Supreme Court of California Justia
Citation 43 Cal. 4th 1143, 184 P.3d 709, 77 Cal. Rptr. 3d 578

In re Bay-Delta



Filed 6/5/08



IN THE SUPREME COURT OF CALIFORNIA





)
In re BAY-DELTA PROGRAMMATIC

S138974

ENVIRONMENTAL IMPACT REPORT

Ct.App. 3 C044267 & C044577

COORDINATED PROCEEDINGS.

Fresno & Sacramento Counties



JCCP No. 4152

California’s two largest rivers, the Sacramento and the San Joaquin Rivers,

meet to form a delta (California Delta or Delta) near the City of Sacramento, and

their combined waters, if not diverted, flow through the Delta, Suisun Bay, and

San Francisco Bay, to the Pacific Ocean. The flow of water through this region,

commonly known as the Bay-Delta, forms the largest estuary on the West Coast of

the United States. It is also the hub of California’s two largest water distribution

systems, supplying drinking water for two-thirds of California’s residents and

irrigation water for seven million acres of agricultural land.

Competition for the Bay-Delta’s resources, pollution of Bay-Delta water,

draining and filling of tidal marshes and other wetlands, and diversion of Bay-

Delta water for urban and agricultural uses throughout the state have, however,

resulted in a decline in Bay-Delta wildlife habitat, the threatened extinction of

plant and animal species, an increasing risk of failure of Bay-Delta levees, and

degradation of the Bay-Delta as a reliable source of high quality water.

In 1994, to address the Bay-Delta’s problems, 18 federal and state agencies

formed a consortium, known as CALFED, to design and implement a long-term

1




and comprehensive plan (the CALFED Program or Program), to restore the Bay-

Delta’s ecological health and to improve management of Bay-Delta water for the

various beneficial uses that depend on it. The CALFED Program was intended to

reduce conflicts and provide solutions that competing interests could support.

Because of the plan’s comprehensive and long-range nature, CALFED decided to

proceed in stages and to begin by preparing a program environmental impact

statement/environmental impact report (EIR; together PEIS/R). Under state law, a

program environmental impact report is one that “may be prepared on a series of

actions that can be characterized as one large project” and are related in specified

ways. (Cal. Code Regs., tit. 14, § 15168, subd. (a).)

Here, we must determine whether, as the Court of Appeal concluded, the

final PEIS/R for the CALFED Program (CALFED Final Programmatic EIS/EIR

(July 2000)) failed to comply with the California Environmental Quality Act

(CEQA; Pub. Resources Code, § 21000 et seq.) because it did not examine in

detail a program alternative requiring reduced water exports from the Bay-Delta;

because it did not identify with adequate specificity the potential sources of water

required for the proposed projects or analyze in sufficient detail the environmental

impacts of taking water from those specific sources; and because it did not provide

sufficient detail about the proposed “Environmental Water Account” (a specific

project within the CALFED Program). Disagreeing with the Court of Appeal, we

conclude that the CALFED program environmental impact report is not legally

defective in any of these ways.

I. FACTS, BACKGROUND, AND PROCEDURAL HISTORY

California has a long history of conflict over its water resources. “The

history of California water development and distribution is a story of supply and

demand. California’s critical water problem is not a lack of water but uneven

distribution of water resources.” (United States v. State Water Resources Control

2



Bd. (1986) 182 Cal.App.3d 82, 98.) Approximately 75 percent of the state’s

natural water runoff occurs north of Sacramento, while about 75 percent of the net

water demand, for both agricultural and urban uses, occurs south of Sacramento.

(See ibid.) The Bay-Delta has been the focal point of the most ambitious projects

to resolve this mismatch of supply and demand.

The Bay-Delta’s watershed encompasses 37 percent of the state’s surface

area, and its average annual in-flow is 22 million acre-feet of water, of which 17.9

million acre-feet comes from the Sacramento River region. Covering over

738,000 acres in five counties, the Bay-Delta is a haven for plants, fish, and

wildlife, supporting over 750 native and introduced plant and animal species.

Home to residential and business communities supported by major transportation

networks, the Bay-Delta is also the hub of the state’s major water distribution

networks. Currently an average of 5.9 million acre-feet of water is exported south

each year from the Bay-Delta, of which about 60 percent is taken for agriculture

and the remainder for urban uses. Two-thirds of California households receive at

least some of their domestic water from the Bay-Delta, and over seven million

acres of highly productive land are irrigated from the same source. (See United

States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 97.)

As a result of the uneven distribution of water resources in California, the

Bay-Delta has long been the focus of competing interests making conflicting

demands. As the PEIS/R explains, “conflicting demands have resulted in several

resource threats to the Bay-Delta: the decline of wildlife habitat; the threat of

extinction of several native plant and animal species; the collapse of one of the

richest commercial fisheries in the nation; the degradation of Bay-Delta water

quality; the continued land subsidence on Delta islands; and a Delta levee system

faced with a high risk of failure.” (PEIS/R, supra, Technical Appen., Phase II

Rep., p. 11.) The CALFED Program was developed to address these issues and to

3



reduce conflicts in the system. A brief history of Bay-Delta water use and related

legal issues will aid in understanding the CALFED Program and the issues

presented here.

A. Historical Background of Bay-Delta Water Use and Related Legal

Developments

Due to limited water supplies and rapid population growth, the Southern

California area began to experience a need for imported water in the early part of

the 20th century. In 1928, the Metropolitan Water District of Southern California

(Metropolitan) was created to combine the financial resources of cities and

communities in Southern California to import water from distant sources.

(Metropolitan Water Dist. of Southern Cal. v. Imperial Irrigation Dist. (2000) 80

Cal.App.4th 1403, 1415.) Metropolitan constructed aqueducts to bring water from

the Colorado River to Southern California. (Id. at p. 1417.) In a normal year,

California’s rights to Colorado River water are limited to 4.4 million acre-feet. By

using Nevada’s and Arizona’s under-used entitlements and surplus water,

however, California has historically used more than its normal year’s entitlement.

Because both Arizona and Nevada are approaching full use of their entitlements,

California’s overuse of the Colorado River cannot continue, and the United States

Secretary of the Interior has directed California to devise a plan to live within its

annual 4.4 million acre-feet entitlement.

In 1940, the City of Los Angeles obtained a permit to appropriate virtually

the entire flow from four of the five streams supplying water to the state’s second

largest lake, Mono Lake, near the eastern entrance to Yosemite National Park.

(National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 424.) Mono

Lake began shrinking due to this diversion. (Ibid.) In 1983, this court found that

under the public trust doctrine “[t]he state has an affirmative duty to take the

public trust into account in the planning and allocation of water resources, and to

4



protect public trust uses whenever feasible.” (Id. at p. 446.) Accordingly, this

court issued a decision effectively limiting the amount of water that can be

exported from Mono Lake. (Id. at p. 452.) As a result of that decision, and also to

protect affected trout populations (see California Trout, Inc. v. Superior Court

(1990) 218 Cal.App.3d 187, 195), the State Water Resources Control Board

(SWRCB) has restricted diversions from Mono Lake’s tributary creeks.

In 1933, primarily to control flooding in the Central Valley, the California

Legislature approved the Central Valley Project (CVP), which is the nation’s

largest water reclamation project and California’s largest water supplier.1 (See

County of San Joaquin v. State Water Resources Control Bd. (1997) 54

Cal.App.4th 1144, 1147.) Originally a state project, the CVP was turned over to

the federal Bureau of Reclamation, which operates the CVP under rights granted

by the SWRCB. (Ibid.; United States v. State Water Resources Control Bd.,

supra, 182 Cal.App.3d at p. 97.) The CVP annually exports around 3.5 million

acre-feet of water from the Bay-Delta and its tributaries and watershed. In 1992,

in what was seen as a victory for environmentalists, Congress passed the Central

Valley Project Improvement Act (Pub.L. No. 102-575 (Oct. 30, 1992) 106 Stat.

4706), which elevated fish and wildlife protection and restoration to the status of a

primary purpose of the CVP, reserved 800,000 acre-feet of CVP water for

environmental and wildlife protection purposes, and prohibited new water

contracts.


1

The CVP operates 21 reservoirs, 11 power plants, and 500 miles of major

canals and aqueducts. With total storage capacity of more than 12 million acre-
feet, the CVP delivers approximately seven million acre-feet of water annually
through the Delta-Mendota Canal to over 250 water contractors, primarily for
agricultural use in the Central Valley and adjacent areas. (See United States v.
State Water Resources Control Bd., supra,
182 Cal.App.3d at p. 99.)

5



In 1951, the Legislature approved what became known as the State Water

Project (SWP), another water storage and delivery system and the other major

exporter of Bay-Delta water.2 (Planning & Conservation League v. Department

of Water Resources (2000) 83 Cal.App.4th 892, 898; United States v. State Water

Resources Control Bd., supra, 182 Cal.App.3d at pp. 99-100.) Construction of the

SWP did not begin, however, until the Legislature passed the California Water

Resources Development Bond Act (also known as the Burns-Porter Act) (Wat.

Code, § 12930 et seq.) in 1959, and the electorate approved the corresponding

bond measure in 1960. (See Metropolitan Water Dist. v. Marquardt (1963) 59

Cal.2d 159, 170; Planning & Conservation League, supra, at p. 898; Antelope

Valley-East Kern Water Agency v. Local Agency Formation Com. (1988) 204

Cal.App.3d 990, 993.) The SWP serves the domestic water needs of

approximately two-thirds of all Californians, with Metropolitan receiving about

half of the SWP’s water delivery. (Metropolitan Water Dist. of Southern Cal. v.

Imperial Irrigation Dist., supra, 80 Cal.App.4th at pp. 1411, fn. 8, 1418; see also

State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 693.) Due

to environmental concerns, however, construction of the entire SWP project has

never been completed, resulting in the annual delivery of only about half of the 4.2

million acre-feet of water projected. (Santa Clarita Organization for Planning the

Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 152.)


2

The SWP consists of a series of 21 dams and reservoirs (including Oroville

Dam and Lake Oroville on the Feather River, a tributary of the Sacramento River),
five power plants, 16 pumping plants, and 662 miles of aqueduct; it exports Bay-
Delta water through the California Aqueduct. (See Wat. Code, § 12934, subd. (d);
Central Delta Water Agency v. State Water Resources Control Bd. (2004) 124
Cal.App.4th 245, 254, fn. 4; County of San Joaquin v. State Water Resources
Control Bd., supra,
54 Cal.App.4th at p. 1147; United States v. State Water
Resources Control Bd., supra,
182 Cal.App.3d at p. 100.)

6



The problem of insufficient water supplies was intensified by persistent

drought between 1987 and 1992. (Santa Clarita Organization for Planning the

Environment v. County of Los Angeles, supra, 157 Cal.App.4th at p. 153;

Planning & Conservation League v. Department of Water Resources, supra, 83

Cal.App.4th 892, 900.) In 1991, the state Department of Water Resources

organized a drought water bank to relieve shortages. (Planning & Conservation

League, supra, at pp. 900-901.) In 1994, the department renegotiated the

allocation of SWP water with urban and agricultural water contractors, resulting in

an agreement known as the Monterey Agreement. (Planning & Conservation

League v. Department of Water Resources (1998) 17 Cal.4th 264, 267; Planning

& Conservation League, supra, 83 Cal.App.4th at pp. 901-902.)

In 1978, the SWRCB adopted a water quality control plan for the Delta and

Suisun Marsh, which led to years of litigation that ended in 1986 when the Court

of Appeal decided that “the Board failed to carry out properly its water quality

planning obligations.” (United States v. State Water Resources Control Bd.,

supra, 182 Cal.App.3d at p. 120.) In 1987, the SWRCB began holding hearings to

revise the plan, resulting in a report that was criticized by both the northern and

southern regions. In 1991, after revisions were made to address those criticisms,

the SWRCB issued a final report that the federal Environmental Protection

Agency (EPA) rejected. It was not until 1995 that the SWRCB adopted a final

water quality control plan for the Delta. (See State Water Resources Control Bd.

Cases, supra, 136 Cal.App.4th at pp. 699-701.)

By 1993, two fish species — the winter-run Chinook salmon and the Delta

smelt — were listed as threatened or endangered under the Endangered Species

Act of 1973 (16 U.S.C. § 1531 et seq.), resulting in further restrictions on the

operations of the CVP and the SWP and the amount of water exported from the

Delta. (O’Neil v. United States (9th Cir. 1995) 50 F.3d 677, 681.) In 1994, the

7



federal EPA concluded that during the preceding 20 years, largely as a result of

water diversions by the CVP and SWP, the Bay-Delta’s fish and wildlife resources

had “deteriorated drastically.” (60 Fed.Reg. 4665 (Jan. 24, 1995).) The California

Department of Fish and Game reached the same conclusion.

B. The CALFED Program

As noted, in 1994, against a backdrop of mounting concerns over water

shortages, the ecological deterioration of Bay-Delta estuary, the decline in water

quality, and the risk of levee system failure, eight state agencies and 10 federal

agencies3 with management or regulatory responsibility over the Bay-Delta

formed CALFED to develop a long-term solution to the Bay-Delta’s problems.

