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CALFED: State Supreme Court Upholds Water Plan's EIR

By: Alfred E. Smith

In an important decision under the California Environmental Quality Act ("CEQA"), on June 5, 2008, the California Supreme Court approved the final environmental impact report ("EIR") for the CALFED Bay-Delta program ("CALFED"). The long-term, comprehensive plan developed by a consortium of federal and state agencies is intended to restore the Bay-Delta region’s ecological health and the various beneficial uses that depend on it.

In 2005, the Court of Appeal concluded that the CALFED EIR was defective, in part because it did not examine in detail a program alternative requiring reduced water exports from the Bay-Delta.

The California Supreme Court reversed the lower court’s decision, noting that an EIR need not assess in detail an alternative that is infeasible or incompatible with the project’s underlying fundamental purpose. CALFED determined that a reduced export alternative would compromise the water supply objective; it was not feasible and would not meet the basic underlying goal of reducing conflicts and providing a solution that competing interests could support.

The Court agreed, concluding that "[b]ecause 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."

The Court further stated that the EIR identified with adequate specificity the potential sources of water required for the proposed projects and analyzed in sufficient detail the environmental impacts of taking water from those sources. The Court also found that the EIR provided sufficient detail about the proposed Environmental Water Account ("EWA"). The EWA is a project proposed by CALFED that would provide water to support fish habitats by authorizing the state and federal governments to acquire, bank, transfer and borrow water beyond quantities available through existing regulatory actions, without reducing deliveries to water users.

The Court’s ruling, however, may be of limited impact. Governor Arnold Schwarzenegger appointed a task force to identify a strategy for managing the Bay-Delta that released its Delta Vision report in January 2008, and a consortium of water users, state and federal regulators, and other interested parties is looking separately at development of a conservation plan for the Bay-Delta. Federal judge Oliver Wanger ordered a reduction in water exports from the Bay-Delta to protect the Delta smelt, and is considering whether to order further reductions to protect salmon and steelhead. Moreover, the state Senate last month passed legislation to dissolve the state agency that manages CALFED.

To view the Court’s decision, click here.

Alfred E. Smith, II specializes in environmental, water and complex commercial litigation. He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil. He can be reached at (213) 612-7800 or

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