construction, and the risk of spills, fires and explosions.” (Ibid., fns. omitted.)
In Rio
Vista, the court concluded the EIR was not required to discuss
specific waste disposal facilities because the plan under review did not commit
to construction of any such facilities.
However, the EIR did discuss the potential impacts of waste facilities in
general and the difficulty of mitigating such impacts. (Rio Vista, supra, 5
Cal.App.4th at pp. 365-367.) It also
said the plan may have environmental impacts through the approval of facilities
that are consistent with the plan. (Id.
at p. 366.)
The State
argues a first-tier EIR for a program such as that presented here need only
recognize that water must be supplied for the project and identify possible
sources of that water. The State asserts
the PEIS/R described the potential sources of water “in detail” as well as the
impacts of relying on those sources. The
State argues CEQA requires nothing more.
We are not
persuaded. The State does not cite where
in the PEIS/R or elsewhere the environmental documents describe the potential
sources of water “in detail.” The State
asserts that pages C-022964 and C-022966-022967 of the administrative record
identify the source of water for the Ecosystem Restoration Program as “willing
sellers along the pertinent rivers and new storage.” The PEIS/R states at page C-022964 that
“surface water acquisitions through the Ecosystem Restoration Program could reallocate supplies from
willing sellers to in-stream uses.” At
pages C-022966 and 022967, the PEIS/R contains tables showing estimated water
acquisitions from willing sellers along various rivers in the Program area to
meet Ecosystem Restoration Program needs.
One table shows such acquisitions with new storage and one without new
storage. The PEIS/R states: “When new Sacramento River and San Joaquin
River Regions surface storage is included in the Preferred Program Alternative,
fewer water acquisitions are required to meet Ecosystem Restoration Program
flow targets. New storage also could be
operated to provide Ecosystem Restoration Program flows for other tributaries
by exchange agreements.”
The PEIS/R does not provide any
basis for the estimates of water that will be made available from willing
sellers along the various rivers. On the
contrary, a response to comments states that “[t]he amount and source of water
that will be transferred by willing sellers is not currently
quantifiable.” Nor does the PEIS/R
identify what new storage is contemplated.
In responses to comments, the PEIS/R states: “CALFED’s Preferred Program Alternative
includes a groundwater and surface water storage component with potential facility
locations in the Sacramento and San Joaquin Valleys and in the Delta. New groundwater storage and conjunctive use
projects will be implemented under the principle of local management and
control. Surface water storage options
include development of new off-stream storage reservoirs or expansion of
existing storage reservoirs. Development
of new on-stream surface water storage reservoirs is not proposed.”
In phase II of the CALFED review
process, 52 potential storage locations were evaluated. The list was later reduced to 12. At present, the Program proposes 0 to 6
million acre-feet of new storage at one or more undetermined locations. The PEIS/R states: “Considering the magnitude of conflicts over
available water in California, CALFED believes it must continue to evaluate and
implement a broad range of water management options to achieve the Program’s
objectives. Therefore, new storage will
be developed and constructed, together with aggressive implementation of water
conservation, recycling, and a protective water transfer market, as appropriate
to meet CALFED Program goals. Future
site-specific evaluations, the environmental review process, and permit
applications will be coordinated under CALFED’s Integrated Storage
Investigation.”
Regarding
the impacts of potential water sources, the State cites the PEIS/R’s discussion
of impacts anticipated from the common components of the Program. The PEIS/R states that “[p]otentially
significant and unavoidable adverse impacts on existing land uses could result
from land conversions associated with new or expanded surface water
storage. Specific land use impacts would
depend on the location of any new storage facilities.” Elsewhere it states: “Storage facilities could result in
conversion of agricultural land in the foothill or mountain areas in the
Sacramento River Region, a potentially significant and unavoidable adverse
impact.” A response to comments states
that, “[i]n some localized areas, water transfers could result in fallowing or
different crops, if a grower chooses to market his or her water rather than
grow other crops.”
These
portions of the PEIS/R do not address impacts of the various water
sources. Because the water sources are
uncertain, the impacts are uncertain. “A
project description that omits integral components of the project may result in
an EIR that fails to disclose the actual
impacts of the project.” (Dry Creek
Citizens Coalition v. County of Tulare, supra,
70 Cal.App.4th at p. 26.) In Santiago
County Water Dist., supra, 118
Cal.App.3d 818, an EIR for the operation of a sand and gravel mine contained no
information on the source of water needed for the mine or the environmental
effects of supplying such water. The
county nevertheless approved the project on the condition that “‘[p]rior to
commencement of mining operations or the issuance of a sand and gravel
extraction permit, the operator shall establish an adequate water supply and
appurtenant system to supply the water needs of the mining operation,
processing plant and reclamation irrigation.’”
(Id. at p. 828.)
The Court
of Appeal reversed, concluding information about the water supply for the
project was lacking in two ways. First,
the EIR stated the local water district had
no facilities in the area and additional pumping and storage may need to be
installed. Instead of specifying the
equipment needed, the EIR indicated “‘[t]he developer will furnish the District with
detailed plans of works.’” (Santiago
County Water Dist., supra, 118
Cal.App.3d at p. 829.) The Court
of Appeal concluded this was not enough: “The construction of additional water
delivery facilities is undoubtedly one of the significant environmental effects
of the project. As such, a description
of the necessary construction had to be included if the EIR was to serve its informational
purpose. [Citations.] Because of this omission, some important
ramifications of the proposed project remained hidden from view at the time the
project was being discussed and approved.”
(Id. at pp. 829-830, fn. omitted.)
As to the
water supply, the EIR disclosed that a large amount of water would be consumed by
the mine and that the local water district “‘has indicated their ability to
supply the water.’” (Santiago County
Water Dist., supra, 118
Cal.App.3d at p. 830.) The Court of
Appeal concluded this, too, was inadequate.
First, the record did not support the assertion that the water district
had assured a supply of water. (Id.
at pp. 830-831.) Second, the assertion
was insufficient to fulfill the EIR’s informational purpose. According to the court: “The EIR must contain facts and analysis,
not just the bare conclusions of a public agency. An agency’s opinion concerning matters within
its expertise is of obvious value, but the public and decision-makers, for whom
the EIR is prepared, should also have
before them the basis for that opinion so as to enable them to make an
independent, reasoned judgment.” (Id.
at p. 831.)
The court
also concluded the EIR was deficient in failing to discuss the effects of water
delivery to the mine “on water service elsewhere in the Water District’s
jurisdiction.” (Santiago County Water
Dist., supra, 118 Cal.App.3d at
p. 831.) According to the court,
“[t]he conclusion that one of the unavoidable adverse impacts of the project
will be the ‘[i]ncreased demand upon water available from the Santiago County
Water District’ is only stating the obvious.
What is needed is some information about how adverse the adverse impact
will be.” (Ibid.)
In Stanislaus
Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182
(hereafter Stanislaus Natural Heritage Project), the public agency
approved an EIR for the construction of a 25-year, 29,500-acre, 5,000-unit resort and
residential community without an on-site water source. (Id. at pp. 188-189.) The EIR indicated the project’s water
supply “‘will involve any one of a number of the following: offsite groundwater, water purchases and
exchanges, participation in water conservation projects with other water districts
in exchange for water saved; utilization of wastewater effluent, both onsite
and acquired offsite; development of groundwater storage facilities in Madera
County; utilization of the California Aqueduct and Delta-Mendota Canal for
exchange deliveries; and playing an active role in the existing trading network
among California water districts south of the Delta.’” (Id. at p. 194.)
The Court
of Appeal concluded the EIR was inadequate. The
project in question “called for over 18,700 acres of open space, 5,000
residential units of various sizes and types clustered in 5 villages, a hotel
and conference center, 6 golf courses, a swim and tennis club, a winery and
vineyard, a research campus and certain supporting facilities. It envisioned
that development would occur in four overlapping phases over twenty-five
years. Phase 1 was to be completed in
year 15. Phase 2 would begin in year
five and end in year fifteen. Phase 3
would begin in year 10 and end in year 20.
Phase 4 would begin in year 15 and end in year 25.” (Stanislaus Natural Heritage Project,
supra, 48 Cal.App.4th at p.
188.) The EIR indicated the completed project
would require 13,000 acre-feet of water per year and acknowledged the site of
the project did not contain enough water.
(Id. at pp. 189, 194.) The
EIR “stated that ‘because adequate
water supplies for the project at full buildout have not been secured,
provision of those supplies could result in potentially significant impacts’
and that ‘[a]dditional environmental review of further water acquisition
projects will be required as part of the water acquisition process or as part
of further detailed project-level review for future phases of
development.’” (Id. at p.
195.)
The Court
of Appeal concluded the EIR violated the fundamental information purpose of CEQA. (Stanislaus Natural Heritage Project,
supra, 48 Cal.App.4th at p. 195.) The court rejected the developer’s argument
that less detail was justified by the programmatic nature of the EIR:
“[A] decision to ‘tier’ environmental review does not excuse a
governmental entity from complying with CEQA’s mandate to prepare, or cause to
be prepared, an [EIR] on any project that may have a significant effect on the
environment . . . .”
(Id. at p. 197.) The court
continued: “‘[T]iering is not a device
for deferring the identification of significant environmental impacts that the
adoption of a specific plan can be expected to cause. The County in this case could not make an
informed decision on whether to adopt the Diablo Grande Specific Plan without
being informed, to some reasonable degree, of the environmental consequences of
supplying water to a 5,000-residential-unit development which has no on-site
water source. Indeed, the environmental consequences
of supplying water to this project would appear to be one of the most
fundamental and general ‘general matters’ to be addressed in a first-tier EIR.”
(Id. at p. 199, fn. omitted.)
The State
argues Santiago County Water District and Stanislaus Natural Heritage
Project are inapposite because both involved project-level EIR’s.
This is not true as to Stanislaus Natural Heritage Project and,
at any rate, is a distinction without a difference. The question is not whether environmental
analysis must be included in a programmatic rather than a project EIR but whether analysis may be
deferred to a later time. In both Santiago
County Water District and Stanislaus Natural Heritage Project, the
issue was whether the EIR could defer CEQA analysis of the need to provide water to
the project.
In light of
the overarching importance of water to the success of the CALFED Program,
merely listing potential sources of water, indicating that the ultimate
source determination will be made later, and deferring CEQA analysis of the
need to provide water to the Program violates the PEIS/R’s basic informational
purpose. “Water is too important to
receive such cursory treatment.” (Santa Clarita Organization for Planning the
Environment v. County of Los Angeles, supra, 106 Cal.App.4th at p.
723.)
The PEIS/R
says potential water sources will be willing sellers, conservation efforts and
new or enlarged water storage. The exact
mix cannot yet be determined. However,
the PEIS/R acknowledges that willing sellers and conservation efforts will not
likely be enough to supply all the water needed by the Program and, therefore,
forced appropriation of water from current users or expanded water storage will
be necessary. Forced appropriation of
water may mean, as the Farm Bureau argues, that even more farmland will be
retired, with the attendant impacts on agricultural production.
And, given
today’s climate of antipathy toward massive water storage projects and recent
efforts to decommission existing dams and reservoirs, any attempt to expand
water storage by the use of dams or reservoirs will likely meet with stiff
resistance. As one commentator put
it: “Probably no single form of water
development has as much impact on environmental quality and recreation as
dams. Dams eliminate productive bottom
lands which are essential to wildlife (and in many areas essential to
farmers as well). Loss of winter range
for big game has been a major problem of impoundments throughout the West.
. . . [¶] For migratory fish such as steelhead trout
and salmon, dams are formidable barriers to up-stream spawning migrations.
. . . [¶] In addition, conditions below an impoundment
change as a result of new temperature and flow regimes. . . .” (Erman et al., Competition for California
Water: Alternative Resolutions (U. Cal.
Press 1982) Environmental Quality and
Recreation, at p. 103, fns. omitted.)
The PEIS/R attempts to forestall the inevitable battle over water
allocation and storage, and the effects of such on the environment, by leaving
the source of Program water undefined.
“An EIR may not define a purpose for a
project and then remove from consideration those matters necessary to the
assessment whether the purpose can be achieved.” (County
of Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1, 9.) The PEIS/R may not be able to provide a
precise determination of the sources for Program water. However, because the Program is premised on
such water being available, the PEIS/R must include an analysis of the impacts
of supplying such water, from whatever source.
Without such analysis, a proper evaluation of the Program and its
alternatives and mitigation measures is not possible. CALFED has approved a Program requiring large
amounts of water to fulfill its objectives without analyzing the environmental
impacts of supplying such water. This
will not do.
Finally,
this does not mean the PEIS/R must identify the ultimate source of water for
the Program. Obviously, the dynamics of
the Program will not allow such identification at this early stage with any
precision. As stated by the court in Stanislaus
Natural Heritage Project: “We are
not concluding respondent must first find a source of water for the ‘project’
before an EIR will be adequate. We are
concluding that an EIR for this project must address the impact of supplying water
for the project. . . . [T]he decision to approve the EIR of this project does require
recognition that water must be supplied, that it will come from a specific
source or one of several possible sources, of what the impact will be if
supplied from a particular source or possible sources and if that impact is
adverse how it will be addressed. . . .” (Stanislaus Natural Heritage Project, supra,
48 Cal.App.4th at pp. 205-206.)
Water is
the life blood of the CALFED Program and the environmental impacts of
acquisition of water from the various potential sources are an essential
component of a public and informed decision to proceed with the project.
D. The PEIS/R Analysis of Program
Alternatives
1. Introduction
Appellants
challenge the adequacy of the PEIS/R’s alternatives discussion. They argue the alternatives included were
inadequate because they varied only as to two of the eight components of the
Program, conveyance and storage. They
further argue the PEIS/R should have included an alternative involving less
conversion of farmland and another involving reduced exports of water to Southern California.
Finally, they argue the alternatives discussed in the PEIS/R were not
feasible because they involved violations of state water laws.
“[I]t is
the policy of the state that public agencies should not approve projects as
proposed if there are feasible alternatives or feasible mitigation measures
available which would substantially lessen the significant environmental
effects of such projects . . . .” (Pub. Resources Code, § 21002.) A feasible alternative is one that is
“capable of being accomplished in a successful manner within a reasonable period
of time, taking into account economic, environmental, social and technological
factors.” (Pub. Resources Code,
§ 21061.1.)
An EIR must discuss a reasonable range of
alternatives for the proposed project or its location that “(1) offer[s]
substantial environmental advantages over the project proposal [citation]; and
(2) may be ‘feasibly accomplished in a successful manner’ considering the
economic, environmental, social and technological factors involved.” (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 566.)
The EIR need not consider every possible alternative. (Guidelines, § 15126.6, subd. (f).) The required range “is governed by a ‘rule of
reason’ that requires the EIR to set forth only those alternatives necessary to permit a
reasoned choice.” (Guidelines,
§ 15126.6, subd. (f).) Thus,
perfection is not the rule. (Long Beach Sav. & Loan Assn. v. Long Beach
Redevelopment Agency
(1986) 188 Cal.App.3d 249, 264.) “CEQA
establishes no categorical legal imperative as to the scope of alternatives to
be analyzed in an EIR. Each case must be
evaluated on its facts, which in turn must be reviewed in light of the
statutory purpose.” (Citizens of
Goleta Valley v. Board of Supervisors, supra,
at p. 566.) The substantial evidence
test applies to review of an EIR’s range of alternatives. (See id. at pp. 565-567.)
2. The Process of Selecting Alternatives
The first
step in assessing the adequacy of project alternatives is to determine whether
the project objectives were properly established. As we point out later (infra at p. 142), appellants do not challenge the Program objectives. However, as noted a moment ago, they do
challenge the adequacy of the discussion of Program alternatives. Only alternatives that “could feasibly attain
most of the basic objectives of the project” need to be included in an EIR.
(Guidelines, § 15126.6, subd. (f).)
The PEIS/R
states: “The mission of the CALFED
Bay-Delta Program is to develop a long-term comprehensive plan that will
restore ecological health and improve water management for beneficial uses of
the Bay-Delta system.” As noted earlier,
the PEIS/R identifies four primary objectives to address this mission:
(1) “Ecosystem
Quality--Improve and increase aquatic and terrestrial habitats and improve
ecological functions in the Bay-Delta to support sustainable populations of
diverse and valuable plant and animal species.”
(2) “Water
Supply--Reduce the mismatch between Bay-Delta water supplies and the
current and projected beneficial uses dependent on the Bay-Delta system.”
(3) “Water
Quality--Provide good water quality for all beneficial uses.”
(4) “Vulnerability
of Delta Functions--Reduce the risk to land use and associated economic
activities, water supply, infrastructure, and the ecosystem from catastrophic
breaching of Delta levees.”
CALFED
pursued an elaborate process for identifying and narrowing the alternatives
that would achieve the Program’s goals.
Phase I of the Program began in 1995 and involved a lengthy public
process to develop potential alternatives.
Fifty action categories were selected and, within these categories,
hundreds of individual actions were identified.