In June 1994, the CALFED agencies signed an agreement, known as the

Framework Agreement, in which they pledged to coordinate the operation of the

SWP and the CVP, to coordinate implementation of water quality standards, and

to develop a process to establish a long-term solution to the problems of

ecosystem quality, water quality, water supply reliability, and levee system

vulnerability. In December 1994, the CALFED agencies signed a statement of

“Principles for Agreement on Bay-Delta Standards” (the Bay-Delta Accord),

3

The federal CALFED agencies are the United States Army Corps of

Engineers, Bureau of Land Management, Bureau of Reclamation, EPA, United
States Fish and Wildlife Service, United States Forest Service, United States
Geological Survey, National Marine Fisheries Service, Natural Resources
Conservation Service, and Western Area Power Administration.


The state CALFED agencies are the Delta Protection Commission,

Department of Fish and Game, California Environmental Protection Agency,
Department of Food and Agriculture, Resources Agency, Department of Water
Resources, Central Valley Flood Protection Board (formerly Reclamation Board),
and SWRCB.


In January 2003, more than two years after certification of the PEIS/R at

issue here, the Legislature established the California Bay-Delta Authority to
oversee the CALFED Program. (Wat. Code, § 79410 et seq.)

8



which contained detailed interim measures for environmental protection and

regulatory stability in the Bay-Delta.

The CALFED Program, which was to be administered over the next 30

years, arose out of the Framework Agreement and the Bay-Delta Accord. The

PEIS/R describes the CALFED Program as “a general description of a range of

actions that will be further refined, considered, and analyzed for site-specific

environmental impacts as part of second- and third-tier environmental documents

prior to making a decision to carry out these later actions.” (PEIS/R, supra, p. 3-

5.) The Resources Agency serves as the lead agency under CEQA. The Program

is divided into three phases.

1. Phase I

During phase I, which ran from May 1995 to August 1996, CALFED used

a series of public workshops to define the Bay-Delta’s problems and to develop a

range of potential alternative solutions. This process resulted in CALFED’s

adoption of a mission statement, program objectives, and solution principles,

which CALFED used to create and then to narrow a list of program alternatives.

The Program’s mission statement reads: “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.” (PEIS/R, supra, at p. 1-5.)

CALFED identified these four 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

9



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.’ ” (PEIS/R, supra, at p. 1-5.)

CALFED determined that “[e]ach of the four primary objectives for the

Program . . . must be met to achieve the project purpose.” (PEIS/R, supra, p. 1-6.)

To this end, each of the alternatives that CALFED examined in the PEIS/R was

“designed to meet these objectives in a comprehensive, integrated manner.”

(Ibid.) The PEIS/R states: “The purpose of the Program is to develop and

implement a long-term comprehensive plan that will restore ecological health and

improve water management for beneficial uses of the Bay-Delta system. To

practicably achieve this program purpose, CALFED will concurrently and

comprehensively address problems of the Bay-Delta system within each of four

resource categories: ecosystem quality, water quality, water supply reliability, and

levee system integrity. Important physical, ecological, and socioeconomic

linkages exist between the problems and possible solutions in each of these

categories. Accordingly, a solution to problems in one resource category cannot

be pursued without addressing problems in the other resource categories.” (Id. at

pp. 1-6 to 1-7.)

CALFED’s six solution principles were adopted to “provide an overall

measure of the acceptability of alternatives and guide the design of the

institutional part of each alternative.” (PEIS/R, supra, p. 1-5.) The 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

10



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.” (Ibid.)

Fifty categories of potential action, including hundreds of individual

actions within these categories, were identified to achieve the Program’s

objectives. (PEIS/R, supra, p. 1-13.) These “action categories” became the

building blocks of the alternatives — that is, each alternative was a combination of

action categories reflecting differing approaches to achieving Program objectives.

(Ibid.) 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.” (Id., pp. 1-13 to 1-14.)

The conflict between fisheries and diversions results primarily from fish

mortality attributable to water diversions, including direct losses at pumps,

reduced survival when young fish are drawn out of river channels into the Delta,

and reduced spawning success of adult fish when migratory cues are altered. The

conflict between habitat and land use or flood protection arises because Bay-Delta

wildlife habitat has been destroyed by land development and the construction of

flood control facilities to protect developed land, and because the needs of wildlife

habitat now constrain both land development and levee maintenance and

sometimes require that agricultural land be dedicated to habitat. The conflict

between water supply availability and beneficial use reflects both increased

11



competition among beneficial users and increased conflict between in-stream and

out-of-stream needs at particular times within the annual hydrological cycle.

Water quality and land use conflict because water returned to the Bay-Delta after

urban and agricultural use contains pollutants and contaminants that degrade water

quality. (PEIS/R, supra, pp. 1-13 to 1-14.)

The process of narrowing alternatives yielded 32 approaches for resolving

these conflicts, which resulted in a list of 100 alternatives that were later reduced

to 10. (PEIS/R, supra, pp. 1-14 to 1-15.)

To assess the 10 alternatives, CALFED held eight public meetings, one

workshop, and a meeting of the Bay-Delta Advisory Council. Through this public

process, CALFED staff identified four common components (water quality, levee

system integrity, ecosystem quality, and water use efficiency) and two variable

components (storage and conveyance) and determined that each alternative should

include each of these components. The staff further determined that 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.” (PEIS/R, supra, p. 1-16.) Accordingly, the alternatives were

structured around the variable components of storage and conveyance, with the

description of the common components not varying among the alternatives.

In alternative number one (existing system conveyance), the Delta’s

channels would remain in their existing configuration with the addition of some

new facilities in the South Delta, including a new pumping station and an inter-tie

connecting the SWP and CVP facilities. In alternative number two (modified

through-Delta conveyance), North Delta channel modifications, including a

diversion facility from the Sacramento River to the Mokelumne River and

widening the Mokelumne River channel, would be added to the South Delta

alterations contemplated by the first alternative. In alternative number three (dual-

12



Delta conveyance), in addition to many of the modifications contemplated by the

first and second alternatives, 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.

2. Phase II

During phase II, which ran from August 1996 to December 2000, two

additional program elements (watershed and water transfer) were added to each

alternative, a preferred program alternative was identified, the PEIS/R and the

federal Record of Decision (ROD) were certified, and a plan was developed for

the ensuing seven years.

In March 1998, CALFED released a first draft PEIS/R evaluating 12

variations or configurations of the three basic alternatives. In June 1990, after

further study and public input, CALFED released a second draft PEIS/R that

analyzed a preferred alternative employing a through-Delta conveyance with

specific facility improvements, and three other alternatives (each with and without

additional water storage) that involved few or no facility improvements or sent

water around the Delta, and also a “no action” alternative. CALFED held 15

workshops on this draft PEIS/R at which 760 individuals testified, and it

considered several thousand letters and postcards.

In July 2000, CALFED issued the final PEIS/R. The preferred alternative

and the other alternatives were generally as described in the second draft PEIS/R.

On August 28, 2000, the Resources Agency certified that the final PEIS/R

complied with CEQA. The CALFED agencies then adopted the ROD for the

Program.

13



3. Phase III

During phase III, the preferred program alternative identified in the final

PEIS/R is to be fully implemented. The first seven years of implementation are

referred to as “Stage 1 actions.” Among the planned Stage 1 actions is

implementation of “an Environmental Water Account that acquires water for

critical ecosystem and species recovery needs, substantially through voluntary

purchases in the water transfer market in its first few years and developing

additional assets over time.” (PEIS/R, supra, Technical Appen., Implementation

Plan, p. 2-8.)

C. The Litigation

In September 2000, a petition for writ of administrative mandate was filed

in Sacramento County Superior Court alleging, as here relevant, that the CALFED

PEIS/R did not comply with the requirements of CEQA. Filing the action as

petitioners were RCRC, a nonprofit corporation representing 28 (now 30) rural

counties; the Central Delta Water Agency, a public agency; the South Delta Water

Agency, also a public agency; and three owners of agricultural land in the Delta

(R.C. Farms, Inc., Zuckerman-Mandeville, Inc., and Ruddi Mussi). Named as

respondents were the State of California, the state Resources Agency, the

California Environmental Protection Agency, and the secretaries of those

agencies. Named as real parties in interest were the United States of America, the

state Department of Water Resources, and various heads of federal agencies.4


4

Other parties joining this litigation, by intervention or otherwise, included

the Bay Institute, the San Joaquin River Group Authority, the San Joaquin River
Exchange Contractors Water Authority, various irrigation districts located south of
the Delta, 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, the

(Footnote continued on next page.)

14



In December 2000, a petition for writ of mandate was filed in Fresno

County Superior Court also challenging the CALFED PEIS/R for noncompliance

with CEQA. Filing the action as petitioners were the California Farm Bureau

Federation (Farm Bureau; a nonprofit corporation representing local farm bureaus,

individual farmers, and others with agricultural interests in the state) and three

owners of agricultural land in San Joaquin County (Don Laub, Debbie Jacobsen,

and Ted Sheely).5 Named as respondents were the Governor and various

CALFED agency officials.

In April 2001, these two actions were coordinated in Sacramento County

Superior Court under the title Bay-Delta Programmatic EIR Cases (JCCP No.

4152). (Code Civ. Proc., § 404 et seq.) In April 2003, the trial court ruled that the

CALFED PEIS/R satisfied the requirements of CEQA. Separate judgments were

then entered denying both petitions. The petitioners in each action appealed, and

the Court of Appeal consolidated the appeals.

D. Court of Appeal Opinion and Petitions for Review

In a 224-page opinion, the Court of Appeal reversed the judgments and

remanded the matter to the trial court with directions to grant the petitions for writ

of mandate vacating both the certification of the PEIS/R and the adoption of the

ROD. Although it rejected most of the CEQA challenges, the Court of Appeal



(Footnote continued from previous page.)

Westlands Water District, the San Joaquin County Flood Control and Water
Conservation District, and Metropolitan.
5

Earlier, in September 2000, the same petitioners had filed an action in

federal district court challenging the CALFED PEIS/R for noncompliance with
both federal and state environmental laws. The federal district court retained
jurisdiction of the federal claims but dismissed the state law claims. (Laub v. U.S.
Dept. of Interior
(9th Cir. 2003) 342 F.3d 1080, 1084.)

15



concluded that the PEIS/R was defective (1) in failing to discuss an alternative to

the CALFED Program requiring reduced water exports from the Bay-Delta, (2) in

failing to adequately discuss the environmental impacts of diverting water from

various potential sources to meet the Program’s goals, and (3) in failing to include

certain information relating to the Environmental Water Account.

Four petitions for review were filed, and this court granted each petition.

II. STANDARD OF REVIEW

“Section 21168.5 [of the Public Resources Code] provides that a court’s

inquiry in an action to set aside an agency’s decision under CEQA ‘shall extend

only to whether there was a prejudicial abuse of discretion. Abuse of discretion is

established if the agency has not proceeded in a manner required by law or if the

determination or decision is not supported by substantial evidence.’ As a result of

this standard, ‘The court does not pass upon the correctness of the EIR’s

environmental conclusions, but only upon its sufficiency as an informative

document.’ [Citation.]” (Laurel Heights Improvement Assn. v. Regents of

University of California (1988) 47 Cal.3d 376, 392, fn. omitted; see also id. at

p. 407.) “We may not set aside an agency’s approval of an EIR on the ground that

an opposite conclusion would have been equally or more reasonable.” (Citizens of

Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Goleta).)

“An appellate court’s review of the administrative record for legal error and

substantial evidence in a CEQA case, as in other mandamus cases, is the same as

the trial court’s: The appellate court reviews the agency’s action, not the trial

court’s decision; in that sense appellate judicial review under CEQA is de novo.”

(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova

(2007) 40 Cal.4th 412, 427.)

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III. REDUCED EXPORTS ALTERNATIVE

The Court of Appeal concluded that the CALFED PEIS/R was defective for

failing to discuss an alternative to the CALFED Program requiring reduced

exports of Bay-Delta water. The Court of Appeal explained: “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.” The Court of Appeal declared that a reduced exports

alternative “would also appear to be feasible, at least in the long term as

population growth adjusts to the new realities of water availability.” Although it

conceded that a planned reduction of water exports was inconsistent with the

Program’s water supply objective, the Court of Appeal agreed with the parties

challenging the PEIS/R (the objecting parties)6 that “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.”

For the reasons set forth below, we conclude that the Court of Appeal erred.

The purpose of an EIR is to give the public and government agencies the

information needed to make informed decisions, thus protecting “ ‘not only the

environment but also informed self-government.’ ” (Goleta, supra, 52 Cal.3d at

p. 564.) The EIR is the heart of CEQA, and the mitigation and alternatives

discussion forms the core of the EIR. (Ibid.)


6

Central Delta Water Agency, California Farm Bureau Federation, and

RCRC.

