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California Supreme Court Grants Review of CALFED Decision

By: Alfred E. Smith, Paul S. Weiland
01/27/06

On January 25, 2006, the California Supreme Court granted review of the October 2005 decision of the Third Appellate District, In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, 133 Cal. App. 4th 154 (Cal.App.3d Dist. 2005) (alternatively referred to as Laub v. Davis).  The ultimate disposition of this litigation by the Supreme Court likely will have important implications for water diversion projects statewide, and, more broadly, for all projects subject to the requirements of the California Environmental Quality Act (CEQA).

 

CALFED is both an agreement and program entered into by over 20 federal and state agencies to coordinate their water management activities within the State of California focused around the San Joaquin Delta.  CALFED was created in response to seemingly endless litigation among parties seeking to control water in the State including farmers, city dwellers, and environmentalists.

 

After years of study and analysis that included participation from major stakeholder groups, CALFED adopted a program to be administered over 30 years, which includes measures to improve the Bay-Delta ecosystem, water quality and quantity, and Delta levee stability.  In 2000, the Secretary of the California Resources Agency certified the Final Programmatic Environmental Impact Report and CALFED adopted the Record of Decision (ROD) for the Program in accordance with CEQA and the National Environmental Policy Act (NEPA) respectively.  Several groups, including the California Farm Bureau Federation, the Central Delta Water Agency, and the Regional Council of Rural Counties challenged the adequacy of the Environmental Impact Statement/Environmental Impact Report (EIS/EIR).

 

In April 2003, the trial court issued a ruling rejecting all of the project opponents' arguments and concluding the EIS/EIR satisfies the requirements of CEQA.  The appellate court affirmed the lower court decision by upholding the EIS/EIR in many respects.  But it held that, with respect to three matters, the EIS/EIR is defective:  (1) the EIS/EIR fails to discuss an alternative to the CALFED Program that requires reduced exports of water from the San Joaquin Delta; (2) the EIS/EIR fails to include adequate discussion of the environmental impacts of diverting water from various potential sources to meet the Program goals; and (3) the EIS/EIR should have, but did not, include certain significant information relating to the Environmental Water Account (EWA).

 

The first of these grounds for holding the EIS/EIR insufficient is arguably the most important.  The court notes that "all of the alternatives proposed in the [EIS/EIR] call for increased exports of water to areas south of the Delta, or at least no reduction in the amount of water exported."  133 Cal. App. 4th at 254.  The court goes on to state "a reasonable alternative to this approach would be to reduce the amount of water exported south of the Delta, thereby reducing the amount of water that must be redirected from other users or impounded in new or existing reservoirs."  Id.  By failing to include a reduced export alternative, the court held that the State failed to consider the requisite reasonable range of alternatives and deprived decision-makers of the ability to consider all choices when deciding how to allocate the State's most precious resource.  Id. at 255.

 

The second and third grounds for invalidating the EIS/EIR result from insufficient information provision at this stage in the CEQA process.  In part, these grounds are tied into the specificity of information required when completing a programmatic as opposed to a project-specific CEQA document.  With respect to the second ground, the court held that "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 [EIS/EIR's] basic informational purpose."  133 Cal. App. 4th at 232.  The court went on to state that "the [EIS/EIR] must include an analysis of the impacts of supplying such water, from whatever source."  Id. at 233.  With respect to the third ground, the court held that "[t]he State's argument that [information regarding the EWA] is more appropriately included in a project level EIR is unavailing.  Use of a programmatic EIR is not an excuse to defer analysis of the significant impacts of the program."  Id. at 281.

 

The outcome of this litigation is important because it will address how far CEQA analysis must go in terms of addressing the potential environmental impacts of diverting water for a project, the range of projective alternatives that agencies must evaluate, and the use of "tiering" in the EIR process.  In addition, the Supreme Court's decision will impact CALFED's ability to move forward with its plans for improvements in the Bay-Delta region.

 

Alfred E. Smith, II is a Partner in Nossaman's Los Angeles office who 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.  Alfred is an appointed member of the Association of California Water Agencies' (ACWA) Legal Affairs Committee.  He can be reached at (213) 612-7800 or asmith@nossaman.com. 

 

Paul Weiland litigates environmental matters in trial and appellate courts under a variety of statutes, including CERCLA.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  In that capacity, he represented the United States as amicus curiae in Cooper v. Aviall.  He can be reached at (949) 833-7800 or pweiland@nossaman.com.

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