The action categories became the building blocks for devising
alternatives, with each alternative being a combination of action categories. The PEIS/R explains that, “[g]iven the large
number of categories and the range of perspectives on solutions to Bay-Delta
problems among stakeholders and CALFED agencies, thousands of potential
alternatives could have been identified.”
In
recognition of the breadth of the Program and the number of potential
alternatives, CALFED devised a methodology for keeping the number of
alternatives to a manageable level.
CALFED defined approaches to resolve four “critical conflicts” existing
between beneficial uses and Bay-Delta resources. Those critical conflicts are:
“Fisheries
and Diversions. The conflict between
fisheries and diversions results primarily from fish mortality attributable to
water diversions. This includes direct
loss at pumps, reduced survival when young fish are drawn out of river channels
into the Delta, and reduced spawning success of adults when migratory cues are
altered. The effects of diversions on
species of special concern have resulted in regulations that restrict the
quantities and timing of diversions.
“Habitat
and Land Use and Flood Protection.
Habitat to support various life stages of aquatic and terrestrial biota
in the Bay-Delta has been lost because of land development and construction of
flood control facilities to protect developed land. The need for habitat affects land development
planning as well as levee maintenance and planning. Efforts to restore the balance often require
that land used for agricultural production be dedicated to habitat.
“Water
Supply Availability and Beneficial Uses.
As water use and competition for water have increased during the past
several decades, conflict also has increased among users. A major part of this conflict is between the
volume of in-stream water needs and out-of-stream water needs, and the timing
of those needs within the hydrologic cycle.
“Water
Quality and Land Use. Water quality
can be negatively affected by land use, and ecosystem water quality needs are
not always compatible with urban and agricultural water quality needs.”
CALFED then
defined alternate approaches for resolving these conflicts and alternate
degrees of resolution. For example,
“[a]pproaches for resolving the water supply availability and beneficial uses
conflict included: (1) a demand
reduction approach, and (2) a supply enhancement approach.” This resulted in the identification of 32
separate approaches to resolving the four critical conflicts. Teams of experts were assembled to develop
preliminary solution alternatives from these 32 approaches, leading to a list
of 100 preliminary, single-focus solution alternatives.
At this
point, alternatives development was transferred from the experts to CALFED
staff “in order to ensure maximum sensitivity to the policies and positions of
the CALFED agencies and stakeholder groups.”
Staff explored ways to combine the single focus alternatives into ones
that addressed all the conflict areas in a more balanced way. Duplicate actions within a combined
alternative were eliminated, and actions that were redundant or not compatible
with the combined alternative were eliminated.
In this way, the 100 single-focus alternatives were reduced to 31
combined alternatives and then to 20.
These 20 alternatives were presented to the stakeholders, members of the
Bay-Delta Advisory Council and the public at a workshop. Based on input received at the workshop, the
list of alternatives was further reduced to 10.
The various
alternatives considered by CALFED staff utilized different combinations of
water management tools and varied in the level of effort applied to actions
intended to address water use efficiency, water quality, ecosystem quality and
levee system vulnerability. The two
components of the Program that involved distinctly different approaches among
the alternatives were conveyance and water storage. “For example, one alternative contained
modest efforts in Bay and Delta habitat restoration and water pollution source
control, moderate efforts in system stabilization, and extensive conjunctive
use and groundwater storage efforts.
This alternative included an in-Delta surface storage component but no
isolated conveyance component. Another
alternative contained extensive efforts in Bay and Delta habitat restoration
and water pollutant source control, modest efforts in system stabilization, and
moderate conjunctive use and groundwater storage efforts. This alternative contained a large isolated
conveyance component but no surface storage component.”
In April
1996, CALFED conducted eight public meetings, one workshop and one meeting of
the Bay-Delta Advisory Council to discuss the 10 alternatives. From the comments received, CALFED reached
the following conclusions: (1) “The best
possible source [of] water quality is of paramount importance to urban water
supplies.” (2) “Delta levees will be
needed to protect agriculture, infrastructure, and habitat no matter how water
is conveyed in the Delta.” (3)
“Ecosystem actions in the Program need[] a single coherent vision of ecosystem
restoration.” (4) “Water use efficiency
must be strongly pursued in all the alternatives.” (Emphasis omitted.)
CALFED
devised a list of solution principles designed to “provide an overall measure
of the acceptability of alternatives and guide the design of the institutional
part of each alternative.” These
solution principles are:
“Reduce
conflicts in the system. Solutions
will reduce major conflicts among beneficial uses of water.
“Be
equitable. Solutions will focus on
solving problems in all problem areas.
Improvement for some problems will not be made without corresponding
improvements for other problems.
“Be
affordable. Solutions will be
implementable and maintainable within the foreseeable resources of the Program
and stakeholders.
“Be
durable. Solutions will have
political and economic staying power and will sustain the resources they were
designed to protect and enhance.
“Be
implementable. Solutions will have
broad public acceptance and legal feasibility, and will be timely and
relatively simple to implement compared with other alternatives.
“Pose no
significant redirected impacts.
Solutions will not solve problems in the Bay-Delta system by redirecting
significant negative impacts, when viewed in their entirety, within the
Bay-Delta or to other regions of California.”
CALFED
staff evaluated the 10 alternatives using these six solution principles and
adopted a pattern whereby four “common” programs (water quality, levee system
integrity, ecosystem quality, and water use efficiency) would be combined with
two variable components (storage and conveyance). Staff concluded the four common components
“were necessary in each of the alternatives to achieve the Program’s purpose
and needed to be composed of the same actions in all alternatives.” Thereafter, three basic alternative
approaches were formulated around different conveyance options: “existing system conveyance, modified
through-Delta conveyance, and dual-Delta conveyance.” A storage option for each alternative was
also considered.
In phase II
of the Program, two additional components were added to the alternatives, a
water transfer component and a watershed component. Thus, six common components were combined
with two variable components in the three basic alternative approaches. Seventeen variations of the three alternative
approaches were then considered to refine further the two variable components,
storage and conveyance. The list of 17
was later reduced to 12. This narrowing
of alternatives “primarily focused on technical deficiencies and the conveyance
options used in each alternative. Additionally,
if alternatives provided the same conveyance function with similar impacts, the
less expensive alternatives were retained.
Alternatives with lower costs but higher adverse impacts were
eliminated.”
The 12 remaining alternatives were
evaluated in the March 1998 draft PEIS/R.
Based on agency and public comments on the draft PEIS/R and additional
technical analysis, the alternatives were narrowed to the four that were
eventually included in the final PEIS/R.
These four alternatives “vary primarily in their approach to water
conveyance. Three basic alternative
approaches were formed around different configurations of Delta
conveyance: existing system conveyance,
modified through-Delta conveyance, and dual-Delta conveyance. Each approach includes the same set of
actions for water use efficiency, water quality, levee system integrity,
ecosystem quality, water transfers, and watersheds. A range of storage options was evaluated for
each alternative to support these programs and the Delta conveyance, and to
seek a balance between attainment of Program objectives and cost
effectiveness.”
As
described earlier, alternative 1 involves maintaining the existing Delta
conveyance structures but adding some specific improvements in the southern
part of the Delta, such as constructing a “new 15,000-[cubic feet per second]
screened intake with low-lift pumps” at the head of the Clifton Court
Forebay. Alternative 2 involves a
modified through-Delta conveyance. It
includes many of the same improvements as in alternative 1 plus some other
improvements in the northern part of the Delta, such as constructing a fish
ladder or equivalent structure to convey fish “upstream, past the pumps and
screens that are associated with the diversion structure, to the Sacramento
River.” Alternative 3 involves
dual-Delta conveyance whereby existing Delta channels would be modified and a
new canal or pipeline would be constructed connecting the Sacramento River
north of the Delta to the SWP and CVP south of the Delta. This alternative includes many of the same
improvements in the north and south Delta as in the first two
alternatives. “The Preferred Program
Alternative incorporates elements similar to some of the elements in
Alternatives 1 and 2. While it includes
a diversion facility on the Sacramento River and channel to the Mokelumne
River, the size of this facility would be considerably smaller than Alternative
2.”
3. The Legality of the Selected Alternatives
CDWA
contends the PEIS/R does not satisfy the CEQA requirement of presenting a range
of reasonable alternatives, because each of the alternatives described in the
PEIS/R, including the preferred program alternative, includes illegal
actions. In particular, CDWA argues the
alternatives “seek to increase exports over existing levels,” in violation of
Water Code sections 11460 et seq. and 12200 et seq.; article 10, section 2 of
the California Constitution; and the public trust doctrine. Therefore, CDWA argues, the alternatives are
not feasible, i.e., “capable of being accomplished in a successful manner
within a reasonable period of time, taking into account economic,
environmental, legal, social, and
technical factors.” (Guidelines,
§ 15364, italics added.)
Article
X, section 2 of the State Constitution prohibits waste or unreasonable use of
the state’s waters. It reads, in
relevant part: “It is hereby declared
that because of the conditions prevailing in this State the general welfare
requires that the water resources of the State be put to beneficial use to the
fullest extent to which they are capable, and that the waste or unreasonable
use or unreasonable method of use of water be prevented, and that the
conservation of such waters is to be exercised with a view to the reasonable
and beneficial use thereof in the interest of the people and for the public
welfare. . . .” This provision
also protects riparian and appropriative water rights to the extent of
reasonable use.
Water
Code section 11460 et seq. protects the beneficial water rights of areas of
origin. Water Code section 11460 reads: “In the construction and operation by the
department of any project under the provisions of this part a watershed or area
wherein water originates, or an area immediately adjacent thereto which can
conveniently be supplied with water therefrom, shall not be deprived by the
department directly or indirectly of the prior right to all of the water
reasonably required to adequately supply the beneficial needs of the watershed,
area, or any of the inhabitants or property owners therein.”
Water Code
section 12200 contains the legislative finding that “the merging of fresh water
with saline bay waters and drainage waters and the withdrawal of fresh water
for beneficial uses [in the Delta] creates an acute problem of salinity intrusion
into the vast network of channels and sloughs of the Delta.
. . .” Water Code section
12203 states: “It is hereby declared to
be the policy of the State that no person, corporation or public or private
agency or the State or the United States should divert water from the
channels of the . . . Delta to which the users within said Delta are
entitled.” Water Code section 12205
reads: “It is the policy of the State
that the operation and management of releases from storage into the
Sacramento-San Joaquin Delta of water for use outside the area in which such
water originates shall be integrated to the maximum extent possible in order to
permit the fulfillment of the objectives of this part.”
The
public trust doctrine recognizes the state’s ownership of “all of its navigable
waterways and the lands lying beneath them ‘as trustee of a public trust for
the benefit of the people.’” (Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67
Cal.2d 408, 416.) The public trust
doctrine “is an affirmation of the duty of the state to protect the people’s
common heritage of streams, lakes, marshlands and tidelands, surrendering that
right of protection only in rare cases when the abandonment of that right is
consistent with the purposes of the trust.”
(National Audubon Society v.
Superior Court, supra, 33 Cal.3d
at p. 441.)
The
trial court concluded the legality of actions proposed in the various Program
alternatives was not properly before it.
The court indicated those issues should be decided in the first instance
by the SWRCB. The court explained the
PEIS/R is only required to “recognize and discuss” those legal issues, not
resolve them. Finally, the trial court
concluded claims regarding the legality of the alternatives are premature.
The
State argues the trial court properly concluded claims regarding violation of
state water law are premature. According
to the State, “[t]he PEIS/R and ROD did not authorize any actions that would be
in violation of the cited laws or commit any agency to a particular
result.” On the contrary, the PEIS/R
repeatedly assures readers that all Program actions will be consistent with
state water laws.
We
agree with the State. CDWA’s claim of
illegality is based on a statement in the ROD that CALFED will commit to no net
loss of water deliveries for the first four years of the Program. However, in this same provision, CALFED
states its commitment is “subject to specified conditions and legal
requirements.”
The
PEIS/R itself repeatedly assures that all actions taken under the Program will
be subject to legal constraints. Chapter
8 is entitled “Compliance with Applicable Laws, Policies, and Plans and
Regulatory Framework.” Section 8.2.2
states: “The Delta Protection Act of
1959 requires adequate water supplies for multiple uses (for example,
agriculture, municipal and industrial, and recreation) in the Delta. The Act also provides for Delta water exports
under certain conditions that are spelled out in the California Water Code and
other regulatory requirements. . . .” Section 8.2.4 discusses SWRCB Decision
1485. It states: “In 1978, the SWRCB adopted the [Water Quality
Control Plan] for the Sacramento-San Joaquin Delta and Suisun Marsh (1978 Delta
Plan). At the same time, the SWRCB
adopted Water Right Decision-1485 (D-1485). . . . D-1485 required water diverters to comply
with the water quality objectives in the 1978 Delta Plan. The objectives in the plan were designed to
protect natural resources by maintaining Delta water quality in at least as
good condition as its condition would have been in the absence of the CVP and
SWP. . . .”
Section
8.2.9 discusses riparian and appropriative water rights. It states that riparian rights are based on
ownership of property adjacent to a water body and are not lost if unused,
whereas appropriative rights are based on first-in-time use of water and can be
lost if unused. Appropriative rights
obtained after 1914 are controlled by the SWRCB. “The SWRCB issues appropriative rights with
conditions to protect other water rights holders, including Delta and upstream
riparian water users, and to protect the public interest, including fish and
wildlife resources.” According to the
PEIS/R, “[t]he quantity and quality of water used by existing riparian and
senior appropriative users can be limited only by subsequent appropriations in
limited circumstances when the senior rights are not legally injured.” However, “during times of water shortage, all
riparian water rights holders must share the available supply according to each
landowner’s reasonable requirements and uses.”
Section
8.7 discusses area of origin water laws.
It states: “When the CVP and the
SWP were being planned and developed, area-of-origin provisions were added to
the California Water Code to protect local northern California supplies
from being depleted as a result of the projects. County-of-origin statutes reserve water
supplies for counties in which the water originates, if the SWRCB determines
that an application for assignment or release from priority of state water
rights filings will deprive the county of water necessary for its current and
future development. Provisions of
watershed protection statutes require that elements of the CVP and SWP not
deprive the watershed or the area where water originates (or immediately
adjacent areas that can be conveniently supplied with water) of the prior right
to water that could be reasonably required to supply the present and future
beneficial needs of the watershed area, any of its inhabitants, or property
owners.”
Finally,
section 8.5 discusses the public trust doctrine. It states that, “[w]hen planning and
allocating water resources, the State of California must consider the public
trust and preserve for the public interest the uses protected by the
trust.” Section 8.5 further states that,
“in administering water rights laws and approving water diversions, the State
also has a duty of continuous supervision over the taking and use of
appropriated water to protect these public trust uses.”
Common
Response No. 13 of the PEIS/R discusses area-of-origin water rights
issues. It states: “The Program fully intends to implement its
actions in a manner consistent with California water
rights, including existing laws and regulations protecting areas of
origin. This intention is supported by
understanding that the CALFED Program does not have any legal or regulatory
jurisdiction over water rights or their application. These authorities are vested in the SWRCB
(Board) and in the justice system (the courts). . . .” The response continues: “The Water Transfer Program Plan has
generated many comments about CALFED’s impacts on water rights. However, the Water Transfer Program Plan does
not propose any changes to the legal structure in which the current water
market operates. The program plan does
include recommendations and proposals to streamline approval procedures;
clarify operational requirements, such as reservoir refill and carriage water
requirement; and require additional analysis and disclosure. The program does not propose any change to
existing water rights or other California Water Code provisions that regulate
water transfers in California.” Lastly, the response states: “CALFED also received comments expressing
concern that future source area water needs have not been considered. However, impact analyses completed as part of
the Programmatic EIS/EIR
incorporated projections of future increases in source area demands, as
estimated for the year 2020 by DWR’s Bulletin 160-98.”
CDWA’s
argument that the alternatives described in the PEIS/R are not feasible assumes
CALFED does not mean what it says. Even
if the Program calls for an increase in water exports, the PEIS/R assures that
such increase will not come at the expense of area-of-origin or other water
rights protected by law. Absent evidence
to the contrary, we will not presume the CALFED agencies will violate existing
law in the performance of the Program.
Furthermore, as discussed previously, the PEIS/R does not identify the
ultimate sources for Program water, including the sources for any increase in
exports. Therefore, CDWA’s assumption
that Program water will come from water rights holders is premature.
4. The Lack of Alternatives for the Six
Common
Components
Appellants
contend the PEIS/R is deficient in failing to include alternatives for six of
the eight Program components. CDWA, in
particular, argues that “it can by no means be fairly said that Respondents’
four alternatives in its [PEIS/R] which ‘vary primarily with regard to
conveyance’ and hold the other six programs constant are to the ‘project as a
whole’ or to the ‘project in its entirety’ or to the ‘overall’ thirty-year
[Preferred Program Alternative].”