17



The basic framework for analyzing the sufficiency of an EIR’s description

of alternatives is set forth by the Legislature in CEQA, by the Governor’s Office

of Planning and Research in the CEQA Guidelines (Cal. Code Regs., tit. 14,

§ 15000 et seq.),7 and by this court in Goleta, supra, 52 Cal.3d 553. CEQA

requires that an EIR, in addition to analyzing the environmental effects of a

proposed project, also consider and analyze project alternatives that would reduce

adverse environmental impacts. (Pub. Resources Code, § 21061; see also id.,

§§ 21001, subd. (g), 21002, 21002.1, subd. (a), 21003, subd. (c); Goleta, supra, 52

Cal.3d at pp. 564-565.) The CEQA Guidelines state that an EIR must “describe a

range of reasonable alternatives to the project . . . which would feasibly attain

most of the basic objectives of the project but would avoid or substantially lessen

any of the significant effects of the project . . . .” (Cal. Code Regs., tit. 14,

§ 15126.6, subd. (a).) An EIR need not consider every conceivable alternative to a

project or alternatives that are infeasible. (Ibid.; see also Goleta, supra, at p. 574.)

“In determining the nature and scope of alternatives to be examined in an

EIR, the Legislature has decreed that local agencies shall be guided by the

doctrine of ‘feasibility.’ ” (Goleta, supra, 52 Cal.3d at p. 565.) CEQA defines

“feasible” as “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; see also Cal. Code

Regs., tit. 14, § 15364.)


7

“In interpreting CEQA, we accord the Guidelines great weight except

where they are clearly unauthorized or erroneous.” (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova, supra,
40 Cal.4th at p. 428,
fn. 5.)

18



“There is no ironclad rule governing the nature or scope of the alternatives

to be discussed other than the rule of reason.” (Cal. Code Regs., tit. 14, § 15126.6,

subd. (a).) The rule of reason “requires the EIR to set forth only those alternatives

necessary to permit a reasoned choice” and to “examine in detail only the ones that

the lead agency determines could feasibly attain most of the basic objectives of the

project.” (Id., § 15126.6, subd. (f).) An EIR does not have to consider

alternatives “whose effect cannot be reasonably ascertained and whose

implementation is remote and speculative.” (Id., § 15126.6, subd. (f)(3).)

The process of selecting the alternatives to be included in the EIR begins

with the establishment of project objectives by the lead agency. “A clearly written

statement of objectives will help the lead agency develop a reasonable range of

alternatives to evaluate in the EIR and will aid the decision makers in preparing

findings . . . . The statement of objectives should include the underlying purpose

of the project.” (Cal. Code Regs., tit. 14, § 15124, subd. (b).)

Here, CALFED identified four objectives and an underlying purpose for the

CALFED Program. (See ante, pp. 9-10.) The four objectives are “(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.’ ”

The underlying purpose of the CALFED Program, as noted (see ante,

p. 10), is “to develop and implement a long-term comprehensive plan that will

19



restore ecological health and improve water management for beneficial uses of the

Bay-Delta system.” The PEIS/R further explains: “In the past two decades,

disagreements regarding the use and management of the Delta have increasingly

taken the form of protracted litigation and legislative battles. These disagreements

have not yielded solutions to the water-related conflicts centering in the Delta.

The CALFED Program was established to reduce the conflicts and provide a

solution that competing interests could support. . . . Because both of the purposes

composing the CALFED mission are essential to the success of the CALFED

Program, only alternatives that would both restore ecological health and improve

water management for beneficial uses of the Bay-Delta system were carried

forward for detailed consideration.” (PEIS/R, supra, p. 1-13; italics added.)

Accordingly, the PEIS/R describes its integrated approach to achieving all four

objectives concurrently as “the very foundation of the Program.” (Id., Technical

Appen., Response to Comments (vol. I), p. IA-2-2.) Nothing less can achieve the

underlying fundamental purpose of reducing conflicts by providing a solution that

competing interests can support.

During phase I, CALFED studied the feasibility of limiting or reducing

exports of Bay-Delta water by means of a “demand reduction approach.”

Techniques considered for reducing demand included water conservation, water

reclamation, water pricing, and retirement and fallowing of agricultural land. A

reduced exports alternative employing these techniques was one of the 10

alternatives submitted for public comment during phase I. (See, ante, p. 12.) The

public comments revealed substantial opposition to the strategy of reducing

demand by retiring agricultural land, however, and CALFED staff concluded that

actions to implement that strategy would exacerbate rather than reduce the

conflicts that the CALFED Program was seeking to address. The strategies of

water conservation and reclamation, on the other hand, were so popular that

20



CALFED staff decided that an aggressive water use efficiency program

incorporating those strategies should form part of each of the program alternatives.

The PEIS/R summarized this process and explained why a reduced export

alternative was not further studied: “A primary objective of the CALFED

Program is to reduce the mismatch between Bay-Delta water supplies and current

and projected beneficial uses dependent on the Bay-Delta system. The CALFED

objectives that were developed to meet this primary objective are described in

Section 1.2 in the [PEIS/R]. Among these objectives are to improve export water

supplies to help meet beneficial use needs and to improve the adequacy of Bay-

Delta water to meet Delta outflow needs. These objectives and the alternatives

designed to meet these and other CALFED Program objectives are based on the

alternatives and Program goals developed during Phase I. Among these were

alternatives that emphasized water use efficiency and de-emphasized or eliminated

action to improve export water supplies and improve the adequacy of Bay-Delta

water to meet Delta outflow needs. Based on input from public workshops,

scoping meetings, the BDAC, and the CALFED agencies, CALFED concluded

that these actions would not achieve the primary objective for water supply

reliability. Water use efficiency is an important element of the CALFED Program.

(See the Water Use Efficiency Program Plan.) However, water 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.

Similarly, an alternative that would achieve water quality objectives by reducing

or capping exports would prevent the CALFED Program from achieving its

objectives regarding water supply reliability.” (PEIS/R, supra, Technical Appen.,

Response to Comments (vol. I), p. CR-30.)

As the Court of Appeal correctly pointed out, an EIR should not exclude an

alternative from detailed consideration merely because it “would impede to some

21



degree the attainment of the project objectives.” (Cal. Code Regs., tit. 14,

§ 15126.6, subd. (b).) But an EIR need not study in detail an alternative that is

infeasible or that the lead agency has reasonably determined cannot achieve the

project’s underlying fundamental purpose. (Goleta, supra, 52 Cal.3d at p. 574 [“a

project alternative which cannot be feasibly accomplished need not be extensively

considered”].) In the CALFED program, feasibility is strongly linked to

achievement of each of the primary program objectives. Past experience has

shown that piecemeal efforts to address the Bay-Delta’s problems have failed

because those problems are interrelated and because conflicting interest groups

and stakeholders can block actions that promote some interests at the expense of

others. Accordingly, CALFED determined that the four primary project

objectives had to be addressed concurrently in an integrated manner if the project

was to be successful and therefore feasible. CALFED determined that a reduced

export alternative would seriously compromise the water supply objective, and for

this reason would not achieve this basic underlying goal of reducing conflicts and

providing a solution that competing interests could support.

Petitioner RCRC disagrees with CALFED’s determination and argues in

this court that the reduced exports alternative could meet the water supply

reliability objective. RCRC maintains that the water supply reliability objective

encompassed multiple water supply goals, including in-Delta beneficial use needs

and demands by upstream populations and riparian users. It asserts that CALFED

never equated water supply reliability with increasing Delta exports, nor did this

program objective focus on supplying water to south-of-Delta users. Therefore,

according to RCRC, even a reduced export alternative could satisfy the water

supply reliability objective if other water supply goals, such as the ones for in-

Delta and north-of-Delta uses, were met.

22



We are not persuaded that improving water supply reliability for in-Delta

and north-of Delta users alone can satisfy the water supply reliability objective. In

the PEIS/R, CALFED proposed to reduce the mismatch between water supply and

demand by addressing a series of objectives that “collectively reduce the conflict

among beneficial water users . . . .” (PEIS/R, supra, p. 1-7, italics added.) These

objectives include, among other things, in-Delta beneficial uses as well as

improvement of export water supplies. RCRC correctly points out that

CALFED’s water supply reliability goal does not focus on water supply to export

users in the south. Nonetheless, the PEIS/R also clearly states that “improv[ing]

export water supplies” (ibid.) is one of several objectives that must be collectively

met to accomplish the overall water supply reliability goal. Because CALFED’s

goal of water supply reliability encompasses all beneficial uses of Delta water, it

cannot be achieved by an alternative that benefits some groups of water users at

the expense of other users.

Therefore, CALFED properly exercised its discretion when it declined to

carry the reduced export alternative over for study into the final PEIS/R after

concluding that such an alternative would not achieve the CALFED Program’s

fundamental purpose and thus was not feasible.

Although a lead agency may not give a project’s purpose an artificially

narrow definition, a lead agency may structure its EIR alternative analysis around

a reasonable definition of underlying purpose and need not study alternatives that

cannot achieve that basic goal. For example, if the purpose of the project is to

build an oceanfront resort hotel (Goleta, supra, 52 Cal.3d at p. 561) or a

waterfront aquarium (Save San Francisco Bay Assn. v. San Francisco Bay

Conservation etc. Com. (1992) 10 Cal.App.4th 908, 924-925), a lead agency need

not consider inland locations. (See also Sequoyah Hills Homeowners Assn. v. City

of Oakland (1993) 23 Cal.App.4th 704, 715 [lead agency need not consider lower

23



density alternative that would defeat primary purpose of providing affordable

housing].)

CALFED’s determinations that an integrated solution was necessary to the

success of the program, and that the water supply objective could not feasibly be

achieved with a reduced exports alternative, are supported by substantial evidence

and consistent with the rule of reason. Because each alternative included in the

PEIS/R (except the no action alternative) requires balanced progress in achieving

each of the four primary objectives, improvement in water supply (which may

entail increased exports) will occur only if accompanied by improvement in Bay-

Delta ecosystem restoration. The program design thus includes a built-in

safeguard to ensure that any increase in exports does not result in further

deterioration of the Bay-Delta’s ecological health. As the PEIS/R explains,

“Improvements in ecosystem health will reduce the conflict between

environmental water use and other beneficial uses, and allow more flexibility in

water management decisions.” (PEIS/R, supra, p. 2-7.)

The Court of Appeal erred also in failing to sufficiently distinguish between

preexisting environmental problems in the Bay-Delta, on the one hand, and

adverse environmental effects of the proposed CALFED Program. Under CEQA,

the range of alternatives that an EIR must study in detail is defined in relation to

the adverse environmental impacts of the proposed project. An EIR must include

a description of feasible project alternatives that would substantially lessen the

project’s significant environment effects. (Pub. Resources Code, § 21061; Cal.

Code Regs., tit. 14, § 15126.6, subds. (d), (f).) The project’s environmental

effects, in turn, are determined by comparison with the existing “baseline physical

conditions.” (Cal. Code Regs., tit. 14, § 15125, subd. (a); see County of Amador v.

El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952.)

24



Here, the Court of Appeal gave this explanation for its conclusion that the

PEIS/R should have included a reduced export alternative: “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.”

The main thrust of the Court of Appeal’s reasoning was that reducing Bay-

Delta water exports would “be environmentally superior” because it would

facilitate achievement of the ecosystem restoration component of the CALFED

Program and thereby more effectively address the Bay-Delta’s existing

environmental problems. But those problems would continue to exist even if there

were no CALFED program, and thus under CEQA they are part of the baseline

conditions rather than program-generated environmental impacts that determine

the required range of program alternatives.

Insofar as the Court of Appeal identified “expansion of water storage

facilities” by means of “dam construction” as a source of negative environmental

effects resulting from the CALFED Program,8 the PEIS/R provided a reasonable


8

The preferred program alternative contemplates expanding both surface and

groundwater storage capacity. The PEIS/R identifies enlarging Shasta Lake,
expanding the Los Vaqueros reservoir, and constructing an in-Delta storage
facility as being “representative” of potential projects for achieving this goal rather
than as specific storage projects selected for implementation. Each of these

(Footnote continued on next page.)

25



range of alternatives to avoid or substantially lessen those effects. The PEIS/R

analyzed each of the program alternatives both with and without additional

storage. Although the PEIS/R did not analyze a reduced exports alternative, it did

analyze no-additional-storage alternatives that would avoid any adverse

environmental consequences of constructing new dams or enlarging existing ones.

Under CEQA, this was sufficient. (Pub. Resources Code, § 21061; Cal. Code

Regs., tit. 14, §§ 15125, subd. (a), 15126.6, subds. (d), (f).) Also, as explained

above, the decision to concurrently pursue each of CALFED Program’s objectives

means that no additional storage will be built, no new stream diversions will

occur,9 and Bay-Delta water exports will not increase, unless accompanied by

measurable progress in restoring the Bay-Delta ecosystem.

As the CALFED PEIS/R itself recognizes, Bay-Delta ecosystem restoration

to protect endangered species is mandated by both state and federal endangered

species laws, and for this reason water exports from the Bay-Delta ultimately must

be subordinated to environmental considerations. The CALFED Program is

premised on the theory, as yet unproven, that it is possible to restore the Bay-

Delta’s ecological health while maintaining and perhaps increasing Bay-Delta

water exports through the CVP and SWP. If practical experience demonstrates

that the theory is unsound, Bay-Delta water exports may need to be capped or

reduced. At this relatively early stage of program design, however, we conclude



(Footnote continued from previous page.)

possible projects would, of course, require a separate and site-specific
environmental impact report.
9

Any new stream diversion, or any expansion of an existing stream

diversion, would be a second-tier project requiring its own site-specific EIR under
CEQA, including a description of project alternatives.

26



that CALFED properly applied the rule of reason when it decided to consider in

the PEIS/R only alternatives that have the potential to both achieve ecosystem

restoration goals and meet current and projected water export demands, and that

will provide balanced progress in all four of the program areas. Failure to include

a reduced exports alternative thus was not an abuse of discretion.

IV. PROGRAM WATER SOURCE IDENTIFICATION

The Court of Appeal found the CALFED PEIS/R lacking in sufficient

detail regarding the sources of water that would be used to implement the

CALFED Program. The court asserted that “[i]n 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.’ [Citation.]”

Although the Court of Appeal conceded that “[t]he PEIS/R may not be able

to provide a precise determination of the sources for Program water,” it concluded

that “the PEIS/R must include an analysis of the impacts of supplying such water,

from whatever source.” The court stated: “CALFED has approved a Program

requiring large amounts of water to fulfill its objectives without analyzing the

environmental impacts of supplying such water.”

We conclude that the Court of Appeal erred on both points — the need to

more specifically identify potential water sources and the need for additional

analysis of the impacts of supplying water from each identified potential source.

As we explain, CALFED’s PEIS/R is a first-tier program EIR, and CEQA does

not mandate that a first-tier program EIR identify with certainty particular sources

of water for second-tier projects that will be further analyzed before

27



implementation during later stages of the program. Rather, identification of

specific sources is required only at the second-tier stage when specific projects are

considered. Similarly, at the first-tier program stage, the environmental effects of

obtaining water from potential sources may be analyzed in general terms, without

the level of detail appropriate for second-tier, site-specific review. The CALFED

PEIS/R satisfies these requirements.

A program EIR, as noted, is “an EIR which may be prepared on a series of

actions that can be characterized as one large project” and are related in specified

ways. (Cal. Code Regs., tit. 14, § 15168, subd. (a).) An advantage of using a

program EIR is that it 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.”

(Id., § 15168, subd. (b)(4).) Accordingly, a program EIR is distinct from a project

EIR, which is prepared for a specific project and must examine in detail site-

specific considerations. (Id., § 15161.)

Program EIR’s are commonly used in conjunction with the process of

tiering. (See Laurel Heights Improvement Assn. v. Regents of University of

California, supra, 47 Cal.3d at p. 399, fn. 8.) Tiering is “the coverage of general

matters in broader EIRs (such as on general plans or policy statements) with

subsequent narrower EIRs . . . .” (Cal. Code Regs., tit. 14, § 15385.) Tiering is

proper “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, subd. (a); see also Cal. Code Regs., tit. 14, § 15385,

subd. (b).)

In addressing the appropriate amount of detail required at different stages in

the tiering process, the CEQA Guidelines state that “[w]here a lead agency is

28



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.” (Cal. Code Regs., tit. 14, § 15152, subd. (c).) This

court has explained that “[t]iering is properly used to defer analysis of

environmental impacts and mitigation measures to later phases when the impacts

or mitigation measures are not determined by the first-tier approval decision but

are specific to the later phases.” (Vineyard Area Citizens for Responsible Growth,

Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 431.)

The text of the CALFED PEIS/R itself explains its scope and purpose in the

tiering scheme: “The Program currently consists of multiple possible actions that

are diverse, geographically dispersed, and described in general terms. . . . [¶]

[The PEIS/R] provides a broad and comprehensive overview of the potential

actions that could be taken by the Program. It describes, in a broad sense, the

overall and long-term environmental consequences of all the potential proposed

actions at the end of the Program’s 30-year time span. This [PEIS/R] is structured

to be used as a tiering document. Individual, second-tier projects can use this

analysis as a basis from which to supplement and refine the level of detail and can

incorporate by reference relevant provisions in the [PEIS/R], such as the

cumulative impacts.” (PEIS/R, supra, p. 4-2.) Because it is a first-tier, program

EIR, the CALFED PEIS/R “does not analyze site-specific impacts of future

projects at proposed locations.” (Id., p. 3-5.)

Consistent with its function as a first-tier document, the PEIS/R identifies

potential sources of water — including purchases from willing sellers, water

29



conservation by agricultural and urban users, and new or expanded surface or

underground storage — that will be needed for the CALFED Program’s

components, and it includes tables estimating, for each program alternative,

potential water acquisitions from willing sellers along various rivers in the

Program areas. Further, the PEIS/R addresses the significant impacts of taking

water from the identified potential sources in discussing the anticipated

environmental effects of the Program’s common components. Environmental

impacts of the Program are analyzed in the PEIS/R by resource topic (including

water supply and water management, water quality, fisheries and aquatic systems,

vegetation and wildlife, agricultural land and water use). These impacts are then

discussed in general terms for the five CALFED geographic regions (the

Sacramento Valley, the San Joaquin Valley, the Delta, the San Francisco Bay

region, and Southern California). Although it does not identify specific future

water sources with certainty, the PEIS/R does evaluate in general terms the

potential environmental effects of supplying water from potential sources. This

was sufficient.

To support its conclusion that the PEIS/R lacked appropriate detail

regarding the sources of water that would be used to implement the CALFED

Program, and the environmental effects of obtaining water from those sources, the

Court of Appeal relied on Stanislaus Natural Heritage Project v. County of

Stanislaus (1996) 48 Cal.App.4th 182, and Santiago County Water Dist. v. County

of Orange (1981) 118 Cal.App.3d 818. In each of those decisions, an EIR for a

project was found defective for failing to identify the source of water needed for

the project and the environmental effects of obtaining the needed water.

(Santiago, supra, at p. 829; Stanislaus, supra, at pp. 205-206.) Unlike the

CALFED program at issue here, however, those projects involved proposed

commercial land developments, with readily quantifiable water requirements, on

30



identified sites. (Santiago, supra, at p. 822 [sand and gravel mining operation];

Stanislaus, supra, at p. 186 [“29,500-acre, 5,000-residential-unit destination resort

and residential community”].) Although the project in Stanislaus was to be

developed “in four overlapping phases over twenty-five years” (Stanislaus, supra,

at p. 188), it was in no relevant sense comparable to the broad, general, multi-

objective, policy-setting, geographically dispersed CALFED Program.10

More relevant here is Rio Vista Farm Bureau Center v. County of Solano

(1992) 5 Cal.App.4th 351, which concerned the validity of a final EIR for a

county’s hazardous waste management plan. (Id. at p. 362.) The plan did not

select any specific sites for hazardous waste disposal facilities, but instead merely

designated certain areas within the county as being potentially consistent with

stated criteria for such a facility. (Id. at p. 364.) At issue was whether the EIR

was defective for failing to provide a sufficient project description or to

sufficiently analyze the environment impacts of, possible mitigation measures for,

and project alternatives to, constructing hazardous waste disposal facilities at

identified potential sites. (Id. at p. 369.) Rejecting the claim, the Court of Appeal

stated: “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 EIR] consistently

state that no actual future sites have been recommended or proposed. For that


10

Distinguishable on the same grounds is this court’s recent decision in

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova,
supra,
40 Cal.4th 412, which concerned the sufficiency of a final EIR for a site-
specific project to develop a 6,000-acre, 22,000-residential-unit “ ‘master planned
community.’ ” (Id. at pp. 421-422.)

31



reason, the [final EIR] is intended to be a ‘program EIR’ or ‘tiering EIR,’ with

subsequent ‘project EIR’s’ to follow in the event specific, identified facilities are

proposed in the future.” (Id. at p. 371, fn. omitted.) The Court of Appeal added:

“Where, as here, an EIR cannot provide meaningful information about a

speculative future project, deferral of an environmental assessment does not

violate CEQA.” (Id. at p. 373.) The Rio Vista court concluded: “Considering the

speculative nature of any secondary effects from an uncertain future facility,

which will be subject to its own separate environmental review, we conclude that

no further findings on environmental impacts or the rationale for such findings

was reasonably required from the [final EIR].” (Id. at p. 375.)

Similarly here, the description of potential water sources for the CALFED

Program’s future projects and the environmental effects of obtaining water from

those sources must be appropriately tailored to the current first-tier stage of the

planning process, with the understanding that additional detail will be forthcoming

when specific second-tier projects are under consideration. (See Vineyard Area

Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40

Cal.4th at p. 434 [“the burden of identifying likely water sources for a project

varies with the stage of project approval involved”].) The PEIS/R has complied

with this requirement.

The CALFED Program is to be implemented over a 30-year period and the

sources of water actually used depend on future decisions between willing buyers

and sellers. It is therefore impracticable to foresee with certainty specific sources

of water and their impacts. Furthermore, water supply plans must remain flexible

as they are subject to changing conditions, such as changes in population

projections, demographics, new or revised environmental restrictions, pollution of

sources, or water supply effects from prolonged droughts. As a result, one cannot

be certain that a particular future water source identified at the first-tier stage will

32



ever materialize, or that the source will even be suitable 10 or 20 years later as

changed conditions may make another source more advantageous.

Given the uncertain nature of water acquisitions over a 30-year period, the

PEIS/R provided region-by-region analysis of the general impacts of water

acquisitions. For example, it noted that acquiring water from agricultural lands for

ecosystem restoration would likely result in significant fallowing of the land or

shifting of crops. Such region-by-region identification of potential impacts allows

decision makers to intelligently consider the consequences of water acquisitions

before approving it, while leaving more site-specific details for later project-level

EIR’s. (See Cal. Code Regs., tit. 14, §§ 15151, 15152.)

The purpose of tiering is to allow a lead agency to focus on decisions ripe

for review. (Pub. Resources Code, § 21093, subd. (a); Cal. Code Regs., tit. 14,

§ 15385, subd. (b).) An agency that chooses to tier may provide analysis of

general matters in a broader EIR, then focus on narrower project-specific issues in

later EIR’s. (Cal. Code Regs., tit. 14, § 15152, subd. (a).) Future environmental

documents may incorporate by reference general discussions from the broader

EIR, but a separate EIR is required for later projects that may cause significant

environmental effects inadequately addressed in the earlier report. (Id., § 15152,

subds. (a) & (f).)

The PEIS/R complied with CEQA by identifying potential sources of water

and analyzing the associated environmental effects in general terms. The level of

detail contained in the PEIS/R’s impact analysis was consistent with its first-tier

programmatic nature. Although later project-level EIR’s may not simply tier from

the PEIS/R analysis and will require an independent determination and disclosure

of significant environmental impacts (see Cal. Code Regs., tit. 14, § 15152, subd.

(f)), this stage of program development did not require a more detailed analysis of

the Program’s future water sources, nor did it appear practicable. By compelling

33



CALFED at the first-tier stage to provide greater detail about potential sources of

water for second-tier projects, the Court of Appeal’s decision undermined the

purpose of tiering and burdened the program EIR with detail that would be more

feasibly given and more useful at the second-tier stage. Such details were properly

deferred to the second-tier of the CALFED Program, when specific projects can be

more fully described and are ready for detailed consideration.

V. ENVIRONMENTAL WATER ACCOUNT

The Environmental Water Account (EWA) is a second-tier project that the

CALFED agencies proposed in conjunction with the ecosystem restoration

program. The EWA is based on the idea that “flexible management of water

operations” could effectively balance the competing demands of fishery,

restoration and recovery needs with the need to improve supply reliability and

quality for water users. Without reducing deliveries to water users, the EWA

provides water for fish by authorizing the state and federal governments to

acquire, bank, transfer and borrow water beyond that available through existing

regulatory actions.

CALFED disclosed the idea of an EWA in its December 1998 revised

phase II report, released about nine months after CALFED’s first draft PEIS/R.

The revised phase II report explained a proposal for how an EWA might operate.

It set forth the possibility of using “transfers, options and acquisitions” to create a

water account that fisheries could draw on to provide additional protection.

CALFED’s final PEIS/R also addressed the EWA in general terms, but the Court

of Appeal held that the PEIS/R provided inadequate detail on the EWA.

The Court of Appeal emphasized the PEIS/R’s omission of certain

additional details regarding the EWA’s anticipated initial project-level actions.

These details were contained in a document entitled “California’s Water Future:

A Framework for Action” (Action Framework) that was released shortly before

34



certification of the PEIS/R. The CALFED agencies had continued to refine this

proposed project during the time between the release of the draft PEIS/R and the

final PEIS/R. The Action Framework differed from CALFED’s prior EWA

disclosures primarily by specifying actual sources for the EWA’s initial assets.