In rejecting challenges to the
PEIS/R’s alternatives analysis, the trial court said: “The required CEQA process was satisfied as
CALFED used a multi-year, multi-phase, participatory process to develop program
alternatives. . . . [T]he final configuration of program
alternatives in the EIR is not the entire story.
The final configuration is the result of many intermediate steps to
consider and study a wide range of potentially feasible alternatives. An agency is required to use ‘reasonable
diligence to investigate project alternatives.’
The total record supports the Court’s determination that a reasonable
range of program alternatives was considered.”
(Fn. omitted.)
But CEQA
requires that the EIR describe a range
of reasonable alternatives to the project.
(Guidelines, § 15126.6, subd. (a).)
A lead agency makes an initial assessment during scoping as to which
potential alternatives are feasible, and the EIR should set forth the alternatives
that were considered but rejected in this assessment, along with the reasons
therefore. “[A]gency consideration of
otherwise reasonable alternatives in the administrative record cannot replace
the CEQA mandated discussion of alternatives in the EIR.”
(Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 569.) The purpose of an EIR is to provide information to
decision makers and the public so that they may decide for themselves if the
project is appropriate. (Guidelines,
§ 15126.6, subd. (f).) Undisclosed
alternatives that were considered and rejected by the agency do not further
this purpose.
The State
and Metropolitan argue appellants are not challenging the sufficiency of the
alternatives analysis but CALFED’s discretion to set Program objectives. Metropolitan then says a challenge to the
Program’s objectives is unavailing, because the setting of objectives is a
quasi-legislative act subject to review under Code of Civil Procedure section
1085 and Public Resources Code section 21168.5 and, therefore, may be set aside
only if “‘arbitrary, capricious, entirely lacking in evidentiary support, or
unlawfully or procedurally unfair.’”
Metropolitan argues the selection of project objectives is a policy
matter that should be left to the discretion of the lead agency.
The
objectives of the Program take on importance because, as noted previously, an EIR need only examine in detail
alternatives that “could feasibly attain most of the basic objectives of the
project.” (Guidelines, § 15126.6,
subd. (f).) The basic mission of the
CALFED Program is twofold: (1) “to
develop a long-term comprehensive plan that will restore ecological health” to
the Bay-Delta, and (2) to “improve water management for beneficial uses of the
Bay-Delta system.” The PEIS/R explains
that, because both of these objectives are essential to the success of the
CALFED Program, only alternatives that would satisfy both were carried forward
for detailed consideration. CALFED staff
concluded the common components are necessary in all alternatives to achieve
the Program’s dual purposes.
We need not decide the level of
deference we should accord to an agency’s selection of project objectives. Appellants do not challenge the factual basis
for either the Program’s dual mission of restoring ecological health and
improving water management for beneficial uses or the four objectives of
improving ecosystem quality, reducing the mismatch of water supply and demand,
improving water quality, and reducing risks to Delta functions. Thus, there is no occasion to assess, based
on whatever standard is appropriate, whether the objectives are supported by
the record.
The Farm
Bureau argues a lead agency may not preordain the outcome of the alternatives
analysis by defining the project’s objectives in an unreasonably restrictive
manner. In Citizens Against Burlington, Inc. v. Busey (D.C. Cir. 1991) 938
F.2d 190, the federal court said “an agency may not define the objectives of
its action in terms so unreasonably narrow that only one alternative from among
the environmentally benign ones in the agency’s power would accomplish the
goals of the agency’s action.” (Id. at p. 196.)
The Farm
Bureau points out that, in response to comments complaining about CALFED’s
failure to consider an alternative with reduced impacts to agriculture
(discussed infra), CALFED indicated
CEQA does not require consideration of alternatives inconsistent with the
Program’s objectives. The Farm Bureau
argues CALFED, in effect, concluded “the only way to restore the Bay-Delta was
to convert 243,000 acres of agricultural land and 400,000 acre-feet of
agricultural water to environmental uses.”
The Farm Bureau further argues that “by assuming that the program
objectives required the conversion of 243,000 acres of agricultural land and
400,000 acre-feet of agricultural water, and only considering a single
alternative which contemplates such conversion, Respondents defined the
objectives of CALFED in an unreasonably narrow manner, thereby impermissibly predetermining the result of
the EIR.”
The Farm
Bureau’s argument is based on a faulty understanding of the Program objectives. As discussed previously, the primary mission
of CALFED is twofold--ecosystem restoration and improved water management. Other objectives of the Program are improved
water quality and improved Delta functions.
The Farm Bureau concentrates on the single objective of ecosystem
restoration and ignores the rest. During
the alternatives scoping process, CALFED determined the six common components
were necessary to each alternative in order to satisfy all of the Program’s objectives.
The Farm Bureau does not challenge this conclusion.
CDWA argues
the failure to consider alternatives to the six common components was a failure
to consider alternatives to the Program as a whole. CDWA relies on several Court of Appeal
decisions to support this argument. In Big
Rock Mesas Property Owners Assn. v. Board of Supervisors (1977) 73
Cal.App.3d 218, the petitioners challenged the EIR associated with a tentative tract
map for a proposed residential subdivision.
The appellate court found the EIR adequate, notwithstanding that it
did not describe alternatives to the amount of grading proposed for the project
or the location and character of a proposed access road. The court explained: “Petitioners contend the EIR does not meet the requirements of
California law in that it fails to discuss ‘alternatives to the enormous amount
of grading and the filling and construction of an unlawfully steep access road
in a natural canyon.’ The pertinent
statute and EIR guidelines require that an EIR describe alternatives to the proposed
project. [Citation.]
We interpret such requirement as applicable only to the project as a
whole, not to the various facets thereof, such as grading and access roads.” (Id. at pp. 226-227, fn.
omitted.)
In A
Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th
630, the petitioner challenged an EIR for the first phase of a multiphase
commercial development project. Among
other things, the petitioner argued the EIR failed to analyze traffic impacts
and mitigation associated with 214 dirt-hauling trucks required for the
project. The court rejected this
argument, explaining: “[T]he EIR is not deficient because it does
not describe alternatives to excavation trucks because the statutes do not
require alternatives to various facets of the project. [Citation.]
Rather, the EIR must discuss proposed alternatives to the project as a
whole . . . .” (Id.
at p. 642, fn. 8.)
In Al
Larson Boat Shop, supra, 18
Cal.App.4th 729, the petitioners challenged a programmatic EIR for an amendment to a port master
plan and an amendment containing a five-year plan to increase cargo handling
capacity through six anticipated projects.
In that case, the court found no abuse of discretion in the fact the EIR only provided alternatives to the
five-year plan, not the six individual projects. (Id. at p. 744.)
Rather than
assist CDWA, the foregoing cases demonstrate the PEIS/R need not include
alternatives that vary as to each of the eight components of the Program. Instead, the PEIS/R is required to include
alternatives to the Program as a whole.
RCRC argues CALFED attempted to
evade its alternatives obligation by “arbitrarily” designating six components
of the Program as “common.” We
disagree. In the PEIS/R, CALFED explained
that “many of the problems in the Bay-Delta system are interrelated” and
“[p]roblems in one resource problem area cannot be solved effectively without
addressing problems in all four problem areas at once.” The ROD states: “All aspects of the CALFED Program are
interrelated and interdependent.
Ecosystem restoration is dependent upon water supply and
conservation. Water supply depends upon
water use efficiency and consistency in regulation. Water quality depends upon improved
conveyance, levee stability and healthy watersheds. The success of all of the elements depends
upon expanded and more strategically managed storage.”
If, as CALFED concluded, the only
alternatives to the Program as a whole that will satisfy the Program objectives
include the six common components in substantially the same form, there was no
obligation to include alternatives that varied on these six components. In effect, CALFED concluded any alternative
that varied with respect to the common components is not feasible. There was nothing arbitrary in CALFED’s
conclusion in this regard.
None of the
appellants has mounted an effective challenge to the lack of alternatives for
the six common components. Although
appellants point out the lack of alternatives to these components and argue
such lack of alternatives violates CEQA, they do not present any viable
alternative (except as discussed below) that should have been included in the
PEIS/R or explain how the presentation of alternatives to the common components
would have improved the informational value of the PEIS/R.
CDWA
discusses a potential alternative to one aspect of the Water Quality
Program. According to CDWA, CALFED
proposes to meet the water quality objectives of the Program by focusing on
improving water quality at the source, i.e., improving in-stream water, whereas
another approach would be to improve water quality at the treatment plant. However, CDWA does not cite any evidence that
this alternative was ever proposed to CALFED during the environmental review
process. No action may be brought to
challenge an EIR “unless the alleged grounds for noncompliance . . . were
presented to the public agency orally or in writing by any person during the
public comment period . . . .” (Pub. Resources Code, § 21177, subd.
(a).)
CDWA also argues
CALFED improperly rejected alternatives using modest to moderate levels of
effort to meet Program objectives. The
State argues such alternatives were rejected in favor of a more flexible
approach that would vary effort as needed.
CDWA argues: “The rejection of
the alternatives with a ‘low or even moderate level[] of implementation’ on
these grounds is nonsensical. It is
clearly unreasonable to even suggest that a lower level of effort directed at
the project objectives will somehow not meet those project objectives, yet a
higher level will. That is
nonsense. Clearly all levels of
effort will meet the project’s objectives, after all they were in fact
precisely designed to meet the project’s objectives.”
We see
nothing “nonsensical” in CALFED concluding that a flexible level of effort
would meet Program objectives while an unvarying modest or moderate level would
not. We believe CALFED could reasonably
conclude a modest or moderate level of ecosystem restoration activities, for
example, may not be sufficient to bring listed fish or wildlife off the
endangered species list. Furthermore,
CDWA does not point out where any party ever proposed such a reduced effort
alternative for the Program. (See Pub.
Resources Code, § 21177, subd. (a).)
There is
nothing in the record to suggest any party ever proposed alternatives to the
common components of the Program. The
only portions of the common components that are challenged here are the EWA and
the commitment of no reduced exports.
However, RCRC does not cite anything in the record to suggest any
alternative to the EWA was ever suggested.
This, of course, is not surprising given the unsettled nature of the EWA
at the programmatic level (to be discussed later). Nor does RCRC provide any basis for asserting
that CALFED incorrectly concluded there are no alternatives to the EWA. As for water exports, we address alternatives
to this aspect of the Program below.
5. The Necessity for an Alternative that
Reduces the
Conversion
of Agricultural Land and Water
The Farm
Bureau contends the PEIS/R was required to include an alternative that calls
for reduced conversion of agricultural land and water. The Farm Bureau argues CALFED determined
early in the scoping process that an alternative limiting conversion of
agricultural land and water is feasible, but such an alternative was not
carried forward in the analysis. The
State counters that CALFED never concluded an alternative with less conversion
of agricultural land is feasible and, at any rate, the proposals that are
included in the PEIS/R do not call for a particular amount of agricultural land
to be converted but instead indicate a maximum amount.
The State
has the better argument. The record does
not support the Farm Bureau’s assertion that CALFED determined an alternative
with less agricultural conversion is feasible.
A public workshop information package dated December
4, 1995,
described an existing land use pattern approach to meeting CALFED’s
objectives. That approach would not have
required conversion of agricultural land to habitat. However, this workshop document did not say
such an approach was a feasible alternative, only that it was a starting point
for “assembling preliminary alternatives.”
In another document, Robin Reynolds
of the CDFA told CALFED: “The CDFA
believes that objective analysis would show that it is feasible to achieve many
of the CALFED program goals related to ecosystem restoration, without the
significant and unmitigated adverse impacts on prime agricultural land or the
beneficial use of the Bay-Delta system for agriculture.” This document is an undated memorandum
reflecting the opinion of one member of CDFA.
Standing alone, it cannot be taken to reflect CDFA’s view of the
feasibility of achieving the Program’s goals without significant impacts to
agriculture and certainly cannot be taken to reflect CALFED’s view of the
matter. More importantly, it addresses
“many of the CALFED program goals related to ecosystem restoration,” not all,
or even most, of the goals of the Program.
The Farm
Bureau also argues CALFED recognized that an alternative with limited conversion of agricultural water
was feasible. The Farm Bureau relies on
another portion of the workshop information package described above, where
CALFED identified two approaches to resolving the conflict between water supply
availability and beneficial uses: a
“Demand Reduction Approach” and a “Supply Enhancement Approach.” The Farm Bureau argues the supply enhancement
approach would not require conversion of agricultural water to in-stream
uses.
CALFED did
not say a pure supply enhancement approach was feasible, only that the two
approaches, demand reduction and supply enhancement, “bracket[ed]” the range of
possible alternatives. CALFED indicated
the universe of feasible alternatives would be found between these two
extremes.
The Farm Bureau argues CALFED was
required to consider an alternative calling for the conversion of less than
243,000 acres of agricultural land and 400,000 acre-feet of agricultural
water. However, this argument
presupposes that the alternatives included in the PEIS/R call for the
conversion of those amounts of land and water.
They do not. The preferred
program alternative estimates the conversion of from 191,100 to 242,900 acres
of agricultural land. The responses to
comments state: “[T]he number of acres
of Important Farmland that CALFED could convert (243,000 acres) is a worst-case
scenario that is unlikely to occur. For
instance, the number includes a large acreage for seasonal wetlands, which
likely will be accomplished through leasing agricultural land for winter
flooding. In this type of action, no
conversion would take place.” Similarly,
nowhere in the PEIS/R is it stated that all 400,000 acre-feet of water would
come from agricultural sources.
Furthermore,
during the scoping process, CALFED reduced the amount of agricultural land
proposed for conversion. Appendix M of a
phase I summary report, which listed 10 draft alternatives, indicated that
“[a]pproximately 300,000 to 400,000 acres of land would be permanently retired,
using willing sellers, to reduce agricultural water consumption and improve
water quality.” In an August 13, 1996 letter to the Farm Bureau, CALFED stated that “[t]he
ten draft alternatives included both temporary fallowing during periods of
shortage, and permanent land retirement.
Permanent retirement was included in the alternatives as a measure to
improve water quality by reducing discharges from drainage problem lands, and
as a demand management/water use efficiency measure. The amount of permanent land retirement
varied among the alternatives from a low range of 70,000 to 100,000 acres of
permanent land retirement, to an upper end of 750,000 to 850,000 acres.
. . .” However, later CALFED
determined that agricultural land retirement would not be used as a means of
reducing water demand. In addition, an
alternative calling for more ecosystem restoration was rejected during the
scoping phase because, among other things, it involved a redirection of impacts
to agriculture and land use.
According to the responses to
comments, the Ecosystem Restoration Program seeks to reduce agricultural
conversion by “encourag[ing] ‘wildlife friendly’ agricultural practices to
support existing agricultural productivity while contributing to overall
improvements for species dependent on pastures, harvested grain fields, and
crops.” It also “recommends developing
and implementing ‘wildlife-friendly’ agricultural practices throughout much of
the [Ecosystem Restoration Program] focus area.” The responses state: “To meet the land needs of the Program,
CALFED will first look to use of existing state and federal land. If additional land is required, CALFED will
obtain easements where practical and compatible with the intended use.”
Furthermore,
CALFED did consider alternatives with reduced conversion of agricultural
land. According to the responses to
comments, when the list of 100 alternatives was reduced to 31, among the
resulting alternatives “were minimal and moderate ecosystem restoration actions
with a greatly reduced potential to cause significant effects on agricultural
lands.” However, following several
workshops and public meetings, and based on input received, “CALFED concluded
that these actions would not achieve the basic CALFED Program objective of
restoring ecological health to the Bay-Delta system.”
In sum, the
alternatives scoping process resulted in a reduction in the amount of
agricultural land that would potentially be converted to other uses under the
Program. Furthermore, the alternatives
included in the PEIS/R do not call for a rigid conversion of 243,000 acres of
agricultural land and 400,000 acre-feet of agricultural water. These were established only as maximums, with
lower amounts more likely to occur. In
light of the flexibility in the land conversion numbers, there was no need for
the PEIS/R to include an alternative with a specific lower amount of
agricultural conversion.
6. The Necessity for an Alternative that
Reduces
Water
Exports
Appellants contend the PEIS/R should have included an
alternative with reduced exports of water from the Delta. Instead, they argue, all the alternatives
included in the PEIS/R call for an increase in exports.
The State and Metropolitan counter that a reduced
water exports alternative was considered but rejected as infeasible in light of
projected population growth and the Program’s water supply reliability
goal. The record contains evidence that
significant exports from the Delta will be needed in the future to meet water
demands in Southern
California. According to a California water plan update,
the State’s population is expected to increase from 30 to 49 million by 2020,
with half of that increase in the South Coast Region, thereby increasing water
demand in that area. The PEIS/R explains
that California has historically used more than its proper allocation of Colorado River water, and the Secretary of the
Interior has announced that California will have to live within its allocation
when surplus water is not available and Arizona and Nevada use their full apportionment. Southern California has also been constrained in its
use of Mono Lake water. “Population growth and increased demand,
combined with a possibility of reduced supplies from the Colorado River, mean
the South Coast Region’s annual shortages for 2020 could amount to 0.4 [million
acre-feet] for average years and 0.8 [million acre-feet] in drought years; this
is before consideration of the additional 1- to 3-[million acre-feet]
environmental water needs, which could reduce existing SWP supplies from the
Delta.”