These sources included water available from “State Water Pumping of (b)(2)/ERP

Upstream Releases,” “Export/Inflow Ratio Flexibility” and water purchases north

of the Delta and south of the Delta.

The Court of Appeal found this information should have been included in

the PEIS/R: “Use of a programmatic EIR is not an excuse to defer analysis of the

significant impacts of the program. (Guidelines [Cal. Code Regs., tit. 14],

§ 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.” The State of California argued that this information was

more appropriately included in a project-level EIR and that “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 [Record of

Decision].’ ”

Under CEQA’s tiering principles, it is proper for a lead agency to use its

discretion to focus a first-tier EIR on only the general plan or program, leaving

project-level details to subsequent EIR’s when specific projects are being

considered. (See Cal. Code Regs., tit. 14, § 15152, subd. (b).) This type of tiering

permits a lead agency to use a first-tier EIR to adequately identify “significant

effects of the planning approval at hand” while deferring the less feasible

development of detailed, site-specific information to future environmental

documents. (See id., § 15152, subd. (c).) In determining the adequacy of an EIR,

35



the CEQA Guidelines look to whether the report provides decisionmakers with

sufficient analysis to intelligently consider the environmental consequences of a

project. (Id., § 15151.) The CEQA Guidelines further provide that “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.” (Ibid.) The Court of Appeal erred in finding

the CALFED PEIS/R’s level of analysis of the EWA inadequate because (1) the

PEIS/R adequately identified the significant environmental effects of an EWA,

and (2) EWA details disclosed in the Action Framework properly belonged in a

second-tier CEQA document.

The PEIS/R fulfills the function of a first-tier document because it analyzes

the environmental impacts of the mechanisms that will establish and develop the

EWA — water transfers (including purchases from willing sellers), reservoirs,

groundwater storage, and more flexible operations of water projects. Unlike a

project with localized or site-specific water requirements, the EWA is based on

flexible water management and its water assets may exist anywhere in the state.

The EWA’s water requirements are met through the establishment of what

CALFED’s 1998 revised phase II report describes as a “portfolio of assets.” This

portfolio of assets may include “water, entitlement to capacity in water diversion

facilities, aqueducts, storage and money.” Also, “an EWA could use transfers,

options and acquisitions to obtain water” and “[v]ariances in export standards

could be granted in the interest of generating additional EWA water.” As the

Court of Appeal noted, CALFED’s response to comments in the PEIS/R further

explains that many of the initial EWA assets “will come from access to existing

[p]roject flexibility, new changes in project flexibility (for example, joint point of

diversion and export/inflow ratio flexibility) and through voluntary purchases . . .

36



on the water transfer market.” (PEIS/R, supra, Technical Appen., Response to

Comments (vol. I), p. CR-80.)

Although the Farm Bureau recognized the “numerous distinct and separate

water acquisition projects” necessary to develop EWA assets, it nonetheless

argued that the PEIS/R was additionally required to provide a “big-picture” impact

analysis of EWA’s overall need to acquire one million acre-feet of water. What

the Farm Bureau fails to take into account is that the impacts of the separate water

acquisition projects used to develop EWA assets are the impacts of the program.

Because the EWA is not a localized program, it is not reasonably feasible to

require quantification of the “big picture” impacts of its water needs. Impacts

result from each water acquisition project launched to develop EWA assets.

Therefore, when the PEIS/R analyzed the impacts of using water transfers,

groundwater storage, and other mechanisms to develop the EWA, it did not

unjustifiably defer analysis of the significant impacts of the EWA, but rather it

adequately identified them. (See Cal. Code Regs., tit. 14, § 15152, subd. (c).)

Such analysis allows decision makers to intelligently consider the environmental

consequences of an EWA before approving it. (See id., § 15151.)

The Court of Appeal also erred when it held that specific EWA details in

the Action Framework that preceded the PEIS/R certification should have been

included in the PEIS/R. The PEIS/R contained a level of detail appropriate to its

first-tier, programmatic nature. In determining the degree of specificity required

in an EIR, the CEQA Guidelines provide that the “degree of specificity required in

an EIR will correspond to the degree of specificity involved in the underlying

activity which is described in the EIR.” (Cal. Code Regs., tit. 14, § 15146.) For

example, an EIR on a construction project will necessarily be more specific than

an EIR on the adoption or amendment of a comprehensive zoning ordinance or a

local general plan. (Id., subds. (a) & (b).)

37



The analysis in Al Larson Boat Shop, Inc. v. Board of Harbor

Commissioners of the City of Long Beach (1993) 18 Cal.App.4th 729 (Al Larson)

is instructive for this case. At issue in Al Larson was the propriety of deferring

analysis to future project EIR’s for a city’s port development plan. (Id. at p. 743.)

The plan proposed the use of six anticipated projects to develop the port to meet

increased demand for commercial cargo handling. (Id. at p. 742.) The Long

Beach Board of Harbor Commissioners chose, however, to defer approval on

specific sites for those six projects to second-tier project EIR’s, two of which were

considered nearly concurrently with the final first-tier EIR. (Id. at p. 743.) The

Court of Appeal upheld the board’s decision to tier, stating: “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 . . . . If that

decision is made in the affirmative then each individual project can be reviewed

in-depth on its merits in a project EIR . . . .” (Id. at p. 744.) In Al Larson, the

board had committed itself to “ ‘conduct individual environmental assessments in

accordance with CEQA on a project-by-project basis for each of the indicated

projects.’ ” (Id. at p. 742.)

The CALFED program analyzed in the PEIS/R is as broad if not broader in

scope than the port development plan analyzed in the first-tier EIR at issue in Al

Larson, supra, 18 Cal.App.4th 729. As stated earlier, the text of the CALFED

PEIS/R itself states: “The Program currently consists of multiple possible actions

that are diverse, geographically dispersed, and described in general terms.”

Similarly the Action Framework describes the CALFED Program as the “largest,

most comprehensive water management program in the world.” The 30-year

CALFED Program establishes a complex water management system that seeks to

concurrently achieve the primary program objectives of ecosystem restoration,

water supply reliability, levee system integrity, and water quality improvement.

38



The PEIS/R’s description and analysis of the EWA, like the analysis of Program

water sources, was therefore appropriately tailored to the first-tier planning stage

with its general discussion of the impacts of EWA water transfers, water storage,

and flexible operations of water management. (See Vineyard Area Citizens for

Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 434.)

In contrast with the broad programmatic nature of the PEIS/R, the EWA

was designated a second-tier project from its inception. In its 1998 revised phase

II report, CALFED set forth a series of actions for implementing Stage 1 (the first

seven years) of the Program, making clear that these actions were subject to and

could be altered as a result of second-tier environmental review. The EWA is

listed as a Stage 1 action. CALFED’s 2000 Action Framework reiterated the

EWA’s status as a second-tier Stage 1 action, dependent upon “CALFED

concluding its programmatic environmental review and subsequent site-specific

analyses.” Thus, CALFED intended the EWA to be a second-tier project, subject

to later, project-specific environmental analysis.

CALFED worked out some of the EWA details while it was completing the

final PEIS/R, and it properly released those details in the second-tier Action

Framework in June 2000, one month before it released the final PEIS/R. The

Action Framework set out specific details regarding the EWA project components

whose general impacts were analyzed in the PEIS/R. For example, the PEIS/R

generally analyzed the impacts of water transfers while the Action Framework

specifically established that some initial EWA assets would be acquired through

south-of-Delta and north-of-Delta water purchases. These second-tier project

details were not, as the Court of Appeal asserted, “significant information” that

should have been included in the first-tier, final PEIS/R. The PEIS/R therefore

complied with CEQA in analyzing the impacts of the EWA in general terms and

deferring project-level details to subsequent project-level EIR’s.

39



VI. CONCLUSION AND DISPOSITION

The CALFED final PEIS/R complied with CEQA.

The Court of Appeal’s judgment is reversed.

KENNARD,

J.

WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


40



See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 133 Cal.App.4th 154
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S138974
Date Filed: June 5, 2008
__________________________________________________________________________________

Court:
Superior
County: Sacramento
Judge: Patricia C. Esgro
__________________________________________________________________________________

Attorneys for Appellant:

Brenda Washington Davis, Rebecca Dell Sheehan, John R. Weech, Ronda Azevedo Lucas for Plaintiffs
and Appellants Don Laub, Debbie Jacobsen, Ted Sheely and California Farm Bureau Federation.

Gibson, Dunn & Crutcher, Christopher H. Buckley, Jr., Alan Neal Bick and Christeon J. Constanzo 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., Rudy Mussi and South Delta Water Agency.

Brian E. Gray; Kerr & Wagstaffe, James M. Wagstaffe, Michael J. von Loewenfeldt and Keith K. Fong for
Plaintiff and Appellant Regional Council of Rural Counties.

Best Best & Krieger and Roderick E. Walston for California Chamber of Commerce, California Municipal
Utilities Association and Los Angeles Area Chamber of Commerce as Amici Curiae on behalf of Plaintiffs
and Appellants.

Rossman and Moore, Antonio Rossman, Roger Moore, David R. Owen; Hamilton Candee, Katherine S.
Poole; and Thomas J. Graff for the Planning and Conservation League, Natural Resources Defense Council
and Environmental Defense as Amici Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Tom Greene and Janet Gaard, Chief Assistant Attorneys General, J. Matthew Rodriquez, 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, Joseph
Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental Protection
Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick Wright,
CALFED Bay-Delta Program and Department of Fish and Game.








Page 2 – S138974 – counsel continued

Attorneys for Respondent:

Timothy N. Washburn; Shute, Mihaly & Weinberger and Ellen J. Garber for Sacramento Area Flood
Control Agency as Amicus Curiae on behalf of Defendants and Respondents State of California, Joseph
Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental Protection
Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick Wright,
CALFED Bay-Delta Program and Department of Fish and Game.

Heller Ehrman White & McAuliffe, Nicholas W. van Aelstyn, Patricia K. Olver and Alissa B. Kolek for
The Nature Conservancy as Amicus Curiae on behalf of Defendants and Respondents State of California,
Joseph Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental
Protection Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick
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.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O’Hanlon, William T. Chisum and Jon D. Rubin for
Real Party in Interest and Respondent Westlands Water District.

Sonnenschein Nath & Rosenthal, 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, Sydney B. Bennion, Karen L. Tachiki, Linus S. Masouredis and Adam C. Kear for
Real Party in Interest and Respondent The Metropolitan Water District of Southern California.

Hatch & Parent and Lisabeth D. Rothman for California Building Industry Association, Building Industry
Legal Defense Foundation, Homebuilders Association of Northern California, Building Industry of San
Diego and California Business Properties Association as Amici Curiae on behalf of Defendants and
Respondents State of California, Joseph Graham Davis, California Resources Agency, Mary S. Nichols,
California Environmental Protection Agency, Winston H. Hickox, Department of Water Resources,
Thomas Hannigan, Patrick Wright, CALFED Bay-Delta Program and Department of Fish and Game and
Real Parties in Interest State Water Contractors, The Metropolitan Water District of Southern California
and 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.

Weston Benshoof Rochefort Rubalcava & MacCuish, Edward J. Casey and Tammy L. Jones for The
Association of California Water Agencies as Amicus Curiae.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Alan Neal Bick
Gibson, Dunn & Crutcher
4 Park Plaza, Suite 1400
Irvine, CA 92614-8557
(949) 451-3800

Brian E. Gray
200 McAllister Street
San Francisco, CA 94102
(415) 565-4719

Danae J. Aitchison
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 322-5522

Adam C. Kear
Senior Deputy General Counsel
700 North Alameda Street
Los Angeles, CA 90054-0153
(213) 217-6057


Petition for review after the Court of Appeal reversed a judgment granting a petition for writ of mandate. The case addresses the alternatives analysis and information included in a programmatic Environmental Impact Statement/Report and the appropriate level of tiering for different phases of the programmatic analysis.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 06/05/200843 Cal. 4th 1143, 184 P.3d 709, 77 Cal. Rptr. 3d 578S138974Review - Civil Appealclosed; remittitur issued

REGIONAL COUNCIL OF RURAL COUNTIES v. STATE OF CALIFORNIA (S138975)


Parties
1Schwarzenegger, Arnold (Defendant and Respondent)
Represented by Virginia Arnoldy Cahill
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

2Nichols, Mary S. (Defendant and Respondent)
Represented by Virginia Arnoldy Cahill
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

3Nichols, Mary S. (Defendant and Respondent)
Represented by Daniel L. Siegel
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

4Laub, Don (Plaintiff and Appellant)
Represented by Alan N. Bick
Gibson Dunn & Crutcher, LLP
3161 Michelson Drive
Irvine, CA

5Laub, Don (Plaintiff and Appellant)
Represented by Christian C. Scheuring
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

6Laub, Don (Plaintiff and Appellant)
Represented by John Rexford Weech
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

7California Farm Bureau Federation (Plaintiff and Appellant)
Represented by Alan N. Bick
Gibson Dunn & Crutcher, LLP
3161 Michelson Drive
Irvine, CA

8California Farm Bureau Federation (Plaintiff and Appellant)
Represented by Christian C. Scheuring
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

9California Farm Bureau Federation (Plaintiff and Appellant)
Represented by John Rexford Weech
California Department of Conservation/Legal Department
801 "K" Street
Sacramento, CA

10Metropolitan Water District (Defendant and Respondent)
Represented by Adam Conner Kear
Metropolitan Water District of Southern California
700 N. Alameda Street
Los Angeles, CA

11Metropolitan Water District (Defendant and Respondent)
Represented by James Grether Moose
Remy Thomas Moose & Manley, LLP
455 Capitol Mall, Suite 210
Sacramento, CA

12Metropolitan Water District (Defendant and Respondent)
Represented by Karen L. Tachiki
Metropolitan Water Distrist of Southern California
P.O. Box 54153
Santa Monica, CA

13Westlands Water District (Real Party in Interest and Respondent)
Represented by Daniel Joseph O'Hanlon
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

14Central Delta Water Agency (Plaintiff and Appellant)
Represented by Dante John Nomellini
Nomellini Grilli & McDaniel
P.O. Box 1461
Stockton, CA

15Central Delta Water Agency (Plaintiff and Appellant)
Represented by John H. Herrick
Attorney at Law
4255 Pacific Avenue, Suite 2
Stockton, CA

16State Water Contractors (Real Party in Interest)
Represented by Clifford W. Schulz
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

17State Water Contractors (Real Party in Interest)
Represented by Eric N. Robinson
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

18California Chamber Of Commerce (Amicus curiae)
Represented by Roderick Walston
Best Best & Krieger, LLP
2001 N. Main Street, Suite 390
Walnut Creek, CA

19California Municipal Utilities Association (Amicus curiae)
Represented by Roderick Walston
Best Best & Krieger, LLP
2001 N. Main Street, Suite 390
Walnut Creek, CA

20Los Angeles Area Chamber Of Commerce (Amicus curiae)
Represented by Roderick Walston
Best Best & Krieger, LLP
2001 N. Main Street, Suite 390
Walnut Creek, DC

21Association Of California Water Agencies (Amicus curiae)
Represented by Tammy Lynn Jones
Weston Benshoof et al., LLP
333 S. Hope Street, 16th Floor
Los Angeles, CA

22Association Of California Water Agencies (Amicus curiae)
Represented by Edward J. Casey
Weston Benshoof et al., LLP
333 S. Hope Street, 16th Floor
Los Angeles, CA

23Planning & Conservation League (Amicus curiae)
Represented by Antonio Rossmann
Attorney at Law
380 Hayes Street
San Francisco, CA

24Planning & Conservation League (Amicus curiae)
Represented by Roger B. Moore
Attorney at Law
380 Hayes Street
San Francisco, CA

25Planning & Conservation League (Amicus curiae)
Represented by David R Owen
Attorney at Law
380 Hayes Street
San Francisco, CA

26Environmental Defense Fund (Amicus curiae)
Represented by Thomas J. Graff
Environmental Defense Fund
123 Mission St., 28th Fl.
San Francisco, CA

27Natural Resources Defense Council (Amicus curiae)
Represented by Hamilton Candee
Natural Resources Defense Counsel
111 Sutter Street, 20th Floor
San Francisco, CA

28Natural Resources Defense Council (Amicus curiae)
Represented by Katherine Scott Poole
Natural Resources Defense Counsel
111 Sutter Street, 20th Floor
San Francisco, CA

29Sacramento Area Flood Control Agency (Amicus curiae)
Represented by Ellen J. Garber
Shute Mihaly et al.
396 Hayes Street
San Francisco, CA

30Sacramento Area Flood Control Agency (Amicus curiae)
Represented by Timothy Nevins Washburn
Sacramento Flood Control Agency
1007 Seventh Street, 5th Floor
Sacramento, CA

31California Building Industry Association (Amicus curiae)
Represented by Lisabeth Rothman
Hatch & Parent
11911 San Vicente Boulevard, Suite 350
Los Angeles, CA

32Building Industry Legal Defense Foundation (Amicus curiae)
Represented by Lisabeth Rothman
Hatch & Parent
11911 San Vicente Boulevard, Suite 350
Los Angeles, CA

33Homebuilders Association Of Northern California (Amicus curiae)
Represented by Lisabeth Rothman
Hatch & Parent
11911 San Vicente Boulevard, Suite 350
Los Angeles, CA

34Building Industry Association Of San Digeo (Amicus curiae)
Represented by Lisabeth Rothman
Hatch & Parent
11911 San Vicente Boulevard, Suite 350
Los Angeles, CA

35California Business Properties Association (Amicus curiae)
Represented by Lisabeth Rothman
Hatch & Parent
11911 San Vicente Boulevard, Suite 350
Los Angeles, CA

36Santa Clara Valley Water District (Real Party in Interest and Respondent)
Represented by Kevin T. Haroff
Sonnenschein Nath & Rosenthal, LLP
525 Market Street, 26th Floor
San Francisco, CA

37State Of California (Defendant and Respondent)
Represented by Virginia Arnoldy Cahill
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

38State Of California (Defendant and Respondent)
Represented by Danae Jean Aitchison
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

39State Of California (Defendant and Respondent)
Represented by Daniel L. Siegel
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

40Department Of Water Resources (Real Party in Interest and Respondent)
Represented by Danae Jean Aitchison
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

41Regional Council Of Rural Counties (Plaintiff and Appellant)
Represented by James N, Wagstaffe
Kerr & Wagstaffe, LLP
100 Spear Street, Suite 1800
San Francisco, CA

42Regional Council Of Rural Counties (Plaintiff and Appellant)
Represented by Brian Eugene Gray
Hastings College of Law
200 McAllister Street
San Francisco, CA

43San Joaquin River Group Authority (Intervener and Respondent)
Represented by Timothy O'Laughlin
O'Laughlin & Paris, LLP
P.O. Box 9259
Chico, CA

44San Luis & Delta-Mendota Water Authority (Respondent)
45Friant Water Users Authority (Intervener and Respondent)
Represented by Steven Larry Kabot
McCormick Kabot et al.
1220 W. Main Street
Visalia, CA

46Glenn-Colusa Irrigation District (Real Party in Interest and Respondent)
Represented by Stuart L. Somach
Somach Simmons & Dunn
813 Sixth Street, 3rd Floor
Sacramento, CA

47Kern County Water Agency (Real Party in Interest and Respondent)
Represented by Clifford W. Schulz
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

48Kern County Water Agency (Real Party in Interest and Respondent)
Represented by Eric N. Robinson
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

49Tulare Lake Basin Water Storage (Real Party in Interest and Respondent)
Represented by Clifford W. Schulz
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

50Tulare Lake Basin Water Storage (Real Party in Interest and Respondent)
Represented by Eric N. Robinson
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Floor
Sacramento, CA

51Jacobsen, Debbie (Plaintiff and Appellant)
Represented by Alan N. Bick
Gibson Dunn & Crutcher, LLP
3161 Michelson Drive
Irvine, CA

52Jacobsen, Debbie (Plaintiff and Appellant)
Represented by Christian C. Scheuring
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

53Jacobsen, Debbie (Plaintiff and Appellant)
Represented by John Rexford Weech
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

54Sheely, Ted (Plaintiff and Appellant)
Represented by Alan N. Bick
Gibson Dunn & Crutcher, LLP
3161 Michelson Drive
Irvine, CA

55Sheely, Ted (Plaintiff and Appellant)
Represented by Christian C. Scheuring
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

56Sheely, Ted (Plaintiff and Appellant)
Represented by John Rexford Weech
California Farm Bureau Federation
2300 River Plaza Drive
Sacramento, CA

57California Resources Agency (Defendant and Respondent)
Represented by Virginia Arnoldy Cahill
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

58California Resources Agency (Defendant and Respondent)
Represented by Daniel L. Siegel
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

59County Of San Joaquin (Real Party in Interest and Respondent)
Represented by Thomas Joseph Shephard
Neumiller & Beardslee
P.O. Box 20
Stockton, CA

60Panoche Water District (Real Party in Interest and Respondent)
Represented by Diane Van Atta Rathmann
Linneman Burgess Telles Van Atta et al.
P.O. Box 156
Dos Palos, CA

61City & County Of San Francisco (Real Party in Interest and Respondent)
Represented by Dennis Jose Herrera
City Attorney, City & County of San Francisco
1390 Market Street, 6th Floor
San Francisco, CA

62Central California Irrigation District (Real Party in Interest and Respondent)
Represented by Michael V. Sexton
Minasian Spruance Meith Soares & Sexton
P.O. Box 1679
Oroville, CA

63San Joaquin River Exchange Contractors Water Authority (Intervener and Respondent)
Represented by Michael V. Sexton
Minasian Spruance Meith Soares & Sexton
P.O. Box 1679
Oroville, CA

64Broadview Water District (Real Party in Interest and Respondent)
Represented by Gary William Sawyers
Sawyers, et al.
6715 No. Palm, Suite 116
Fresno, CA

65Modesto Irrigation District (Intervener and Respondent)
Represented by Timothy O'Laughlin
O'Laughlin & Paris, LLP
P.O. Box 9259
Chico, CA

66Turlock Irrigation District (Movant and Respondent)
Represented by Timothy O'Laughlin
O'Laughlin & Paris, LLP
2580 Sierra Sunrise Terrace, Suite 210
Chico, CA

67Merced Irrigation District (Intervener and Respondent)
Represented by Timothy O'Laughlin
O'Laughlin & Paris, LLP
P.O. Box 9259
Chico, CA

68South San Joaquin Irrigation District (Intervener and Respondent)
Represented by Timothy O'Laughlin
O'Laughlin & Paris, LLP
P.O. Box 9259
Chico, CA

69South Delta Water Agency (Plaintiff and Appellant)
Represented by Dante John Nomellini
Nomellini, Grilli & McDaniel
235 E. Weber Avenue / P.O. Box 1461
Stockton, CA

70South Delta Water Agency (Plaintiff and Appellant)
Represented by John H. Herrick
Attorney at Law
4255 Pacific Avenue, Suite 2
Stockton, CA

71R. C. Farms, Inc. (Plaintiff and Appellant)
Represented by Dante John Nomellini
Nomellini, Grilli & McDaniel
235 E. Weber Avenue / P.O. Box 1461
Stockton, CA

72R. C. Farms, Inc. (Plaintiff and Appellant)
Represented by John H. Herrick
Attorney at Law
4255 Pacific Avenue, Suite 2
Stockton, CA

73Zuckerman-Mandeville, Inc. (Plaintiff and Appellant)
Represented by Dante John Nomellini
Nomellini, Grilli & McDaniel
235 E. Weber Avenue / P.O. Box 1461
Stockton, CA

74Zuckerman-Mandeville, Inc. (Plaintiff and Appellant)
Represented by John H. Herrick
Attorney at Law
4255 Pacific Avenue, Suite 2
Stockton, CA

75Mussi, Rudy (Plaintiff and Appellant)
Represented by Dante John Nomellini
Nomellini, Grilli & McDaniel
235 E. Weber Avenue / P.O. Box 1461
Stockton, CA

76Mussi, Rudy (Plaintiff and Appellant)
Represented by John H. Herrick
Attorney at Law
4255 Pacific Avenue, Suite 2
Stockton, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Disposition
Jun 5 2008Opinion: Reversed