Water conservation efforts will not be enough to meet
this increased demand. The PEIS/R’s
responses to comments explain: “[W]ater
use efficiency alone will not suffice to reduce the mismatch between Bay-Delta
water supplies and current and projected beneficial uses dependent on the
Bay-Delta system.” According to the ROD,
“reliance solely on water use efficiency measures does not allow the
flexibility of water management tools necessary to achieve the water supply,
water quality, and ecosystem quality objectives of the Program.”
The State argues that halting delivery of water to
areas south of the Delta would exacerbate rather than reduce the mismatch between
the beneficial uses in these areas and available water supplies and would
redirect significant impacts to a group of people currently dependent upon the
Delta--most of the state’s citizens.
CDWA
responds that reliance on Delta exports actually reduces water supply
reliability for areas south of the Delta.
According to CDWA, “[b]y relying on Delta exports, the importing areas
are subject to the inherent ‘unreliableness’ [sic] of the Delta as [a]
firm source of their water supply given the nature of the delicate Delta
ecosystem and the numerous competing needs of fish and wildlife and water
users, both within and outside of the Delta, which rely upon the Delta.” CDWA argues that decreasing exports would
increase reliability by “gradually reducing the importing areas[’] reliance on
the ‘unreliable’ Delta and shifting them to ‘more reliable’ non-Delta sources
of water, including, e.g., local groundwater supplies and in some cases the
ocean, as well as boosting their local efforts in maximizing their existing
supplies via water conservation, water reuse, and the like.” Requiring self-reliance by export users, CDWA
argues, would also increase water reliability for in-Delta users.
The
CALFED Program includes a significant commitment to water conservation and the
use of alternative sources of water.
However, the CALFED agencies concluded these efforts alone would not be
enough to meet rising water demands in the areas south of the Delta. As stated in the responses to comments,
“[w]hile water conservation is an important part of any Bay-Delta solution,
conservation does not represent a complete and comprehensive solution to all of
the problems plaguing the Bay-Delta.
Water conservation alone will not adequately address the degraded
Bay-Delta ecosystem, declining water quality, a levee system vulnerable to
failure, or the uncertainty of water supplies to meet beneficial uses.”
Appellants
do not challenge this determination.
Rather, their challenge is directed at the Agency’s goal of reducing the
mismatch between water supply and demand.
As we have said, appellants do not contend this goal is unsupported by
the record. The record contains evidence
that more water will be needed for export south of the Delta to meet a growing
population. CALFED concluded an
alternative with reduced Delta exports would not meet all of the Program’s
goals, in particular this reallocation goal.
But
CALFED’s rejection of a reduced exports alternative is premised on the false
assumption that, for an alternative to be feasible, it must meet all of the Program’s goals. Guidelines section 15126.6, subdivision (b)
reads: “Because an EIR must identify ways to mitigate or
avoid the significant effects that a project may have on the environment (Pub.
Resources Code, § 21002.1), the discussion of alternatives shall focus on
alternatives to the project or its location which are capable of avoiding or
substantially lessening any significant effects of the project, even if
these alternatives would impede to some degree the attainment of the project
objectives, or would be more costly.” (Italics added.) Subdivision (f) reads: “The range of alternatives required in an EIR is governed by a ‘rule of reason’
that requires the EIR to set forth only those alternatives necessary to permit a
reasoned choice. The alternatives shall
be limited to ones that would avoid or substantially lessen any of the
significant effects of the project. Of
those alternatives, the EIR need examine in detail only the ones that the lead agency
determines could feasibly attain most of the basic objectives of the
project. The range of feasible
alternatives shall be selected and discussed in a manner to foster meaningful
public participation and informed decision making.” (Italics added.)
City of Carmel-by-the-Sea v. U.S. Dept. of Trans. (9th Cir. 1997) 123 F.3d 1142 involved a project to realign State
Highway 1 near the City of Carmel-by-the-Sea.
The “Purpose and Need” section of the final EIR defined the desired level of
service for the new highway for the next 20 years as Level of Service C, which
is “in the zone of stable flow, but speeds and maneuverability are more closely
controlled by the higher volumes.” (Id. at p. 1149, fn. 3; see also id. at p. 1155.) The city and others challenged the EIR on a number of grounds, including
the adequacy of the alternatives discussion.
The petitioners argued selection of Level of Service C as a goal for the
project preordained the alternative selected.
(Id. at p. 1155.)
After
first finding the selection of Level of Service C was a reasonable goal for the
project and that other goals, such as environmental and financial concerns,
were also considered (City of
Carmel-by-the-Sea v. U.S. Dept. of Trans., supra, 123 F.3d at p. 1157), the
court concluded there were a number of alternatives that achieved the project’s
goals. (Id. at p. 1159.) The court
explained: “Each of the alternatives
considered in the Final Environmental Impact Statement/Report achieved the
project goals, from traffic delay to safety to environmental impact, in varying
degrees. No one alternative fulfilled
all the goals completely. For example,
alternative 7 likely best satisfied the traffic goals, but it was costly and
failed to conform to local planning specifications. Alternatives 3, 4 and 6 each had advantages
from an environmental and traffic standpoint, although none were consistent
with local planning and none reached the Level of Service C goal. Alternative 1C Modified meet [sic] the traffic goals, but was arguably
less attractive from an environmental standpoint--even though these concerns
were assuaged by the mitigation plans adopted.
These proposals span the spectrum of ‘reasonable’ alternatives and
satisfied the requirements of the National Environmental Policy Act.” (Ibid.)
Thus, in City of Carmel-by-the-Sea v. U.S. Dept. of
Trans., supra, 123 F.3d 1142, the
court concluded the EIR contained sufficient alternatives to the project
notwithstanding the fact none of the alternatives fulfilled all of the project
goals completely.
In
Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th
477, the petitioners challenged the alternatives analysis for a planned,
96-unit condominium project with two buildings and a density of 28.3 units per
acre. (Id. at p. 485.) The final EIR analyzed a no action alternative
and three others, “two single-family residential developments and a
single-structure, multi-residential development.” (Id. at p. 488.) The petitioners argued the alternatives
analysis was flawed because the alternatives considered were not feasible. Those alternatives provided lower density,
whereas the primary objective of the project was to provide high-density
housing. (Id. at pp.
488-489.)
The
Court of Appeal found the mismatch between the alternatives included in the EIR and the project’s primary objective
was not a problem, explaining:
“Admittedly, the primary objective of the project is to provide
high-density housing consistent with existing planning goals; however, other
objectives include developing a vacant area that is highly visible and
historically disturbed in a manner that is sensitive to surrounding
developments, the natural habitat and open space associated with the river,
thereby providing a valuable addition to the downtown area. While these alternatives do not meet the
primary development objective of providing high-density housing, they do
satisfy all the secondary project objectives.
This is sufficient because alternatives need not satisfy all project
objectives, they must merely meet ‘most’ of them. (CEQA Guidelines, § 15126.6, subd.
(a).)” (Mira Mar Mobile Community v.
City of Oceanside, supra, 119 Cal.App.4th at p. 489.)
In Mira Mar Mobile Community v. City of
Oceanside, supra, 119 Cal.App.4th
477, the court concluded the EIR contained feasible alternatives even though the
alternatives did not meet the primary
objective of the project.
As
discussed earlier, the present matter involves the future allocation of the
State’s water. New water sources must be
obtained and/or demand reduced. When
there is insufficient water to meet all projected beneficial uses, choices must
be made. To provide more water for
in-stream uses, for the creation of wetlands or for export to Southern California, it may be necessary to take water
from somewhere else. One solution may be
to create new water storage facilities.
However, as explained earlier in connection with the failure of the
PEIS/R to discuss impacts from the potential sources of Program water, this is
a solution not necessarily welcomed by everyone.
In
order to meet the water supply reliability objective of the Program, all of the
alternatives proposed in the PEIS/R call for increased exports of water to
areas south of the Delta, or at least no reduction in the amount of water
exported. Because the PEIS/R does not
specify the source of water for the Program, it is uncertain where the water
will come from to meet this commitment.
In order to supply water south of the Delta, it may be necessary to take
water from other beneficial users, such as farmers, or to build new storage
facilities. However, a reasonable
alternative to this approach would be to reduce the amount of water exported
south of the Delta, thereby reducing the amount of water that must be
redirected from other users or impounded in new or existing reservoirs. Although such an alternative would not
completely satisfy the CALFED goal of reducing the mismatch between Bay-Delta
water supplies and beneficial uses, it could satisfy the other Program
goals.
The
feasibility of such a reduced exports alternative is clear, notwithstanding the
projected population growth that undergirds the commitment not to reduce
exports. As stated previously, it is
projected that the state’s population will grow from 30 to 49 million by the
year 2020, and that half of this growth will be in Southern California.
Such population growth requires water.
However, if there is no water to support the growth, will it occur as
projected? Population growth is not an
immutable fact of life. Stable populations
have been established in such states as New York, Pennsylvania, Connecticut, and Rhode Island.
(Carle, supra, at p.
196.) Inflow of new residents to California continues to exceed outflow because
conditions in the State are conducive to population growth. One aspect of these conditions is the
availability of water. However, as the
State reaches the limit of available water and must seek other sources such as
desalination, water will become more expensive to obtain and California’s appeal will lessen.
Years
ago some argued that people should follow the water, not vice versa. While it is not the function of this Court to
advocate one position or the other, this argument nevertheless points out a
glaring defect in the PEIS/R. CALFED
conducted its environmental analysis by assuming certain population growth in
the State over the next 15 years and then finding ways to provide water to that
population. But CALFED appears not to
have considered, as an alternative, smaller water exports from the Bay-Delta
region which might, in turn, lead to smaller population growth due to the
unavailability of water to support such growth.
Taking an assumed population as a given and then finding ways to provide
water to that population overlooked an alternative that would provide less
water for population growth leaving more for other beneficial uses. CALFED apparently assumed that the California
population would grow as projected regardless of the availability of water and
did not consider whether, if less water was supplied, population growth would
be affected accordingly, leading to less demand.
An
EIR is required to provide a range of
alternatives necessary to permit a reasoned choice. (Guidelines, § 15126.6, subd. (f).) “A major function of the EIR is to ensure thorough assessment of
all reasonable alternatives to proposed projects by those responsible for the
decision.” (Kings County Farm Bureau
v. City of Hanford, supra, 221
Cal.App.3d at p. 733; see also County of Inyo v. City of Los Angeles,
supra, 71 Cal.App.3d at p. 203.) In this instance, a reasonable choice would
be between (1) diverting more water south of the Delta by redirecting water
from other users or creating new water storage and (2) diverting less water
south of the Delta, thereby lessening or eliminating the need for redirection
or new storage.
The
California Supreme Court has stated that “an EIR for any project subject to CEQA
review must consider a reasonable range of alternatives to the project, or to
the location of the project, which: (1)
offer substantial environmental advantages over the project proposal (Pub.
Resources Code, § 21002); and (2) may be ‘feasibly accomplished in a
successful manner’ considering the economic, environmental, social and
technological factors involved. (Pub.
Resources Code, § 21061.1 . . . .)” (Citizens
of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 566, italics omitted.) An alternative with reduced exports of water
may well be environmentally superior to one that requires redirection of water
from existing streams or construction or expansion of water storage
facilities. Water exported south of the
Delta must come from sources flowing into the Delta. Where one of the objectives of the ecosystem
restoration component of the Program is to increase stream flows for the
benefit of fish and wildlife, an alternative that does not require diversion of
stream flows into the Delta would obviously benefit the environment. And, for the reasons stated earlier, an
alternative that does not require construction or expansion of reservoirs will
avoid the negative environmental impacts of dam construction.
An
alternative with reduced exports would also appear to be feasible, at least in
the long term as population growth adjusts to the new realities of water
availability. Although such alternative
would not completely satisfy the water allocation objective of the Program, it
could satisfy other objectives.
Those
deciding the future of this state to the extent it depends upon the allocation
of its most precious resource should be presented with all available
choices. The PEIS/R should have included
an alternative that assumed reduced water exports from the Bay-Delta region.
E. The PEIS/R’s Analysis of Mitigation
Measures
1. Introduction
The Farm
Bureau challenges the adequacy of the PEIS/R’s mitigation measures as they
relate to impacts on agricultural resources.
A public
agency that carries out or approves a project having significant environmental
impacts must mitigate or avoid those impacts whenever feasible. (Pub. Resources Code, § 21002.1, subd.
(b); see also Guidelines, § 15021, subd. (a)(2).) Upon identification of significant
environmental effects of a project, approval must be preceded by an EIR that includes one or more of the
following findings: “(1) Changes or
alterations have been required in, or incorporated into, the project which
mitigate or avoid the significant effects on the environment. [¶] . . . [¶] (3) Specific economic, legal, social,
technological, or other considerations including considerations for the
provision of employment opportunities for highly trained workers, make
infeasible the mitigation measures or alternatives identified in the [EIR].”
(Pub. Resources Code, § 21081.)
These findings must be accompanied by supporting facts. (Rio Vista, supra, 5 Cal.App.4th at p. 374.)
The
substantial evidence test applies to the adequacy of an EIR’s discussion of mitigation
measures. (See Sacramento Old City
Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 (hereafter Sacramento Old City Assn.).) Our role “is not to determine the correctness
of the findings on mitigation of environmental effects, but only to assess
‘whether they are supported by substantial
evidence . . . .’
[Citation.] We must ‘consider the
evidence as a whole’; that a discussion of mitigation measures is ‘imperfect in
various particulars does not necessarily mean it is inadequate.’” (Rio Vista, supra, 5 Cal.App.4th at p. 381.)
2. Mitigation Measures Included in the
PEIS/R
If an
activity being evaluated is a program, the mitigation measures may consist of
policy statements included in the program that will serve to guide
project-specific mitigation in the future.
(See Guidelines, § 15126.4,
subd. (a).) Hence, the PEIS/R
here does not include specific mitigation measures for particular impacts. It states:
“Because this Programmatic EIS/EIR does not evaluate site-specific
actions, no specific mitigation measures are presented. Instead, general mitigation strategies are
identified as ways to avoid, minimize, restore, or compensate for potentially
significant adverse impacts. For some
resources, specific mitigation measures are provided as examples to display the
array of techniques available in order to carry out the strategy. For example, construction activities can
cause erosion of soils that leads to adverse impacts on water quality. A mitigation strategy would be to avoid and
minimize the impact. Mitigation measures
available to carry out this strategy include conducting work during dry periods
and using erosion-control fencing or straw bales, water detention basins, and
so forth.”
In
connection with the significant impacts to agricultural resources, the PEIS/R
lists the following 31 general mitigation measures:
“1. Site and align Program features to avoid or
minimize effects on agriculture.
“2. Examine structural and nonstructural
alternatives to achieve project goals in order to avoid effects on agricultural
land.
“3. Implement features that are consistent with
local and regional land use plans.
“4. Involve all affected parties, especially
landowners and local communities, in developing appropriate configurations to
achieve the optimal balance between resource effects and benefits.
“5. Retain water allocations from retired
drainage-impaired lands within existing water districts.
“6. Support the testing and application of
alternative crops to idled farmland (for example, agroforestry or energy
crops).
“7. Provide water supply reliability benefits to
agricultural water users.
“8. Support the California Farmland Conservancy
Program in acquiring easements on agricultural land in order to prevent its
conversion to urbanized uses and increase farm viability. Focus on lands in proximity to where any
conversion effect takes place.
“9. Restore existing degraded habitat as a
priority before converting agricultural land.
“10. Focus habitat restoration efforts on
developing new habitat on public lands before converting agricultural land.
“11. If public lands are not available for
restoration efforts, focus restoration efforts on acquiring lands that can meet
ecosystem restoration goals from willing sellers where at least part of the
reason to sell is an economic hardship (for example, lands that flood
frequently or where levees are too expensive to maintain).
“12. Use farmer-initiated and developed
restoration and conservation projects as a means of reaching Program goals.
“13. Where small parcels of land need to be
acquired for waterside habitat, seek out points of land on islands where the
ratio of levee miles to acres farmed is high.
“14. Obtain easements on existing agricultural
land for minor changes in agricultural practices (such as flooding rice fields
after harvest) that would increase the value of the agricultural crop(s) to
wildlife.
“15. Include provisions in floodplain restoration
efforts for compatible agricultural practices.
“16. Purchase water for habitat purposes so that
the same locality is not affected over the long term.
“17. Use a planned or phased habitat development
approach in concert with adaptive management.
“18. Minimize the amount of water supply required
to sustain habitat restoration acreage.
“19. Develop buffers and other tangible support
for remaining agricultural lands. Vegetation
planted on these buffers should be compatible with farming and habitat
objectives.