Dockets
Nov 16 2005Petition for review filed
  Respondents State of California, Joseph Graham (Gray) Davis as Governor of the State of California, California Resources Agency, Mary S. Nichols, as Secretary (Filed in Sacramento)
Nov 16 2005Note:
  S138975 (C044577) Rural Council of Rural Counties v. State of California was created concurrently with the instant case (S138874), but later stricken as a duplicate filing (see order of 3/07/08)..
Nov 16 20054th petition for review filed
  by real party in interest State Water Contractors (filed in Sacramento)
Nov 17 20052nd petition for review filed
  Respondent/real party in interest Westlands Water District (CRC 40.1(b))
Nov 17 20053rd petition for review filed
  Respondent/RPI Metropolitan Water District of Southern California [CRC 40.1(b)]
Nov 17 2005Joinder to petition filed
  Joinder to Petitions for Review by Respondent/RPI Santa Clara Water District [ CRC 40.1(b) ]
Nov 18 2005Note:
  Both records (C044267/C044577) were shipped yesterday
Nov 21 2005Received Court of Appeal record
  C044267 - one doghouse
Dec 1 2005Received:
  Central Delta Water Agency, Appellants resquest to file a single answer to the petitions for review.
Dec 6 2005Answer to petition for review filed
  Central Delta Water Agency, Real Party in Interest Dante John Nomellini, Jr., Counsel
Dec 6 2005Answer to petition for review filed
  Don Laub, appellant retained counsel, Brenda Southwick
Dec 7 2005Answer to petition for review filed
  Regional Council of Rural Counties, Appellees Brian E. Gray, Counsel
Dec 7 2005Received:
  Association of Counsel: Brian E. Gray Regional Council of Rural Counties, Appellees
Dec 12 2005Received:
  Letter in support of Petition for Review filed by the State of California, the State Water Contractors, the Metropolitan Water District of Southern California and the Westlands Water District
Dec 15 2005Received:
  Letter requests that the Court grant the Petition for Review Lucy Dunn, President and CEO, Orange County Business Council
Dec 16 2005Reply to answer to petition filed
  State Respondents Danae J. Aitchison, Deputy Attorney General
Dec 16 2005Reply to answer to petition filed
  State Water Contractors, Respondent Clifford W. Schulz, Counsel
Dec 16 2005Reply to answer to petition filed
  respondent, Metropolitan Water Adam C. Kear, retained counsel
Dec 16 2005Received:
  Letter requests that the Court grant the Petition for Review Jessie J. Knight, Jr., President and CEO, San Diego Regional Chambers of Commerce
Dec 16 2005Received:
  Letter from Arvin-Edison Water Storage District in support of the Petiotion for Review filed by the State of California, et al.
Dec 19 2005Reply to answer to petition filed
  Westlands Water District, Respondent and Real Party in Interest Daniel J. O'Hanlon, Counsel
Jan 3 2006Time extended to grant or deny review
  to February 14, 2006.
Jan 25 2006Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ. Chin, J., was absent and did not participate.
Jan 25 2006Letter sent to:
  Counsel re certification of interested entities or persons.
Jan 25 20062nd record request
 
Jan 27 2006Received additional record
  (3) three doghouses
Jan 27 2006Certification of interested entities or persons filed
  Westlands Water District, Real party in interest and respondent Daniel J. O'Hanlon, Counsel
Jan 30 2006Certification of interested entities or persons filed
  Westlands Water District, respondent Daniel O'Hanlon, counsel
Feb 1 2006Certification of interested entities or persons filed
  Regional Council of Rural Counties, plaintiff and appellant James Wagstaffe, counsel
Feb 2 2006Request for extension of time filed
  to file the opening brief on the merits, asking to 3/24 Davis, as Governor, et al., defendants and respondents
Feb 3 2006Certification of interested entities or persons filed
  Metro Water Dist of So. Cal., defendant and respondent Adam Kear, counsel
Feb 6 2006Extension of time granted
  On application of defendants and respondents [State of California et al.] and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 24, 2006.
Feb 7 2006Request for extension of time filed
  to file opening brief of respondent Metropolitan Water District of Southern California. asking to March 24, 2006
Feb 8 2006Certification of interested entities or persons filed
  Santa Clara Valley Water District, real party in interest and respondent Kevin Haroff, counsel
Feb 8 2006Extension of time granted
  On application of The Metropolitan Water District of Southern California, real party in interest and respondents, and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 24, 2006.
Feb 9 2006Request for extension of time filed
  to March 24, 2006, Westlands Water District to file opening brief on the merits.
Feb 9 2006Request for extension of time filed
  for respondents/real parties in interest State Water Contractors et al. to file opening brief on the merits, requesting to 3-24-06 (application filed in Sacramento)
Feb 9 2006Certification of interested entities or persons filed
  State Water Contractors Clifford W. Schulz, Counsel
Feb 9 2006Certification of interested entities or persons filed
  State of California and all State of California agencies Danae J. Aitchison, Deputy Attorney General
Feb 10 2006Certification of interested entities or persons filed
  California Farm Bureau Federation John R. Weech, Counsel
Feb 14 2006Request for extension of time filed
  to March 24, 2006 State Water Contractors to file opening brief on the merits.
Feb 16 2006Extension of time granted
  to March 24, 2006, to Westlands Water District to file opening brief on the merits.
Feb 16 2006Extension of time granted
  to March 24, 2006 for State Water Contractors to file opening brief on the merits.
Feb 17 2006Certification of interested entities or persons filed
  San Joaquin River Group Authority
Mar 2 2006Notice of substitution of counsel
  Friant Water Users Authority, intervener and resopndent S. L. Kabot, new counsel
Mar 10 2006Received additional record
  seven boxes
Mar 24 2006Opening brief on the merits filed
  The Metropolitan Water District Of Southern California, respondents Adam C. Kear, counsel
Mar 24 2006Opening brief on the merits filed
  Westland Water District, Real Party in Interest Daniel J. O'Hanlon, Counsel (CRC 40.1)
Mar 24 2006Opening brief on the merits filed
  State, Respondents Danae J. Aitchison, Deputy Attorney General
Mar 24 2006Joinder to brief on the merits filed
  by Santa Clara Valley Water District in opening brief of State Contractors and Metropolitan Water District of Southern California in support of petitions for review.
Mar 24 2006Opening brief on the merits filed
  State Water Contractors, Real Party in Interest Clifford Schulz, Counsel
Apr 10 2006Request for extension of time filed
  To file answer brief on the merits of Don Laub, et al., plaintiff and appellants (Joint application)
Apr 10 2006Filed:
  Declaration of Brian E. Gray in support of plntff/applnts' joint application to extend time to file answer brief on the merits.
Apr 13 2006Extension of time granted
  to May 24, 2006, to file the answer brief California Farm Bureau Federation, Don Laub, Debbie Jacobsen, Ted Sheely, Central Delta Water Agency, South Delta Water Agency, R.C. Farms Inc., Zuckerman-Mandeville Inc., Rudy Mussi, and Regional Council of Rural Counties
May 8 2006Received Court of Appeal record
  one doghouse
May 23 2006Answer brief on the merits filed
  Don Laub, Debbie Jacobsen, Ted Sheely & California Farm Bureau Federation, appellants
May 24 2006Answer brief on the merits filed
  Appellant, Regional Council of Rural Counties. by counsel, James M. Wagstaffe.
May 24 2006Answer brief on the merits filed
  Central Delta Water Agnecy, et al. Dante John Nomellini, Jr., Counsel
Jun 2 2006Request for extension of time filed
  Joint application by Gray Davis, Defendant and Respondent, Metropolitan Water District, Defendant and Respondent, State Water Contractors, Real Party in interest, Westlands Water District, Respondent and RPI. Requesting to 7-13-06 to file the reply briefs on the merits.
Jun 8 2006Extension of time granted
  On joint application of respondents and real parties in interest and good cause appearing, it is ordered that the time to serve and file the reply briefs on the merits is extended to July 13, 2006.
Jul 12 2006Application filed to:
  file a reply brief on the merits in excess of word limit.
Jul 12 2006Received:
  Reply brief on the merits in excess of word limit filed with permission. State respondents Danae J. Aitchison, Deputy Attorney General
Jul 13 2006Reply brief filed (case not yet fully briefed)
  Metropolitan Water District Adam C. Kean, Deputy General Counsel
Jul 13 2006Reply brief filed (case not yet fully briefed)
  State Water Contractors Clifford W. Schulz, Counsel
Jul 13 2006Reply brief filed (case not yet fully briefed)
  Westlands Water District William T. Chisum, Counsel
Jul 17 2006Reply brief filed (case fully briefed)
  Filed with permission. State respondents Danae J. Aitchison, Deputy Attorney General
Jul 28 2006Received:
  Letter: Dated July 26, 2006 Objection to extra-record evidence cited in State reply brief. Farm Bureau Brenda Wahington Davis, Counsel
Aug 3 2006Received:
  Letter, dated 8-1-06 Objection to extra-record evidence cited in State Replyn Brief Regional Counsel for Rural Counties Keith Fong, counsel
Aug 9 2006Received:
  Letter: Dated July 26, 2006 Objection to extra-record evidence cited in State reply brief. Central Delta Water Agency; R.C. Farms, Inc; Zuckerman-Mandeville, Inc.; Rudy Mussi; and South Delta Water Dante J. Nomellini, Jr., Counsel
Aug 10 2006Received application to file Amicus Curiae Brief
  The Association of California Water Agencies attorney Tammy L. Jones [app. & brief under same cover]
Aug 11 2006Received application to file Amicus Curiae Brief
  The Planning and Conservation League, Natural Resources Defense Council, and Environmental Defense. Antonio Rossmann, Counsel
Aug 11 2006Received application to file Amicus Curiae Brief
  California Chamber of Commerce, California Municipal Utilities Association, and Los Angeles Area Chamber of Commerce Roderick E. Walston, Counsel
Aug 15 2006Received application to file Amicus Curiae Brief
  California Building Industry Association, Building Industry Legal Defense Foundation, Homebuilders Associtation of Northern California, Building Industry Association of San Diego, and California Business Properties Association Lisabeth D. Rothman, Counsel
Aug 16 2006Received application to file Amicus Curiae Brief
  Sacramento Area Flood Control Agency Ellen Garber, Timothy Washburn, counsel application/brief in support of respondent Davis
Aug 21 2006Request for judicial notice filed (granted case)
  in support of California Building Industry Association et al., with 2 Volumes of exhibits
Aug 21 2006Permission to file amicus curiae brief granted
  The Association of California Water Agencies Tammy L. Jones, Counsel
Aug 21 2006Amicus curiae brief filed
  The Association of California Water Agencies Tammy L. Jones, Counsel
Aug 21 2006Permission to file amicus curiae brief granted
  The Planning and Conservation League, Natural Resources Defense Council, and Environmental Defense. Antonio Rossmann, Counsel
Aug 21 2006Amicus curiae brief filed
  The Planning and Conservation League, Natural Resources Defense Council, and Environmental Defense. Antonio Rossmann, Counsel
Aug 21 2006Permission to file amicus curiae brief granted
  California Chamber of Commerce, California Municipal Utilities Association, and Los Angeles Area Chamber of Commerce Roderick E. Walston, Counsel
Aug 21 2006Amicus curiae brief filed
  California Chamber of Commerce, California Municipal Utilities Association, and Los Angeles Area Chamber of Commerce Roderick E. Walston, Counsel
Aug 21 2006Permission to file amicus curiae brief granted
  California Building Industry Association, Building Industry Legal Defense Foundation, Homebuilders Associtation of Northern California, Building Industry Association of San Diego, and California Business Properties Association Lisabeth D. Rothman, Counsel
Aug 21 2006Amicus curiae brief filed
  California Building Industry Association, Building Industry Legal Defense Foundation, Homebuilders Associtation of Northern California, Building Industry Association of San Diego, and California Business Properties Association Lisabeth D. Rothman, Counsel
Aug 21 2006Permission to file amicus curiae brief granted
  Sacramento Area Flood Control Agency Ellen Garber, Timothy Washburn, counsel
Aug 21 2006Amicus curiae brief filed
  Sacramento Area Flood Control Agency Ellen Garber, Timothy Washburn, counsel
Aug 28 2006Request for extension of time filed
  to September 29, 2006, to file answers to amicus briefs by respondent State Water Contractors.
Sep 1 2006Request for extension of time filed
  to September 29, 2006, to file answers to amicus briefs by all parties except State Water Contractors.
Sep 5 2006Extension of time granted
  to September 29, 2006, to file answers to amicus briefs by respondent State Water Contractors.
Sep 7 2006Extension of time granted
  to September 29, 2006, to file answers to amicus briefs by all parties except State Water Contractors.
Sep 28 2006Response to amicus curiae brief filed
  Central Delta Water Agency Dante John Nomellini, Counsel
Sep 29 2006Response to amicus curiae brief filed
  State Respondents answer to amicus brief of Planning & Coservation League et al. Danae J. Aitchison, Deputy Attorney General
Sep 29 2006Response to amicus curiae brief filed
  Respondent State Water Contractors' answer to amicus briefs. Clifford W. Schulz, Counsel
Sep 29 2006Response to amicus curiae brief filed
  by Don Laub, Debbie Jacobsen, Ted Sheely, California Farm Bureau Federation & California Farm Bureau Federation, appellants Brenda Washington Davis & Alan N. Bick, counsel
Sep 29 2006Response to amicus curiae brief filed
  The Metropolitan Water District Of Southern California, respondents Adam C. Kear, Deputy General Counsel
Oct 2 2006Received:
  Notice of Errata to Respondents State Water Contractors' Answer to Amicus Briefs.
Oct 2 2006Response to amicus curiae brief filed
  Westlands Water District answer to amicus brief of Planning & Coservation League et al. (CRC 40.1b)
Oct 22 2007Notice of substitution of counsel
  Karen L. Tachiki replaces Jeffrey Kightlinger as General Counsel for Metropolitan Water District of Southern California
Dec 18 2007Received Court of Appeal record
  one full box
Mar 4 2008Case ordered on calendar
  to be argued on Wednesday, April 2, 2008, at 9:00 a.m., in Los Angeles
Mar 7 2008Change of contact information filed for:
  counsel for respondent/real party in interest Santa Clara Valley Water District (effective 5/30/2006)
Mar 7 2008Order filed
  Review was granted in the above-entitled matter on January 25, 2006. The matters in (C044267) Don Laub et al. v. Joseph Graham (Gray) Davis et al. and (C044577) Regional Council of Rural Counties et al. v. State of California et al., Department of Water Resources et al. v. San Joaquin River Group Authority et al. were consolidated in the Court of Appeal. The matters having been consolidated, all briefing filed under S138975 are hereby stricken and refiled under S138974.
Mar 13 2008Application filed
  to divide oral argument: Danae J. Aitchison, counsel for respondent State of California asking to share 10 minutes with Metropolitan Water District.
Mar 14 2008Filed letter from:
  Letter from Antonion Rossman, counsel for amici Planning & Conservation League, Natural Resources Defense Council and Environmental Defense Fund, requesting leave to cite late-decided authority. Also requesting special extension of oral argument time so as to allow these amici 5 minutes to present argument.
Mar 17 2008Filed letter from:
  James M. Wagstaffe, counsel for [plaintiff/appellant] Regional Council of Rural Counties (RCRC), requesting to divide oral argument time. Requesting 15 minutes for RCRC and 15 minutes for the California Farm Bureau. All [plaintiff/appellants] agree to this presentation of argument.
Mar 18 2008Order filed
  The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to respondents State of California et al. 20 minutes and respondent Metropolitan Water District 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Mar 18 2008Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to appellant Regional Council of Rural Counties 15 minutes and to appellant California Farm Bureau 15 minutes of appellants' 30-minute allotted time for oral argument is granted.
Mar 18 2008Order filed
  The request of counsel for amici curiae Planning and Conservation League et al., filed March 14, 2008, to extend oral argument by 5 minutes per side (10 minutes total) and to allow amici curiae to argue during the extension period is denied.
Mar 19 2008Filed:
  "Designation of Counsel" submitted by Christian C. Scheuring, counsel for appellants Don Laub, Debbie jacobsen, Ted Sheely and the California Farm Bureau Federation
Mar 21 2008Received:
  Application of petitioner Metropolitan Water District requesting permission for the Supplemental brief on new authorities to be filed
Mar 21 2008Request for judicial notice granted
  The Motion for Judicial Notice brought by Amici Curiae California Building Industry Association et at., and filed in this court on August 21, 2006, is granted.
Mar 24 2008Filed:
  Supplemental Brief by: respondent The Metropolitan Water District of Southern California filed with permission
Mar 25 2008Filed:
  Supplemental Brief on New Authorities (with application for permission) State of California et al, respondents filed with permission
Apr 2 2008Cause argued and submitted
 