“20. In implementing levee reconstruction
measures, work with landowners to establish levee reconstruction methods that
avoid or minimize the use of agricultural land.
“21. Work with landowners to establish levee
subsidence [best management practices] that avoid effects on land use
practices. Through adaptive management,
further modify [best management practices] to reduce effects on agricultural
land.
“22. Implement erosion control measures to the
extent possible during and after project construction activities. These erosion control measures can include
grading the site to avoid acceleration and concentration of overland flows,
using silt fences or hay bales to trap sediment, and revegetation areas with
native riparian plants and wet meadow grasses.
“23. Protect exposed soils with mulches,
geotextiles, and vegetative ground covers to the extent possible during and
after project construction activities in order to minimize soil loss.
“24. Use rotational fallowing to reduce selenium
drainage.
“25. When it appears that land within an
agricultural preserve may be acquired from a willing seller by a State CALFED
agency for a public improvement as used in Government Code Section 51920,
advise the Director of Conservation and the local governing body responsible
for the administration of the preserve of the proposal.
“26. Limit the number of acres that can be
fallowed (in order to produce transferable water) in a given area (district or
county) or the amount of water that can be transferred from a given area.
“27. Support assistance programs to aid local
entities in developing and implementing groundwater management programs in
water transfer source areas.
“28. Dredged materials will be analyzed, dredged
and handled in accordance with permit requirements. Permits will incorporate mitigation
strategies identified in Section 5.3 to prevent release of contaminants of
concern.
“29. Utilize the criteria and objectives in the
Water Transfer Program, in conjunction with existing legal constraints on water
transfers, to protect against adverse effects due to water transfers. The criteria for future water transfer
proposals include:
“Water
transfers must be voluntary.
“Water
market transactions must result in the transfer or exchange of water that truly
increases the utility of the supply, not water that a transferor has never used
or water that would have been legally available for downstream use in the
absence of a transfer.
“Water
rights of all legal water users must not be impaired.
“Transfers
must not cause overdraft or degradation of groundwater basins, or impair
correlative rights of overlying users.
“Entities
receiving transferred water should be required to show that they are making
efficient use of existing water supplies.
“Water
rights holders (whether districts or individuals) must play a strong role in
determining whether water to which they have a right is transferred.
“The
beneficial and adverse impacts on fiscal integrity of the districts and on the
economy of agricultural communities in source and receiving areas cannot be
ignored.
“30. Implement seepage control measures.
“31. Support local groundwater management that
reduces overdraft and third-party effects, including reduction or
discontinuation of groundwater pumping.”
The various
agencies that signed the ROD committed to adopting specific mitigation measures
in connection with projects undertaken under the Program. The ROD states: “Projects and activities that implement the
CALFED Preferred Program Alternative will be monitored to ensure that
mitigation strategies developed in the Final Programmatic EIS/EIR are considered, adopted and
implemented.”
The Farm
Bureau contends the mitigation measures included in the PEIS/R for agricultural
impacts are inadequate because CALFED failed to specify performance standards
to ensure that any of the proposed measures will be undertaken at the project
level. The Farm Bureau cites Guidelines
section 15126.4, subdivision (a)(1)(B), which states in relevant
part: “Formulation of mitigation
measures should not be deferred until some future time. However, measures may specify performance
standards which would mitigate the significant effect of the project and which
may be accomplished in more than one specified way.”
The trial
court rejected the Farm Bureau’s contention, explaining: “The EIR does not improperly defer
mitigation as alleged by the petitioners.
CEQA only requires feasible mitigation measures. While site-specific mitigation measures may
be required when a particular parcel is acquired for a water storage project,
general mitigation strategies are reasonable and appropriate for a programmatic
EIR.
These strategies can be tailored later to the circumstances of future
specific land conversions. Detailed
mitigation measures are often infeasible, wasteful of resources, and not
especially illuminating in the context of a general program or plan.” (Fns. omitted.)
We agree with the trial court. In Sacramento Old City Assn., supra, 229 Cal.App.3d 1011, this court
considered a development project in a downtown area that would have adverse
impacts on parking availability. (Id.
at p. 1020.) The EIR for the project did not include specific
mitigation measures. Instead, it
required preparation of a “Transportation Management Plan (TMP) to reduce project-related traffic
and parking impacts,” and listed potential mitigation measures. The draft EIR stated: “Mitigation measures to reduce projected
parking impacts have been developed with the overall goal being an overall area
parking utilization rate of 90 percent during the critical weekday afternoon
period.” (Id. at p. 1021.) The draft EIR then listed potential
mitigation measures, including “Limit the Size of ‘Short-Term’ Weekday Events,”
“Provide Satellite Parking,” “Promote Alternative Transportation Modes for
Attendees,” and “Construct Additional Parking.”
(Id. at pp. 1021-1022.)
We found the mitigation measures
sufficient under the circumstances, explaining:
“[F]or kinds of impacts for which mitigation is known to be feasible,
but where practical considerations prohibit devising such measures early in the
planning process (e.g., at the general plan amendment or rezone state), the
agency can commit itself to eventually devising measures that will satisfy
specific performance criteria articulated at the time of project approval. Where future action to carry a project
forward is contingent on devising means to satisfy such criteria, the agency
should be able to rely on its commitment as evidence that significant impacts
will in fact be mitigated.” (Sacramento
Old City Assn., supra, 229
Cal.App.3d at pp. 1028-1029.)
The Farm Bureau contends reliance on
Sacramento Old City Assn. is
misplaced, because the general mitigation measures adopted there contained a
performance standard--that the overall level of parking utilization not exceed
90 percent. However, this supposed
performance standard was not the basis for our decision to uphold the EIR.
We were persuaded instead by the breadth of the potential mitigation
measures proposed. As we explained: “The City in the present case has
. . . committed itself to mitigating the impacts of parking and
traffic. The City approved funds for a
major study of downtown transportation.
[¶] The draft EIR discussed several options for
mitigating the parking problem. The EIR section on mitigation noted: ‘Impacts to area parking conditions could be
partially mitigated by redesigning the project to provide on-site parking or by
constructing additional parking in the study area which would be designated for
Convention Center attendees. The Downtown Sacramento Parking Study
(Wilbur Smith Associates 1/88) notes a proposal to expand Lot E (12th & I)
to provide 381 spaces, and describes the East End Garage (1,058 spaces on I
Street between 10th and 11th). Both
projects would be available to the general public but could be designated for
Convention Center use in order to accommodate large concurrent events. The study also describes development of a Lot
C structure, which could provide a net increase of 733 spaces on H Street
between 14th and 15th Street. In
addition, the recently completed Hyatt Regency Ho[t]el is intended to provide
some public parking. This additional
parking was not included in the demand analysis.’” (Sacramento Old City Assn., supra, 229 Cal.App.3d at p. 1029.)
In Rio Vista, supra, 5 Cal.App.4th 351, the public agency adopted a hazardous
waste disposal plan that contained a siting analysis for treatment, storage and
disposal facilities and designated general areas within the county that met the
siting criteria. (Id. at p.
364.) The EIR prepared for the plan indicated
that “each specific facility may have different potential consequences, such
that specific irreversible impacts and mitigation measures are more
appropriately discussed in ‘future CEQA documents for any proposed
facility.’” (Id. at p. 367.)
The Court
of Appeal approved the EIR despite the absence of specific mitigation measures, “given
the broad, nebulous scope of the project under evaluation.” (Rio
Vista, supra, 5 Cal.App.4th at p.
376.) The court explained: “The general statement of mitigation measures
in the [final program EIR] is consistent with the general nature of the Plan. Any further and more detailed statement of
mitigation measures at this formative stage in the County’s hazardous waste
disposal plan would have been neither reasonably feasible nor particularly
illuminating.” (Id. at p. 377.) The court
continued: “[W]e find significant
respondent’s adoption of the siting criteria and other mitigation measures to
be applied to any future projects. Under
the Plan, for those mitigation measures which the County cannot presently
formulate precisely absent a proposal for a specific facility, a firm
commitment has been made to future mitigation of significant impacts.” (Ibid.) Finally, the court said: “Any vagueness or perceived inconsistency in
the mitigation measures described in the [final program EIR] is, we find, inherent in the
discussion of general, countywide impacts in a planning program which has not
approved a particular site or facility for development. Thus, many specific mitigation measures can
only be ‘recommended’ until a specific facility is proposed. The generic description of mitigation
measures and alternatives is, in our view, appropriate to the present,
preliminary status of the hazardous waste management and disposal program
represented by the Plan.” (Id. at
p. 381.)
The Farm
Bureau contends the inadequacy of the mitigation measures for agricultural
resources in the present matter is highlighted by a comparison with the
mitigation measures adopted for impacts to vegetation and wildlife. Those measures contain a number of
requirements for replacement and repair of habitat taken for Program
purposes. For example, mitigation
measure No. 2 for vegetation and wildlife reads: “Restore and enhance sufficient in-kind
wetland and riparian habitat or rare natural communities and significant
natural areas at offsite locations (near project sites) before or at the time
that project impacts are incurred.
Replace not only acreage lost, but also habitat value loss.” Mitigation measure No. 27 reads: “Restore riparian vegetation disturbed by
on-site construction activities immediately following construction.”
The State
contends the mitigation strategies for impacts to vegetation and wildlife are
similar to those for impacts to agricultural land. According to the State, mitigation measures
for both types of resources include compensation at off-site locations as a
potential strategy for second-tier projects.
We disagree. As indicated,
mitigation measures for the loss of wildlife habitat include repair or
replacement of all habitat lost. No such
mitigation measure exists for agriculture resources. The closest measure is No. 8, which
reads: “Support the California Farmland
Conservancy Program in acquiring easements on agricultural land in order to
prevent its conversion to urbanized uses and increase farm viability. Focus on lands in proximity to where any
conversion effect takes place.” This is
not a commitment to repair or replace agricultural land lost to the
Program. The mitigation measures for
vegetation and wildlife contain more than a dozen measures that require
restoration of habitat.
The State
further contends restoration of vegetation and wildlife habitat is supported by
state and federal law. Among other
things, the State cites Fish and Game Code section 1301, which states: “[I]t is the policy of the State to acquire
and restore to the highest possible level, and maintain in a state of high
productivity, those areas that can be most successfully used to sustain
wildlife and which will provide adequate and suitable recreation.” While the State acknowledges that other laws
provide for the protection of agricultural land (see, e.g., Pub. Resources
Code, §§ 10201, subd. (d), 10202; Food & Agr. Code, § 821), it
argues that specific statutes direct how species policies shall be implemented
but no comparable statutes exist for farmland.
Regardless
of whether state and federal law is more protective of wildlife habitat than
agricultural land, the overall objectives of the CALFED Program support the
greater protection afforded to vegetation and wildlife habitat reflected in the
mitigation measures. Because one of the
objectives of the Program is to restore vegetation and wildlife habitat lost
over many years of urban and agricultural development, it should come as no
surprise that repair or replacement of such habitat destroyed in pursuit of the
Program would be adopted as a mitigation measure just to maintain the status
quo.
The same
cannot be said of agricultural resources.
As stated in the PEIS/R, and as we shall discuss later, a requirement to
replace all agricultural resources lost in pursuit of the Program is not
feasible at the programmatic level. The
determination of whether such resources can be replaced or protected must await
a specific project. Thus, the Farm
Bureau’s comparison of mitigation measures for agricultural resources and those
for vegetation and wildlife habitat is not apt.
The Farm
Bureau contends the real reason mitigation measures for agricultural resources
are not as protective as those for vegetation and wildlife habitat is not that
the Program was designed to protect the latter but because the State Resources
Agency was concerned with the cost of replacing agricultural resources. The Farm Bureau cites an issue paper prepared
by CALFED staff that states: “If
agricultural resource mitigation was incorporated as part of the CALFED
Program, it would make land and water acquisition for fish and wildlife
purposes, to the extent presumed to be required, too expensive.”
The Farm
Bureau cites nothing to suggest this issue paper, which may represent the
opinion of only one staff member, became the official position of CALFED or
otherwise informed the mitigation measures adopted. At any rate, the opinion does not overshadow
the obvious differences between the two types of resources in light of the
Program’s purposes.
3. The Necessity for a Mitigation Measure
that
Prohibits
the Use of Categorical Exemptions
The Farm
Bureau contends the PEIS/R should have included a mitigation measure prohibiting
the use of categorical exemptions for the conversion of agricultural land to
habitat. In the alternative, the Farm
Bureau argues the PEIS/R should have disclosed whether or not categorical
exemptions will be used. The Farm Bureau
asserts that, because the mitigation measures adopted in the PEIS/R are only
proposals to be considered at the project level, the use of categorical
exemptions at the project level will mean those mitigation measures will never
be implemented.
Public Resources Code section 21084,
subdivision (a) requires the Secretary of the State Resources Agency to adopt
“a list of classes of projects which have been determined not to have a
significant effect on the environment and which shall be exempt” from CEQA. “Pursuant to this authority, the secretary
has created 29 classes of ‘categorical exemptions,’ which are set forth in the
CEQA guidelines.” (Dunn-Edwards Corp.
v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 653,
disapproved on other grounds in Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576, fn. 6.)
The trial court concluded the
adoption of a mitigation measure prohibiting the use of categorical exemptions
“would have been infeasible and futile since the Resources Agency does not have
legal authority over all other agencies participating in the CALFED
program.” But the same can be said about
any of the mitigation measures included in the PEIS/R. To adopt this reasoning would mean no
mitigation measure could ever be adopted in a programmatic EIR that governs the operation of
individual projects involving multiple agencies. However, the agencies that signed the ROD
committed to the terms of the Program, including mitigation measures. The law requires nothing more.
The Farm
Bureau argues CALFED believes conversion of agricultural land to habitat is
subject to both class 13 and class 17 exemptions. The Farm Bureau requests that we take
judicial notice of the briefs filed by the parties and the ruling of the court
in an unrelated action in which the State asserted a class 13 exemption for the
creation of a conservation easement over agricultural land. We grant the request. The Farm Bureau also requests we take
judicial notice that the State “is taking the position in court that projects that convert agricultural land to habitat
are exempt from CEQA review.” We deny
this request, as the indicated fact is not a proper subject of judicial
notice.
“Class 13
consists of the acquisition of lands for fish and wildlife conservation
purposes including (a) preservation of fish and wildlife habitat, (b)
establishing ecological reserves under Fish and Game Code Section 1580, and (c)
preserving access to public lands and waters where the purpose of the
acquisition is to preserve the land in its natural condition.” (Guidelines, § 15313.) The Farm Bureau argues this exemption applies
only to the preservation of wildlife habitat in its natural condition, not the
conversion to habitat of land being used for other purposes.
“Class 17
consists of the establishment of agricultural preserves, the making and
renewing of open space contracts under the Williamson Act, or the acceptance of
easements or fee interests in order to maintain the open space character of the
area. The cancellation of such
preserves, contracts, interests, or easements is not included and will normally
be an action subject to the CEQA process.”
(Guidelines, § 15317.) The
Farm Bureau argues this exemption applies only to the establishment of
agricultural preserves, Williamson Act contracts, or the acceptance of
easements, not the conversion of agricultural land to habitat.
Regardless
of whether the two indicated exemptions apply to the conversion of agricultural
land to habitat, no exemption applies to a project that has significant
environmental impacts. Guidelines
section 15300.2, subdivision (c) states:
“A categorical exemption shall not be used for an activity where there
is a reasonable possibility that the activity will have a significant effect on
the environment due to unusual circumstances.”
Thus, the PEIS/R need not state that categorical exemptions do not
apply. If there is a reasonable
possibility that a project will have a significant effect on the environment,
whether individually or cumulatively, any categorical exemption that might
otherwise apply cannot be used. This
must be determined on a project-by-project basis.
Finally, as
to the Farm Bureau’s argument that the PEIS/R should have disclosed whether or
not categorical exemptions would be used, this assumes that the answer is “yes”
or “no.” However, as we have indicated,
the answer is “maybe.” The determination
must be made on a project-by-project basis.
We see no reason why the PEIS/R should disclose that the affected
agencies will follow the law in this regard.
4. The Necessity for a Mitigation Measure
Requiring
the
Proportional Replacement of Agricultural Land
On April 8, 1999, CDFA proposed that the following mitigation measure be
included in the PEIS/R: “If CALFED
acquires prime or unique farmland, or farmland of statewide importance for
non-agricultural use, a proportionate area of analogous land in proximity shall
be preserved in agricultural use in perpetuity by easement or other
method.” The mitigation measure is not
included in the final PEIS/R. The ROD
states: “Protection of off-site lands to
mitigate conversions of farmlands is addressed in mitigation strategy 8 of
Section 7.1 [support for the California Farmland Conservancy Program]. However, the exact amounts to be protected
would depend on the project specific effects of conversion, as measured in the
second-tier environmental document. The
feasibility of this mitigation strategy would also need to be evaluated at the
project-specific level, and would depend on the number of voluntary
participants in the easement program and the cost of acquiring the
easements. . . . At a
programmatic level, the feasibility of this measure is too uncertain. This mitigation measure is therefore not
adopted for technical and administrative considerations.”