Apr 14 2008Change of contact information filed for:
  attorney Timothy O'Laughlin (our records already contain this info)
Jun 4 2008Notice of forthcoming opinion posted
 
Jun 5 2008Opinion filed: Judgment reversed
  The CALFED final PEIS/R complied with CEQA. Majority opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 18 2008Received:
  Letter from counsel for Real Party in Interest and Respondent dated June 16, 2008, requesting correction of typographical error appearing on page 13 of the slip opinion.
Jul 10 2008Remittitur issued (civil case)
 

Briefs
Mar 24 2006Opening brief on the merits filed
 
Mar 24 2006Opening brief on the merits filed
 
Mar 24 2006Opening brief on the merits filed
 
Mar 24 2006Opening brief on the merits filed
 
May 23 2006Answer brief on the merits filed
 
May 24 2006Answer brief on the merits filed
 
May 24 2006Answer brief on the merits filed
 
Jul 13 2006Reply brief filed (case not yet fully briefed)
 
Jul 13 2006Reply brief filed (case not yet fully briefed)
 
Jul 13 2006Reply brief filed (case not yet fully briefed)
 
Jul 17 2006Reply brief filed (case fully briefed)
 
Aug 21 2006Amicus curiae brief filed
 
Aug 21 2006Amicus curiae brief filed
 
Aug 21 2006Amicus curiae brief filed
 
Aug 21 2006Amicus curiae brief filed
 
Aug 21 2006Amicus curiae brief filed
 
Sep 28 2006Response to amicus curiae brief filed
 
Sep 29 2006Response to amicus curiae brief filed
 
Sep 29 2006Response to amicus curiae brief filed
 
Sep 29 2006Response to amicus curiae brief filed
 
Sep 29 2006Response to amicus curiae brief filed
 
Oct 2 2006Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jul 4, 2011
Annotated by aviva horrow

Facts

California’s two largest rivers, the Sacramento and the San Joaquin, flow into the San Francisco Bay and Pacific Ocean, forming the largest estuary on the West Coast of the United States. Known as the Bay-Delta, this estuary provides two thirds of the state’s drinking water and irrigation water for seven million acres of agricultural land. A variety of factors, however, including competition for water, pollution, diversions for agricultural purposes and the drainage of wetlands, have stressed the region’s natural ecosystems and pushed plant and animal species to the brink of extinction.

In 1994, a coalition of 18 federal and state agencies formed into CALFED, a group created to devise a comprehensive plan to restore the Bay-Delta’s ecological health and improve its management. The CALFED program is intended to be administered over 30 years. It is a tiered program that increases in specificity along a timeline of three phases.

Phase I was completed in 1996. CALFED adopted a mission statement, program objectives, and solution principles, which were used to narrow down a list of program alternatives. The four primary objectives were: 1) Ecosystem Quality; 2) Water Supply; 3) Water Quality; and 4) Vulnerability of Delta Functions. CALFED determined that each of the four objectives must be met in order to achieve the project purpose. CALFED then reduced its list of alternatives down to 10, and held public meetings to discuss the merits of the alternatives. Three main alternatives emerged from this process:

1) Keeping the Delta’s channels in their existing configurations with the addition of facilities in the South Delta;

2) Modifying North Delta channels in addition to the first alternative changes; and

3) A new canal or pipeline constructed to connect the Sacramento River north of the Delta to water projects south of the Delta, in addition to the changes in the first and second alternatives.

Phase II ended in 2000. CALFED added watershed and water transfer elements to the program, identified preferred program alternatives, and the California Resources Agency certified the Programmatic Environmental Impact Statement/Report (PEIS/R) and Record of Decision (ROD). For Phase III, the preferred program alternative identified in the final PEIS/R is to be fully implemented.

Procedural History

A coalition of counties, public agencies, and owners of agricultural land filed a petition for writ of administrative mandate in 2000 alleging that the CALFED PEIS/R did not comply with CEQA. A parallel case was brought by the California Farm Bureau that was later consolidated. In both cases the court found against the plaintiffs.

Plaintiffs appealed and in In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, (2005)133 Cal.App.4th 154 the Court of Appeal remanded the actions back to the trial court with instructions to grant the petitions for writ of mandate and vacate the certification of the PEIS/R and adoption of the ROD. The Court of Appeal concluded the PEIS/R was defective for failing to discuss an alternative to the CALFED Program requiring reduced water exports from the Bay-Delta, failing to adequately discuss the environmental impacts of diverting water from potential sources to meet the Program’s goals, and in failing to include certain information about the Environmental Water Account program. The Supreme Court granted petitions to appeal.

Issues

Whether the CALFED Final Programmatic EIS/EIR failed to comply with the California Environmental Quality Act for the following reasons:

1. Because it failed to address a program alternative requiring reduced water exports from the Bay-Delta (“Reduced Exports Alternative”);

2. Because it did not identify with adequate specificity the potential sources of water required for the proposed projects, or analyze in sufficient detail the environmental impacts of taking water from those specific sources (“Program Water Source Identification”); and

3. Because it did not provide sufficient detail about the proposed “Environmental Water Account” (“Environmental Water Account”—a specific project that is part of the CALFED Program).

Holding

The CALFED Final Programmatic EIS/EIR (“PEIS/R”) for the Bay-Delta meets the requirements of the California Environmental Quality Act.

Analysis

The Supreme Court addressed the three challenges to the PEIS/R that the Court of Appeals upheld and overturned each of them:

Reduced Exports Alternative

The Court of Appeal ruled that CALFED should have considered an alternative to the program with reduced water exports from the Bay-Delta region. Rather than assuming population growth and then finding methods to provide water for the population, CALFED could have considered smaller-scale water exports that would decrease population growth. The Court of Appeal found such an alternative would be feasible and that CALFED could not reject a reduced exports alternative simply because it did not meet every single objective of the program.

The Supreme Court overruled the Court of Appeal, finding that the scope of alternatives for a program is dictated by the rule of reason. It held that an EIR does not have to consider alternatives that are remote or speculative. Alternatives are based on the underlying objectives of a program and the court here found that the four main objectives were based on the fundamental purpose of reducing water-related conflicts over the Bay-Delta. CALFED had already concluded that a reduced exports alternative would not meet the primary objectives of the program. As a result, the Court held that CALFED did not need to consider that alternative. Because the PEIS/R provided a reasonable range of alternatives, and the Program is premised on the theory that it is possible to restore ecological health to the Bay-Delta while increasing exports, CALFED properly applied the rule of reason when setting forth its alternatives to the program. Failure to include a reduced exports alternative therefore was not an abuse of discretion.

Program Water Source Identification

The PEIS/R only provided potential sources of water used to implement the Program rather than officially designating sources. The Court of Appeal found that CALFED should have identified the specific sources as well as analyzing the impacts of supplying water from the chosen sources.

The Supreme Court disagreed with the Court of Appeal, distinguishing that the PEIS/R is programmatic, and at that stage focused on the first tier of the Program. Tiering is proper when it helps public agencies discuss issues that become ripe for review. Here, the Program is intended to last for 30 years, and therefore must remain flexible in its initial phases. The Court found that the amount of specificity in the PEIS/R was sufficient for the first level of tiering, and that the identification of specific water sources was properly deferred for the second tier of the CALFED Program, when specific projects will be described in greater detail.

Environmental Water Account

The Environmental Water Account (“EWA”) is a second-tier project that would implement flexible management of water operations to balance the competing demands of fishery, restoration and recovery needs in the Bay-Delta. The Court of Appeal held that CALFED left out too many details of the EWA and how it would operate, asserting that the use of a programmatic EIR is not an excuse to defer analysis of significant impacts of the Program.

The Supreme Court again overruled the Court of Appeal, finding that CALFED adequately identified the significant environmental effects of EWA, and that EWA details disclosed in the Action Framework properly belonged in the second-tier phase of the programmatic PEIS/R. The Court cited Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners of the City of Long Beach, (1993) 18 Cal.App.4th 729 as instructive for this case on the issue of tiering and specificity.

Tags
Bay-Delta
PEIS/R
CALFED
Programmatic EIR
Tiering
program alternatives
program impacts
San Joaquin River
Sacramento River
Record of Decision
ROD
California Environmental Quality Act
CEQA

Related/cited cases

In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, (2005)133 Cal.App.4th 154

Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners of the City of Long Beach, (1993) 18 Cal.App.4th 729

Annotation by Aviva H. Reinfeld

Mar 12, 2009
Annotated by diana teasland

Written by David Lydon

SUMMARY OF THE OPINION

(1) FACTUAL AND PROCEDURAL HISTORY

This case, which represents the combination of several related lawsuits, arose out of water issues stemming from the diversion of water from the “Bay-Delta” region of the Sacramento River and the San Joaquin River to supply residential and agricultural uses throughout the state. The fundamental reality of California water use is that “approximately 75 percent of the state’s natural water runoff occurs north of Sacramento, while about 75 percent of the net water demand, for both agricultural and urban uses, occurs south of Sacramento.” Because of that, large-scale water schemes, and litigation relating to those schemes, have been occurring for nearly a century.

In 1994, a new program, “CALFED” was established as a joint committee of eight state agencies and ten federal agencies. Tasked with creating “a long-term solution to the Bay-Delta’s problems,” CALFED adopted a long-term plan intended to simultaneously satisfy California’s water needs while protecting endangered environments and species in the Bay-Delta region. In 2000, the project moved into “Phase 3,” adopting a controversial plan to regulate the water supply. Several individuals and groups sued, alleging that CALFED’s plan violated the California Environmental Quality Act.

In April, 2001, these actions were joined in Sacramento County Superior Court, which denied the petitions, and found that CALFED had complied with CEQA. The Court of Appeals, in a 224-page opinion, reversed, and held that CALFED’s plan was defective in failing to properly consider alternatives, especially an alternative proposal to reduce water usage in certain areas by discouraging new development in certain especially unsustainable communities, and encouraging migration away from those communities.

(2) HOLDING AND REASONING

In a unanimous opinion, the California Supreme Court reversed the Court of Appeals, holding that CALFED had properly complied with CEQA. In the Court’s view, CALFED’s “Phase 1” conclusion that “reduction demand” proposals would face substantial political resistance, and harm the long-term goals of CALFED was sufficiently supported that the committee did not need to revisit the issue of demand reduction proposals during subsequent phases of the project.. Thus, CALFED’s determination that demand reduction “would seriously compromise the water supply objective” was reasonable. In the court’s view, CEQA allowed for such “tiering” of environmental goals, with a first “tier” identifying politically viable options, and subsequent project-level analysis working within that initial framework.

Tags: Environmental Law; California Environmental Quality Act; Administrative Law.