The Farm
Bureau contends the record does not support CALFED’s determination that
proportional protection of farmland is infeasible. In its trial brief on CEQA issues, the State
cited six documents that purportedly support the rejection of a “mandatory
replacement ratio for every acre of converted agricultural
land . . . .”
However, at most, these documents support a conclusion that the creation
of new farmland to replace that converted for Program uses would be costly, but
not necessarily infeasible.
The
CDFA-proposed mitigation measure is different.
CDFA did not suggest replacement of all converted agricultural
acres but protection of a like number of acres. Thus, the cost of creating new irrigated
farmland is irrelevant. The question is
whether obtaining easements or similar protection over existing farmland is
feasible.
Initially,
the State argues the Farm Bureau has forfeited its argument in support of the
mitigation measure proposed by CDWA by failing to cite CALFED’s findings
pertinent to that proposed measure. The
State cites City of Lomita v. City of Torrance, supra, 148
Cal.App.3d 1062, where the court indicated Lomita’s claim that the mitigation
measures “were not properly identified nor adequately analyzed” was
insufficient because Lomita failed to explain “in what fashion or to what
extent this is true” and failed to state “what was included on this point so as to demonstrate its
inadequacy.” (Id. at p.
1070.)
Here,
however, the Farm Bureau identified the mitigation measure proposed by CDFA,
and indicated this measure was not adopted in the PEIS/R. The Farm Bureau cited the evidence relied
upon by the State below to support rejection of the mitigation measure. The Farm Bureau need do nothing more to raise
the issue on appeal.
The State
contends CALFED did in fact adopt a mitigation measure to preserve agricultural
land through conservation easements. The
State cites measure No. 8, which, as previously noted, reads: “Support the California Farmland Conservancy
Program in acquiring easements on agricultural land in order to prevent its
conversion to urbanized uses and increase farm viability. Focus on lands in proximity to where any
conversion effect takes place.”
According to the State, “[t]his measure would provide funding to the
Department of Conservation to obtain easements through its existing program and
administrative structure, focusing on lands threatened with urbanization in
proximity to where a CALFED project would take place.”
We cannot agree
that this is a mitigation measure to preserve agricultural land through the use
of easements. A mitigation measure that
encourages support for the California Conservancy Program in acquiring
agricultural easements is a far cry from a measure that requires easements to
be obtained over an amount of land equal to that converted under the
Program. The one requires some type of
effort to achieve a favorable result, while the other requires the actual
result.
Next, the
State argues CALFED properly rejected a “no net loss” policy for agricultural
land as infeasible. The ROD states: “Protection of off-site lands to mitigate
conversions of farmlands is addressed in adopted mitigation strategy 8 of
Section 7.1. However, the exact amounts
to be protected would depend on the project-specific impacts of conversion, as
measured in the second-tier environmental document. The feasibility of this mitigation strategy
would also need to be evaluated at the project-specific level, and would depend
on the number of voluntary participants in the easement program and the cost of
acquiring the easements. At a
programmatic level, the feasibility of this measure is too uncertain. This mitigation measure is therefore rejected
for technical and economic considerations.”
The Farm
Bureau responds by arguing the State is judicially estopped from claiming a
mitigation measure requiring one-for-one easements for agricultural conversion
is infeasible. The Farm Bureau asserts
the State took an inconsistent position in another case involving a development
project in the City of Elk Grove, where the State argued easements could be
obtained as a means of mitigating the loss of agricultural land.
“Judicial
estoppel is an equitable doctrine aimed at preventing fraud on the courts. It is applied to keep litigants from playing
‘fast and loose with the court.’” (In re Marriage of Dekker (1993) 17
Cal.App.4th 842, 850.) Judicial estoppel
may arise where a party takes advantage of certain self-serving averments or
conduct in one court proceeding and then later attempts to contradict himself
in another. (See In re Marriage of Toth (1974) 38 Cal.App.3d 205, 212.) Judicial estoppel applies when: “(1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative
proceedings; (3) the party was successful in asserting the first position
(i.e., the tribunal adopted the position or accepted it as true); (4) the two
positions are totally inconsistent; and (5) the first position was not taken as
a result of ignorance, fraud or mistake.”
(Jackson v. County of Los Angeles
(1997) 60 Cal.App.4th 171, 183.)
“Judicial estoppel is an extraordinary remedy that should be applied
with caution.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th
590, 598.)
The Farm
Bureau contends all five requirements for judicial estoppel are met here. We disagree.
In order for the fourth requirement (inconsistent positions) to apply,
“seemingly conflicting positions ‘must be clearly inconsistent so that one
necessarily excludes the other.’” (Jackson
v. County of Los Angeles, supra,
60 Cal.App.4th at p. 182.) The position
taken by the State in the Elk Grove case was that an easement was a feasible
mitigation measure for the conversion of 295 acres of mainly agricultural land
in the area of the proposed project. In
the present matter, the State does not argue easements cannot be used to
mitigate agricultural land conversions.
On the contrary, mitigation measure No. 8 encourages the use of easements. In the present matter, CALFED concluded a
mitigation measure requiring one-for-one easements for the entire CALFED
Program is not feasible. In other words,
while a particular agricultural conversion might be mitigated by the use of an
agricultural easement, it is not feasible to require this mitigation method for
all agricultural conversions ultimately required by the Program. This is a different issue from that presented
in the City of Elk Grove case and, therefore, judicial estoppel is inapplicable.
The State
argues CALFED properly concluded the use of agricultural easements must be
determined on a project-by-project basis and cannot be mandated at the program
level. According to the State, the
ability to use easements will depend on such circumstances as the size and
location of the agricultural conversion.
Thus, only a mitigation measure encouraging the use of agricultural
easements, as in measure No. 8, is appropriate at the programmatic level. Furthermore, the State argues, because agricultural
land is in private hands, the ability to use agricultural easements will depend
on willing landowners. And, the cost of
agricultural easements in a given case may be prohibitive. The record contains evidence suggesting the
cost of an agricultural easement near an urban area may be close to the value
of a fee interest in the property.
We agree
with the State. It is impossible at the
programmatic level to mandate that agricultural easements be obtained on a
one-for-one basis for all agricultural acres converted to Program uses. Such a determination must be made on a
project-by-project basis. Furthermore,
the use of agricultural easements is not true mitigation, in the sense of
reducing the adverse impact of Program actions.
An easement only guarantees the use of existing agricultural land for
agricultural purposes; it does not replace the agricultural land converted to
other uses. In other words, use of an
easement does nothing to mitigate the existing conversion. It only helps to avoid future
conversions. By contrast, the mitigation
measures proposed in the PEIS/R, such as siting Program features to reduce
harms to agriculture, restoring existing degraded habitat before creating new
habitat, using public lands wherever possible, and using easements to modify
agricultural practices while leaving land in agricultural production, are
designed to minimize the amount of agricultural land lost in the first
place. For all of these reasons, we must
reject the arguments that a mitigation measure calling for a proportional
replacement of agricultural lands was necessary to the PEIS/R.
5. The Necessity for a Mitigation Measure
Establishing
an Agricultural Water Account
The Farm
Bureau contends the State Resources Agency arbitrarily determined it is
unnecessary to adopt a mitigation measure for the loss of agricultural
water. CDFA proposed: “To the extent that CALFED actions result in
any increase in water demand, CALFED shall develop the water supply necessary
to meet that demand from mechanisms other than the permanent redirection of
existing agricultural water supplies.”
CDFA further proposed: “CALFED
will establish an Agricultural Water Account (AWA), similar in concept to the
[EWA]. The CALFED policy shall be that a
portion of any newly developed CALFED water supply is identified as
agricultural mitigation water, based on the amount of agricultural water
redirected to other uses as a result of CALFED actions.”
CALFED
concluded mitigation of agricultural water conversions is unnecessary. In the responses to comments, the PEIS/R
states: “[A] change in the use of water
by itself is not a significant environmental impact requiring mitigation.” The ROD provides: “While the CALFED Program does not include an
Agricultural Water Account, the water supply reliability actions as outlined in
Sections 2.2.4 and 2.2.5 of the ROD are intended to provide greater certainty
of water supplies for agricultural and other users.”
We note
that the PEIS/R’s assertion that a change in water use is not a significant
impact is incorrect. As discussed
earlier, a change in the use of water can result in a significant
environmental impact, depending on the circumstances. (See County of Amador v. El Dorado County
Water Agency, supra, 76 Cal.App.4th at pp. 967-968.)
The Farm
Bureau argues there is no evidence to support the conclusion that the Program’s
redirection of agricultural water to other uses will result in no adverse
impacts to agriculture. The State
disagrees and argues “[t]he Resources Agency specifically found that the CALFED
plan would have beneficial impacts on water supply reliability.” The ROD states: “Based on the use of alternative water
management tools, including water use efficiency measures, water recycling, and
water transfers, as well as conveyance improvements, the [EWA], and new
storage, the Preferred Program Alternative will improve water supply
reliability and water management flexibility.”
Elsewhere, the ROD states:
“Compared to the No Action Alternative and existing conditions, the
Preferred Program Alternative provides significant improvements in terms of its
ecosystem quality, water quality, water supply reliability, and levee system
integrity effects.”
However, it
cannot be assumed CALFED’s general determination that the Program will improve
water supply reliability was intended to apply to each resource area, including
agriculture. On the contrary, the PEIS/R
states “a change in the use of water by itself is not a significant environmental
impact requiring mitigation.” Thus,
based on this assertion, there was no occasion for CALFED to assess whether the
redirection of water from one resource area to another would cause an adverse
impact. At any rate, CALFED’s bare
assertion of no adverse impact will not suffice. “To facilitate CEQA’s informational role, the
EIR must contain facts and analysis,
not just the agency’s bare conclusions or opinions.” (Concerned
Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., supra, 42 Cal.3d at p. 935.)
The State
next argues the Farm Bureau incorrectly assumes the redirection of water from
agriculture to other uses necessarily creates an adverse impact to
agriculture. The State cites portions of
the PEIS/R which, it asserts, show that various Program features will be beneficial
to agriculture. However, other
provisions show there may be a detriment to agriculture from water use changes
in some regions.
But all of
this is beside the point. As indicated
earlier, the PEIS/R fails to specify the source for water needed by the
Program. Without knowing the source, it
is impossible to determine what effects changes in water use occasioned by the
Program will have on agriculture. Hence,
any consideration of whether CALFED should be required to devise a mitigation
measure for adverse impacts to agriculture from water diversion is premature
and will have to depend on CALFED’s further consideration regarding the source
of water for the Program.
F. Improper Segmentation of the Program
Through Early
Implementation
Projects
The Bay-Delta Accord, adopted in
1994, “included a commitment by the agency and stakeholder signatories to
develop and fund non-flow-related ecosystem restoration actions to improve the
health of the Bay-Delta ecosystem. This
commitment is commonly referred to as ‘Category III.’”
“The[se] Category III actions were required to be consistent with any alternative
configuration and provide early implementation benefits.” To the extent the Category III projects result in the conversion
of agricultural resources to habitat, this is factored into the overall Program
goals discussed in the PEIS/R.
The Farm
Bureau contends CALFED improperly segmented the Program before adoption of the
PEIS/R, by approving and carrying out 22 early implementation projects that
converted more than 29,000 acres of farmland to other uses. These 22 projects include: “Liberty Island Acquisition--acquisition
and conversion of 4,760 acres of agricultural land in fee”; “Stone Lakes
National Wildlife Refuge Land Acquisition--acquisition and conversion of
658 acres of agricultural land in fee”; “Lower San Joaquin River Floodplain
Protection and Restoration Project--acquisition and conversion of 600 acres
of agricultural land in fee and 1,950 acres via easement”; and “Oakdale and
South San Joaquin Irrigation Districts--conversion of 50,000 acre-feet of
agricultural water . . . .”
Segmentation of a program is improper. (See Guidelines, § 15165.) “[P]ublic agencies shall not undertake
actions concerning the proposed public project that would have a significant
adverse effect or limit the choice of alternatives or mitigation measures,
before completion of CEQA compliance.”
(Guidelines, § 15004, subd. (b)(2).) Recognizing these limitations, CALFED
established five conditions for approval of early implementation projects. Such projects must: (1) “have appropriate environmental
documentation”; (2) “have no significant environmental impacts”; (3) “have no
significant adverse cumulative impacts”; (4) “not limit the choice of a
reasonable range of alternatives”; and (5) “not affect the selection of a
Preferred Program.”
The Farm
Bureau contends CALFED failed to satisfy these conditions. On the first condition, the Farm Bureau
argues none of the early implementation projects was preceded by environmental
documentation. On the second and third
conditions, the Farm Bureau argues CALFED concedes the conversion of
agricultural land is a significant impact and that the individual conversions
have cumulative impacts. As to the
fourth condition, the Farm Bureau argues that converting farmland prior to
approval of the Program precludes the possibility of considering an alternative
that preserves existing land uses.
Finally, on the fifth condition, the Farm Bureau points out that
CALFED’s rationale for going forward with the early implementation projects was
that those projects are consistent with the preferred program alternative. Hence, approval of those early projects
restricted CALFED to approval of the preferred program alternative.
The State
counters that the presence of environmental documentation for the early
implementation programs is not at issue.
The present matter concerns the adequacy of the PEIS/R, a document that
addresses environmental impacts of the Program as a whole, not individual
projects. At any rate, the State argues,
the early implementation projects were conditioned on compliance with
CEQA. The State further argues state
agencies only approved six of the 22 projects and approval of the early
implementation projects did not prejudice the environmental analysis or
preordain adoption of the preferred program alternative.
We agree
with the State that the present matter involves whether the PEIS/R complies
with CEQA, not whether the early implementation projects were conditioned on
CEQA compliance, caused significant environmental impacts, or preordained the
course of the Program. The trial court
explained: “As early as 1997, the
multi-year, multi-component scope of the Category III program was publicly known. Petitioners should have brought their
segmentation challenges at that time, as grants were initially made, based on
the obvious scope of the Category III program. Rather than challenge individual projects or
the scope of the Category III program at that time, they belatedly challenge it now. Petitioners did not raise their Category III challenges within the 180-day
period allowed by law. The claim is time
barred.” (Fns. omitted)
The Farm
Bureau responds to the trial court’s holding by contending the Farm Bureau “is
not seeking to invalidate or set aside these early implementation
projects . . . .”
According to the Farm Bureau, its claim is that CALFED “violated the
legal requirements that prohibit an agency from undertaking ‘interim projects’
(here, the Early Implementation Projects) that are part of a program prior to
completion of the programmatic environmental document unless certain conditions
are satisfied.” The Farm Bureau argues
“[t]he issue on appeal is not whether these Early Implementation Projects
should be set aside (which they cannot be), but whether the CALFED programmatic
process (i.e., the [PEIS/R]) was prejudiced by the early implementation of
agricultural conversions.”
We cannot
accept that characterization of the issue before us. If, as the Farm Bureau argues, its claim is
that CALFED violated the legal prohibition against undertaking interim projects
because the approval of those projects in some manner drove the programmatic
process, then the Farm Bureau is challenging the fact of the approval of those
interim projects. That is, it is the fact that these projects were approved
without considering their programmatic implications that the Farm Bureau
opposes. The question is whether, at the
time of the project being approved, the agency properly considered all of its
implications, including cumulative impacts to the overall program of which it
is a part. And any claim regarding these
early implementation projects is time-barred.
(Pub. Resources Code, § 21167, subd. (a).) The question here is whether, at the
programmatic level, the agency considered the cumulative impacts of any
related, separate projects already approved.
As discussed earlier, CALFED did consider the cumulative impacts of
these early projects.
As noted,
even if the early projects were improperly approved, it is too late to
challenge them now. Approval of early
implementation projects without CEQA compliance does not preclude future
operation of the CALFED Program. Each
step of the Program, including projects undertaken before Program approval and
those undertaken thereafter, must be judged on its own merits. While the Program assumes CEQA compliance
with respect to each of its individual projects, the adequacy of the PEIS/R does
not depend on whether that compliance actually occurred.
G. Adequacy of the Responses to Comments
Appellants
challenge the adequacy of CALFED’s responses to public comments.
CEQA
requires a lead agency to consider public comments when they are received in a
timely fashion (Pub. Resources Code, § 21091, subd. (d)(1)) and to prepare
written responses (Pub. Resources Code, § 21091, subd. (d)(2)(A)). “The written response shall describe the
disposition of each significant environmental issue that is
raised . . . .”
(Pub. Resources Code, § 21091, subd. (d)(2)(B).) “It is not enough for the EIR simply to contain information
submitted by the public and experts.
Problems raised by the public and responsible experts require a good
faith reasoned analysis in response.” (Santa Clarita Organization for Planning the
Environment v. County of Los Angeles, supra, 106 Cal.App.4th at p.
723.) “‘In particular, the lead agency
must explain in detail its reasons for rejecting suggestions and proceeding
with the project despite its environmental effects.’” (Stanislaus Natural Heritage Project, supra, 48 Cal.App.4th at p. 191.) “The requirement of a detailed analysis in
response ensures that stubborn problems or serious criticism are not ‘swept
under the rug.’” (Santa Clarita Organization for Planning the Environment v. County of
Los Angeles, supra, at p. 723.)
“The public
agency need not respond to every comment raised in the course of the review and
consultation process, but it must specifically respond to the most significant
environmental questions raised in opposition to the project.” (Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 954.) “[T]he determination of the sufficiency of
the agency’s responses to comments on the draft EIR turns upon the detail required in
the responses. [Citation.] Where a general comment is made, a general
response is sufficient.” (Browning-Ferris
Industries v. City Council (1986) 181 Cal.App.3d 852, 862.)
Following
release of the June 25, 1999 draft PEIS/R, CALFED received
approximately 1,500 comment letters from individuals and organizations and
approximately 2,400 form letters or pre-printed postcards. During August and September 1999, CALFED held
16 public hearings throughout the state, at which 760 individuals presented
testimony. The PEIS/R includes three
volumes of comments and responses thereto.
Twenty-three “common responses” are included to address “similar
comments received in great numbers.” For
example, a common response is provided that addresses “uncertainty about the
use of a [PEIS/R] and the makeup of the CALFED Bay-Delta
Program . . . .”
Another common response addresses the role of water conservation in the
CALFED Program. The common responses are
followed by responses to individual comments.
These individual responses are then followed by the comments
themselves.
The Farm
Bureau contends the PEIS/R failed to respond to comments received concerning
the source of water needed for the Program.
The Farm Bureau further contends the PEIS/R was “less than forthcoming
in responding to the related issue of whether water purchases from ‘willing
sellers’ would result in water being redirected from agricultural to
environmental uses.”
As
discussed earlier, the PEIS/R does not designate a source for water needed to
meet Program objectives. Because the
source has not yet been determined, the PEIS/R could not be more forthcoming in
disclosing whether water purchases would result in the redirection of water
from agricultural to environmental uses.
The Farm Bureau’s objection is not to the lack of a response to comments
regarding water sources but to the substance of the response provided. We have already addressed this objection
elsewhere in the opinion.
The Farm
Bureau next contends CALFED “misplaced” nearly 200 public comment letters and,
consequently, provided no responses to them.
The Farm Bureau specifically discusses half a dozen of these letters
that, it argues, raise matters not addressed in the PEIS/R’s responses to
comments. The State says the nearly 200
letters were not misplaced, but were reviewed and received proper
responses. The State argues the fact the
letters were not included in the administrative record originally filed in this
matter is not evidence those letters were misplaced. As to the six letters cited by the Farm
Bureau, the State argues they “did not require an individual response, because
they were adequately addressed in the Common Responses, or were otherwise
cumulative.” The State asserts only
letters requiring individual responses were reproduced in the PEIS/R.
We need not
address the Farm Bureau’s arguments on this issue. Because we conclude the PEIS/R is defective
in its failure to analyze the impacts of supplying water for the project and
its failure to include an alternative with reduced water exports from the
Delta, it will be necessary for CALFED to prepare a new PEIS/R and invite a new
set of public comments. If CALFED failed
to provide responses to all comment letters the first time around, it will have
an opportunity to correct its mistake later.
H. The Adequacy of the Descriptions of the
Environmental
Water
Account
CDWA
contends CALFED failed to include a complete and stable description of the EWA
in the PEIS/R and, therefore, the EWA was adopted without any meaningful
environmental review.
The ROD
states that, in order to address water supply reliability concerns, CALFED is
taking the following action, among others:
“Establishing an EWA with an average of 380 [thousand acre-feet] of
water set aside annually in the first years to provide additional water for
fishery purposes beyond the regulatory baseline. Water assets will be acquired by CALFED
Agencies, consistent with the goals of the CALFED Water Transfer Program.”
CDWA argues
adoption of the EWA was improper, because details about it were not worked out
until after the close of the public comment period on the draft PEIS/R. CDWA asserts the PEIS/R was required to
include a full description of the EWA and an analysis of its impacts,
mitigation measures and reasonable alternatives, but CALFED “did not get past
the initial description stage.” Both
CDWA and the Farm Bureau argue that, because significant details about the EWA
did not come to light until after the close of public comments on the draft
PEIS/R, CALFED was required to recirculate the PEIS/R.
According
to the State, “[t]he various components of a proposed [EWA] are
established in the CALFED plan, and are therefore analyzed in the PEIS/R at a
general level of detail, commensurate with the general nature of the
plan.” The State argues a second-tier EIR has since been completed for the
EWA that contains much more detail.
Metropolitan likewise argues the final PEIS/R did not add significant
new information about the EWA and, therefore, did not require
recirculation. We should at this point
note we deny the State’s and the Farm Bureau’s requests for judicial notice of
documents relating to second-tier environmental review conducted on the EWA and projects undertaken to provide
water for the EWA. Those documents were
not before CALFED and are not relevant to this proceeding.
The trial
court concluded the analysis of the EWA was sufficient for a programmatic EIR, explaining: “[T]he need for recirculation of a draft
programmatic EIR, which on its terms contemplates additional project-specific review and
public comment, is less essential than in the case of a project EIR where the environmental review may
well be the last step before project approval and construction.” The court continued: “The general parameters of an [EWA], a water
transfer program, were discussed both in an early Phase II Report (1998) and in
a revised Phase II report, set forth as a technical appendix to the revised
draft EIR.”
(Fn. omitted.) The court
explained that water storage and its environmental consequences were described
in the draft EIR’s. The court concluded: “The 1999 discussion elicited several public
comments, and the CALFED agencies prepared a ‘Common Response’ discussing many
of these EWA concerns as part of the final EIR.
Additionally, the final programmatic EIR contemplated additional, second
tier environmental review as the EWA became operational.” (Fn. omitted.)
Appellants’
arguments raise two primary issues: (1)
Did the PEIS/R include sufficient analysis of the proposed EWA? (2) Did the amount of new information
revealed after close of the public comment period require recirculation? Because we have already concluded this matter
must be remanded for preparation of a new PEIS/R, we need not resolve the
second issue. We presume a new PEIS/R
prepared for public review and comment will contain any new information revealed
after the close of the public comment period.
However, in order to aid the parties on remand, we discuss the
requirements for an adequate CEQA analysis of the EWA.
CDWA
contends CALFED was required to provide analysis of the EWA in the PEIS/R
because, despite the absence of specific detail about the EWA, the ROD
committed CALFED to use an EWA, in whatever form, to meet Program goals. RCRC likewise argues deferral of CEQA
analysis will mean “[t]he EWA was created without any analysis of alternative
means of achieving its environmental water supply and project water replacement
functions.” The Farm Bureau argues
deferral of EWA analysis until the project level will mean CALFED will never
consider programmatic impacts of the EWA.
According
to the State, because the EWA is described at a general level of detail in the
PEIS/R, a general level of CEQA analysis is sufficient. The State argues certification of the PEIS/R
and approval of the ROD did not irreversibly commit CALFED to an unanalyzed
course of action. The State
explains: “The detailed information in
the ROD about how an [EWA] might be structured in the first few years of
operation provides information about a second-tier project subject to
second-tier environmental review.” The
State insists CALFED should not “be faulted for providing other agency decision
makers and members of the public with as much information as possible about the
developing concept of an EWA, how it related to the CALFED plan, and how a
second-tier EWA project would be structured and implemented during the first
seven years after the ROD.”
Appellants
have the better argument. An EIR must contain sufficient detail and
analysis of the project to provide the public and decision makers with the
information necessary to choose a course of action that intelligently takes
account of the environmental consequences of the project. (Guidelines, § 15151.) “An accurate, stable and finite description
of a project is basic to an informative and legally sufficient EIR.
[Citation.] A curtailed or
distorted description of the project may ‘stultify the objectives of the
reporting process.’” (Kings County
Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p.
738.) The EIR must also contain a sufficient
analysis of impacts, mitigation measures and alternatives to satisfy its
informational function.
The
foregoing disclosures establish that, while all of the operating details of the
EWA had not yet been worked out, the use of an EWA in some form to meet Program
goals was established. In No Oil,
supra, 196 Cal.App.3d 223, the Court of Appeal concluded the EIR was not
required to include analysis of every potential route the oil pipeline might
take. (Id. at p. 235.) However, the court indicated
that, “since it is conceded that any oil extracted for production will be
transported by pipeline, the EIR must, at a minimum, contain some discussion of the
pipeline’s effects if it is to satisfy CEQA requirements.” (Id. at p. 233.)
In the
present matter, the PEIS/R was required to include analysis of the use of an
EWA to satisfy some of the water requirements of the Program. This is true notwithstanding the programmatic
nature of the document. A programmatic EIR can “[a]llow the lead agency to
consider broad policy alternatives and program wide mitigation measures at an
early time when the agency has greater flexibility to deal with basic problems
or cumulative impacts[.]” (Guidelines,
§ 15168, subd. (b)(4).) “A program EIR will be most helpful in dealing
with subsequent activities if it deals with the effects of the program as
specifically and comprehensively as possible.”
(Guidelines, § 15168, subd. (c)(5).)
There is little analysis of the EWA
in the PEIS/R. Regarding impacts, the
PEIS/R states in several places that “[m]anagement of the EWA may magnify the
effects of [the Water Transfer Program].”
The PEIS/R indicates the Water Transfer Program will have positive or
negligible impacts in most Program regions.
Two exceptions are the Sacramento and San Joaquin River Regions, for
which the PEIS/R states: “Potential
long-term adverse effects on specific regional agricultural and urban water
supplies could result from increased water transfers. Areas with adequate water supplies could
transfer portions of those supplies to areas with higher economic return from
the use of water. Water transfers can
affect third parties (those not directly involved in the transaction), local
groundwater, environmental conditions, or other resource areas.
. . .” The PEIS/R describes no
mitigation measures or alternatives associated with the EWA.
Metropolitan argues information on
the EWA in the draft PEIS/R, and a fortiori the final PEIS/R, was sufficient to
allow for meaningful public comment and provided a catalyst for finalization of
the EWA. However, most of the EWA-related
public comments on the draft PEIS/R were requests for more detail about such
things as how water will be managed and who will pay for it. Despite concerns expressed in the comments
about environmental impacts of the EWA, no further impact analysis was provided
in the final PEIS/R.
Although the PEIS/R itself describes
the EWA in general terms, another document entitled “California’s Water Future: A Framework for Action” (the Framework
Agreement) contains much more detail.
The Framework Agreement was issued approximately one month before
CALFED released the final PEIS/R. The
Framework Agreement describes itself as a “blueprint” for addressing conflicts
over restoration of the Bay-Delta and states:
“This summer, CALFED agencies will issue the final programmatic EIS/EIR and a [ROD], and then proceed to
Stage 1. . . . This
framework document sets out actions anticipated to be included in a proposed
preferred alternative for implementing Stage 1.
These actions depend upon CALFED concluding its programmatic
environmental review and subsequent site-specific analyses.
. . .”
The Framework Agreement describes
the EWA in generally the same terms as specified in the PEIS/R’s Common
Response 21. However, attached to the
Framework Agreement, in appendix C, is a table detailing the sources of water
to be credited initially to the EWA. The
table is reproduced below:
Environmental Water Account
Initial Assets
|
Action
Description
|
Water
Available Annually
(Average)
|
|
SWP Pumping of (b)(2) [Ecosystem
Restoration Program] Upstream Releases
|
40,000 acre-feet
|
|
EWA Use of Joint Point
|
75,000 acre-feet
|
|
Export/Inflow Ratio Flexibility
|
30,000 acre-feet
|
|
500 [cubic feet per second] SWP
Pumping Increase
|
50,000 acre-feet
|
|
Purchases--South of Delta
|
150,000 acre-feet
|
|
Purchases--North of Delta
|
35,000 acre-feet
|
|
TOTAL
|
380,000 acre-feet
|
(Fns. omitted)
Appendix C
further states: “In addition to assets
to be acquired annually, as shown in the table above, an initial one-time
deposit of water equivalent to 200 [thousand acre-feet] of south-of-Delta
storage will be acquired from a variety of sources to assure the effectiveness
of the EWA and provide assurances for SWP and CVP water
supply/deliveries.” It also states that
“[s]ource shifting agreements with south-of-Delta water providers for 100
[thousand acre-feet] will be used to enhance the effectiveness of the EWA, and
to help provide assurance that SWP and CVP water deliveries and operations will
not be affected by EWA operations.”
The
disclosures in appendix C of the Framework Agreement regarding the amount of
water to be allocated to the EWA initially, including the sources of that
water, is significant information that should have been included in the final
PEIS/R. The State’s argument that this
information is more appropriately included in a project level EIR is unavailing. Use of a programmatic EIR is not an excuse to defer analysis
of the significant impacts of the program.
(Guidelines, § 15152, subd. (b).)
To the extent CALFED is able to resolve issues regarding the structure
of the EWA before the PEIS/R is issued, that information should be disclosed in
the PEIS/R. That information may then be
made a part of the CEQA analysis.
II
Non-CEQA Claims
A. Introduction
The first
amended petition in RCRC v. State contained two causes of action, one
alleging noncompliance with CEQA and the other asserting a claim for validation
of state action. In the validation
claim, the RCRC Petitioners alleged the ROD contains contractual commitments of
state funds and increased water exports that are unlawful. The State demurred to the second cause of
action, and the trial court sustained the demurrers without leave to
amend.
The RCRC
Petitioners moved to amend the first amended petition to add three new causes
of action: (1) a taxpayer claim alleging
improper transfer of water to private parties; (2) a mandamus claim seeking to
protect the petitioners’ water rights; and (3) a declaratory relief claim
seeking to dictate the rules under which CALFED may operate. The trial court granted the motion on
condition that the new causes of action would be severed and would trail the
CEQA claim. Later, the court sustained
the State’s demurrers to the non-CEQA claims, this time with leave to
amend.
The RCRC
Petitioners filed a second amendment to the first amended petition containing
the same three non-CEQA causes of action but with additional detail. The Kern County Water Agency filed demurrers
to the second amendment, and the State moved for judgment on the pleadings. The trial court concluded the second
amendment was not properly filed because it contained allegations of conduct
occurring after the original petition was filed. The court entered judgment against the RCRC
Petitioners on the second through fourth causes of action.
The State
requests that we take judicial notice of a number of decisions of the SWRCB,
excerpts from the ROD and its attachments, and various legislative history
materials. The trial court granted
judicial notice of most of these materials (item Nos. 1-5, 8-10, 11-14), and
they are part of the record on appeal.
Those items are properly before us already and need no further judicial
notice. We grant the State’s request for
judicial notice as to item Nos. 6 and 7, which are two additional SWRCB
decisions. Item No. 15 is a final EIS/EIR for the EWA. As indicated previously, we deny judicial
notice of this item. The final two
items, Nos. 16 and 17, are the final PEIS/R and volume 1 of the responses to
comments. Because these items are
already part of the record on appeal, judicial notice is unnecessary.
B. The Validation Claim Made Pursuant to
Government Code
Section
53511
CDWA, one
of the RCRC Petitioners, contends the trial court erred in sustaining demurrers
to the validation claim in the first amended petition. CDWA argues the ROD contains many commitments
of state funds and other assets and therefore is subject to a validation
proceeding.
Government
Code section 53511 authorizes a local agency to bring an action “to determine
the validity of its bonds, warrants, contracts, obligations or evidences of
indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of
Part 2 of the Code of Civil Procedure.”
(Gov. Code, § 53511.) Government
Code section 17700 grants the same power to “[t]he state or any state board, department,
agency, or authority . . . .” (Gov. Code, § 17700.) Code of Civil Procedure section 860
reads: “A public agency may upon the
existence of any matter which under any other law is authorized to be
determined pursuant to this chapter, and for 60 days thereafter, bring an
action in the superior court . . . to determine the validity of such
matter. The action shall be in the
nature of a proceeding in rem.”
Validation actions also may be
brought by private parties. Code of
Civil Procedure section 863 reads: “If
no proceedings have been brought by the public agency pursuant to this chapter,
any interested person may bring an action within the time and in the court
specified by Section 860 to determine the validity of such matter.
. . .”
CDWA contends a validation action is
appropriate here because the ROD contains a number of commitments of state
funds, thus bringing it within the category of “bonds, warrants, contracts,
obligations or evidences of indebtedness,” as specified in Government Code
section 53511. According to CDWA, the
ROD “is a mix of contracts between governmental entities, approvals and
statements of obligations.” CDWA argues
the ROD “is much more than a simple notice of determination for CEQA purposes
and includes various agreements, obligations and determinations of plans of
action including those contained in the two (2) appendices and ten (10)
attachments.”
CDWA relies on several entries in
the ROD that, it argues, involve financing and financial obligations. In the introduction, the ROD states: “California and the Federal government in
partnership, are launching the largest, most comprehensive water management
program in the world. . . .
[I]t is the most significant investment in storage and conveyance in
decades.” Under “Overview,” the ROD
states: “California taxpayers,
stakeholders and the Federal Government will be called upon to invest billions
of dollars over the next decade on CALFED programs.”
Under “Funding,” the ROD
states: “In Stage 1, CALFED plans to
invest over $1 billion in [Ecosystem Restoration Program] projects, in
accordance with the priorities established in the Strategic Plan, in addition
to funds necessary for the EWA. To be
successfully implemented, the [Ecosystem Restoration Program] must have at
least $150 million from dedicated funding sources annually through Stage
1. (There may be many ways to achieve
this.) An additional $50 million will be
required annually for the EWA for the first four years. It is anticipated that additional funding to
support the EWA will be needed beyond the first four years.
. . . [¶] For the [Ecosystem Restoration Program], the
CALFED Agencies propose a combination of State funding (including Proposition
204 funds), Federal funding, and user fees.
Consistent with this proposal, the State has allocated over $173 million
in FY 2000-2001, including $100 million from Proposition 204, $35 million from
the general fund, $25 million from Proposition 13, and $13 million from
Proposition 12. Additionally, through FY
2000, Federal funds in the amount of $190 million have been provided through
Reclamation.”
A later section on funding
reads: “Initial State and Federal
funding for Stage 1 water use efficiency programs outlined in this section are
identified within Proposition 204, Proposition 13, the CVPIA, the Reclamation
Reform Act, Title XVI of P.L. 102-575, and various accounts in the Federal Farm
Bill and related [Natural Resources Conservation Services] appropriations. Funding for the completion of the Water Use
Efficiency Program will be determined through the Legislative and Congressional
budget processes. The CALFED governing
body will determine additional funding needs by the middle of 2004, which will
be based upon the results of the program review and stakeholder input. Future funding, if necessary, may be sought
through a bond measure that may also fund other out-year costs of the CALFED
Program.”
The State contends the only “contracts” subject to
Government Code section 17700 are those having “a requisite connection with
financing,” and the ROD is not such a contract.
While the ROD may anticipate financing for various projects and discuss
the sources of that financing, it does not itself establish the financing or authorize
the expenditure of any funds. The State
Water Contractors similarly argue that, without authorization of a specific
project involving the expenditure of funds, there is nothing to validate.
The question presented here is one of statutory
construction. Government Code section
17700 authorizes an action “to determine the validity of its bonds, warrants, contracts,
obligations or evidences of indebtedness . . . .” (Gov. Code, § 17700, italics
added.) The ROD may be viewed as a contract
among the signatories to proceed in a particular manner to solve the problems
associated with the Bay-Delta and State water.
This contract cites the likely sources of early financing for the
Program. However, is that enough to
bring the ROD within the purview of Government Code section 17700?
In City of Ontario v. Superior
Court (1970) 2 Cal.3d 335, a group of taxpayers brought suit under
Government Code section 53511 challenging a contract to construct an automobile
racing stadium. In considering whether
the complaint had been timely served, the state high court discussed the
breadth of Government Code section 53511:
“It lists, as matters for validation under chapter 9, ‘bonds, warrants,
contracts, obligations or evidences of indebtedness’ . . . . There is no limitation or qualification on
the word ‘contracts,’ and it would therefore appear to include a multipurpose
municipal contract such as the Ontario Motor Stadium Agreement. Yet the legislative history of the statute
suggests a contrary result. First, the
Legislative Counsel’s digest of the bill proposing section 53511 characterized
the measure as one allowing ‘a local agency to bring an action to determine the
validity of evidences of indebtedness.’
Second, section 53511 was enacted as part of chapter 3 of part 1,
division 2, title 5, of the Government Code.
Chapter 3 is entitled ‘Bonds,’ and deals exclusively with the power of
local agencies to sell their bonds, replace defaced or lost bonds, and pledge
their revenues to pay or secure such bonds.
If section 53511 was intended to be a provision of general application,
logically it should have been placed in article 4 (‘Miscellaneous’) of chapter
1 (‘General’) of the same part, in which a group of such unrelated matters are
collected. Third, the key language of
section 53511--‘bonds, warrants, contracts, obligations or evidences of
indebtedness’--was taken directly from section 864 of chapter 9; under
well-known canons of statutory interpretation, it should ordinarily be given
the same meaning as it had in the earlier statute. But as a perusal of the companion 1961
legislation reveals, when chapter 9 was adopted it was made applicable only to
such matters as the legality of the local entity’s existence, the validity of
its bonds and assessments, and the validity of joint financing agreements with
other agencies. If section 53511 was
intended to reach any and all contracts into which an agency may lawfully
enter, the restricted language of section 864 was inappropriate for that
purpose. Finally, that language is
peculiarly inapt for expressing such a general meaning in any event, as it
lists the word ‘contracts’ in the midst of four other terms which all deal with
the limited topic of a local agency’s financial obligations.” (City of Ontario v. Superior Court, supra,
2 Cal.3d at pp. 343-344.)
CDWA contends City of Ontario
is not controlling here because it involved Government Code section 53511, not
17700, and, in any event, the discussion about the meaning of the word
“contract” in the statutes was dictum.
We are not persuaded. Government Code sections 53511 and 17700 use
nearly identical language. “[E]very
statute should be construed with reference to the whole system of law of which
it is a part, so that all may be harmonized and have effect. [Citation.]
Legislative intent will be determined so far as possible from the
language of the statutes, read as a whole.”
(County of Fresno v. Clovis Unified School Dist. (1988) 204
Cal.App.3d 417, 426.) Government Code
section 17700 was enacted in 1994, after City of Ontario was
decided. (See Stats. 1994, ch. 242,
§ 2, p. 1832.) “It is a
well-recognized rule of construction that after the courts have construed the
meaning of any particular word, or expression, and the legislature subsequently
undertakes to use these exact words in the same connection, the presumption is
almost irresistible that it used them in the precise and technical sense which
had been placed upon them by the courts.
[Citation.]” (City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191.)
In matters of statutory
interpretation, our fundamental concern is with legislative intent. (Brown
v. Kelly Broadcasting Co.
(1989) 48 Cal.3d 711, 724.) In our view,
when the Legislature used the same language in Government Code section 17700 as
had been used in the related Government Code section 53511 and had been
interpreted narrowly by the state Supreme Court in City of Ontario, the
Legislature intended this same narrow meaning.
As for CDWA’s assertion that the discussion in City of Ontario
was only dictum, “the dicta of
our Supreme Court are highly persuasive.”
(Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328.) We are convinced by the reasoning of the high
court that Government Code section 17700 was not intended to encompass a
contract like the ROD that does not itself establish financial
obligations.
CDWA nevertheless cites Court of
Appeal decisions subsequent to City of Ontario, which, it argues,
recognize a broader interpretation of Government Code sections 53511 and
17700. In Friedland v. City of Long
Beach (1998) 62 Cal.App.4th 835, the court stated that “contracts” within
the meaning of Government Code section 53511 “do not refer generally to all
public agency contracts, but rather to contracts involving financing and
financial obligations.” (Friedland v.
City of Long Beach, supra, at p.
843.) According to CDWA, “[t]he
reference to ‘financial obligations’ would appear to extend well beyond
validation of a contract which is the basis for payment of bonds or other third
party financing.”
We fail to see how the reference to
“financial obligations” expands the reach of Government Code sections 53511 and
17700 beyond contracts that themselves establish financing or financial
arrangements. In Friedland v. City of
Long Beach, supra, 62 Cal.App.4th 835, the court discussed the
purpose of validation proceedings: “A
key objective of a validation action is to limit the extent to which delay due
to litigation may impair a public agency’s ability to operate financially. [Citation.]
A validation action fulfills a second important objective, which is to
facilitate a public agency’s financial transactions with third parties by
quickly affirming their legality. ‘The
fact that litigation may be pending or forthcoming drastically affects the
marketability of public bonds . . . . [T]he possibility of future litigation is very
likely to have a chilling effect upon potential third party lenders, thus
resulting in higher interest rates or even the total denial of credit,’ which
may impair a public agency’s ability to fulfill its responsibilities.” (Id. at p. 843.)
Friedland involved (1) a lease between the
City of Long Beach and the Long Beach Aquarium of the Pacific (AOP), (2) a
pledge by the Redevelopment Agency of Long Beach of certain transient occupancy
taxes as security for the payment of debt service on bonds issued by a proposed
aquarium, as provided for in an owner participation agreement, (3) a pledge by
the City of Long Beach of the City’s Tidelands Operating Funds as additional
security for the payment of debt service on bonds issued by the aquarium, as
provided for in a city pledge agreement, and (4) an agreement by the Long Beach
Board of Harbor Commissioners to subordinate and defer its rights to receive
payments of transient occupancy taxes. (Id.
at p. 844.) The court concluded the various
components of this arrangement “constituted pledges of funds from various
sources to insure repayment of AOP bonds in the event that Aquarium revenues
could not repay that debt. Thus, they were
proper subjects of the Validation Action.”
(Id. at p. 845.) The ROD
contains nothing like the financial arrangements in Friedland.
Meaney v. Sacramento Housing &
Redevelopment Agency
(1993) 13 Cal.App.4th 566 was a validation action brought by school districts
challenging an agreement between the county and a redevelopment agency to use
tax increment financing to pay for the construction of a proposed
courthouse. The agreement provided: “‘During the life of the Project, the Agency
agrees to set aside from the tax increment, as defined below, the amount the
County would have received in property taxes from the . . . Project
Area . . . but for the division of Property taxes in accordance with
Health and Safety Code Section 33670.
Such amounts shall be used for the purpose of assisting the County in
financing the costs for plans and specifications and construction for a new
County courthouse and other Agency approved County public facilities consistent
with the Redevelopment Plan.’” (Id.
at p. 573.)
The Court of Appeal found this to be
a proper validation action, explaining:
“The reference to ‘contracts’ [in Government Code section 53511] confers
on the School Districts authority to bring the present action under Code of
Civil Procedure section 860. The meaning
of the term was exhaustively analyzed in City of Ontario v. Superior Court[, supra,] 2 Cal.3d [at pages]
342-344. The court noted that, while the
statute does not expressly qualify the term, the legislative history and
statutory context indicated that it does not apply generally to all municipal
contracts but rather should be construed in pari materia with the other terms
in the statute. Narrowly construed in
this sense, the term still applies to contracts such as the Courthouse
Agreement, that is, to financial obligations in ‘joint financing agreements’
between local agencies. (Id. at
p. 343.)” (Meaney v. Sacramento
Housing & Redevelopment Agency, supra, 13 Cal.App.4th at p.
577.)
Meaney is consistent with City of
Ontario and authorizes a validation action only where the agreement itself
establishes a financial arrangement. The
ROD does not establish any financing for the CALFED Program or commit to any
financial arrangements. Nor does it
authorize the expenditure of any funds.
At most, the ROD discusses the financing that will be needed to meet the
Program’s objectives and is expected to be established elsewhere. This is not enough to give rise to a
validation action.
C. RCRC’s Second Amendment to the First Amended
Petition
In the
first amendment to the first amended petition, the RCRC Petitioners asserted
three non-CEQA causes of action. The
second cause of action alleged a taxpayer claim under Code of Civil Procedure
section 526a. That section reads in
relevant part: “An action to obtain a
judgment, restraining and preventing any illegal expenditure of, waste of, or
injury to, the estate, funds, or other property of a county, town, city or city
and county of the state, may be maintained against any officer thereof, or any
agent, or other person, acting in its behalf . . . .” Although the terms of this statute suggest it
applies only to local governments, it has been judicially extended to include
state agencies and their officials. (Waste
Management of Alameda County, Inc. v. County of Alameda (2000) 79
Cal.App.4th 1223, 1240.)
The third
cause of action asserted a claim seeking traditional mandamus under Code of
Civil Procedure section 1085. That
section authorizes an action “to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or
station . . . .”
The fourth
cause of action asserted a claim under Code of Civil Procedure section
1060. That section reads: “Any person interested under a written
instrument . . . , or under a contract, or who desires a declaration
of his or her rights or duties with respect to another, or in respect to, in,
over or upon property, . . . may, in cases of actual controversy
relating to the legal rights and duties of the respective parties, bring an
original action . . . for a declaration of his or her rights and
duties in the premises . . . .”
After the
trial court sustained demurrers to these three causes of action in the first
amendment, the RCRC Petitioners filed a second amendment to the first amended
petition containing the same causes of action but with more detail. The State moved for judgment on the pleadings
and the Kern County Water Agency demurred.
The trial court concluded nearly all the factual allegations added in
the second amendment concern events occurring after the original petition was
filed and, therefore, should have been presented in a supplemental rather than
an amended pleading. A supplemental
pleading requires leave of court, which the RCRC Petitioners failed to
seek. The court further concluded that,
if leave had been sought, it would have been denied.
“Matters
which occur after the filing of a complaint may not be alleged by amendment to
the complaint, but must be brought into the action by means of a supplemental
complaint.” (Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414,
426.) Supplemental complaints are
governed by Code of Civil Procedure section 464, subdivision (a), which
reads: “The plaintiff and defendant,
respectively, may be allowed, on motion, to make a supplemental complaint or
answer, alleging facts material to the case occurring after the former
complaint or answer.”
CDWA does
not dispute the second amendment contains allegations of conduct occurring
after the original petition was filed or that post-petition conduct must be
alleged in a supplemental rather than an amended petition. CDWA also does not dispute the RCRC
Petitioners failed to seek leave to file a supplemental petition. Instead, CDWA argues the court abused its
discretion in concluding leave to file a supplemental petition would have been
denied if sought.
In
explaining why leave to file a supplemental petition would have been denied,
the trial court expressed its reluctance “to further complicate and extend this
litigation since it mainly concerns CEQA issues that are to be
expedited . . . .”
The court indicated there would be no prejudice to the RCRC Petitioners
because “[t]hey are not barred from filing a separate lawsuit asserting causes
of action based on facts occurring after the original petition.” By so ruling, the court effectively precluded
the RCRC Petitioners from seeking leave to amend.
CDWA argues
allowing the non-CEQA claims to go forward would not have prolonged the
litigation, because the court severed and trailed those claims.
Although
courts should generally exercise liberality in allowing a supplemental pleading
that alleges facts pertinent to the case, a “motion to file a supplemental
pleading is addressed to the sound legal discretion of the court, and its
ruling will not be disturbed on appeal in the absence of a showing of a
manifest abuse of that discretion.” (Flood v. Simpson (1975) 45 Cal.App.3d
644, 647.) We find no such abuse
here. The trial court entered its final
ruling on the CEQA claim on April 1, 2003, nine days before it concluded the
second amendment had been filed improperly.
Thus, by the time the court was deciding whether the petitioners could
proceed with the second amendment, it had already disposed of the CEQA
claim.
CEQA
matters are entitled to court preference over all other civil actions in order
that such matters may be quickly heard and decided. (Pub. Resources Code, § 21167.1.) Although the trial court severed the non-CEQA
claims from the CEQA claim and ordered that the non-CEQA claims trail, any
appeal of the court’s ruling on the CEQA claim would have to await resolution
of the other claims. The one final
judgment rule precludes appeal of an order granting or denying a writ of
mandate until resolution of the entire action.
(Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 696-697.) “[A]n appeal cannot be taken from a judgment
that fails to complete the disposition of all the causes of action between the
parties even if the causes of action disposed of by the judgment have been
ordered to be tried separately, or may be characterized as ‘separate and
independent’ from those remaining.” (Morehart v. County of Santa Barbara
(1994) 7 Cal.4th 725, 743.) By allowing
an amendment and subsequent litigation of the non-CEQA claims, the court would
have significantly prolonged final resolution of the CEQA claim. Furthermore, as the trial court indicated,
claims relating to matters occurring after the original petition was filed may
be asserted in a separate proceeding.
Thus, prejudice to the RCRC Petitioners in disallowing a supplemental
petition was minimal.
Although we
conclude the trial court properly rejected the second amendment, that does not
preclude our examination of the non-CEQA claims asserted by the RCRC Petitioners. Prior to its ruling on the second amendment,
the trial court sustained demurrers to the first amendment, which also
contained the three non-CEQA claims.
That ruling is properly subject to review on appeal from the final
judgment.
However, in
arguing the merits of the non-CEQA claims, CDWA relies exclusively on the
allegations of the second amendment.
CDWA argues the second amendment contains sufficient allegations to
state viable non-CEQA claims, even ignoring the allegations of post-petition
conduct. But the second amendment is not
before us. As indicated, that pleading
was rejected by the trial court, and we find no abuse of discretion in this
regard. Thus, CDWA is restricted to
relying on the allegations of the first amendment. By ignoring the allegations of the first
amendment, CDWA has waived any review of the trial court’s order rejecting that
pleading.
Disposition
This file last modified on: Monday, November 17, 2003.