A state appellate court has thrown out the environmental study for the Cal-Fed Bay-Delta Program. The Third District Court of Appeal found that the study failed to identify what water would be used to carry out the program, did not consider reduced exports of Delta water, and failed to provide known details of an "environmental water account."
What appeared to doom the environmental study was the document's lack of specificity about the source of water for Cal-Fed's environmental programs and improved reliability for urban areas. The study — a "programmatic" environmental impact report for state purposes and an environmental impact statement for federal purposes that the court referred to as the PEIS/R — did not have to provide precise water sources, the court ruled. "However," the court ruled, "because the program is premised on such water being available, the PEIS/R must include an analysis of the impacts of supplying such water, from whatever source.
"Without such analysis, a proper evaluation of the program and its alternatives and mitigation measures is not possible," Justice Harry Hull Jr. wrote for the court. "Cal-Fed has approved a program requiring large amounts of water to fulfill its objectives without analyzing the environmental impacts of supplying such water. This will not do."
Cal-Fed directors will ask the state Supreme Court to review the case. In the meantime, though, the Third District's decision has added to the growing number of questions about Cal-Fed. The joint state-federal effort both to address the ecological health of the Delta and to provide a more assured urban water supply has spent $3 billion over the last decade, but has few large successes to show for the expense. Many people inside and outside of government are questioning the entire program's structure (see CP&DR Environment Watch, October 2005).
In 1994, 18 federal and state agencies with management or regulatory authority over the Delta signed a Bay-Delta accord. After six years of study, negotiation and planning, the state resources secretary in August 2000 certified a programmatic EIS/EIR and adopted the record of decision formally approving the 30-year Cal-Fed program.
Naturally, litigation ensued in both state and federal courts. The chief opponents are agricultural interests, Delta irrigation districts and the Regional Council of Rural Counties, which comprises 28 Northern and Central California counties that receive most of the state's rainfall. Superior courts in Sacramento and Fresno counties upheld the environmental study and other challenged aspects of Cal-Fed. The Third District consolidated the state litigation and then overturned the lower courts on California Environmental Quality Act (CEQA) grounds.
Justice Hull's 244-page decision is remarkably detailed. The ruling starts with a lengthy explanation of the state's plumbing system and Southern California's efforts to secure water from the Colorado River, Owens Valley and Mono Lake. The court addresses the legal and environmental issues surrounding the existing system.
Hull then moves to the heart of the matter — whether the environmental study satisfied CEQA. One issue that surfaces repeatedly in the court's CEQA discussion is the level of detail required in a programmatic EIR, an issue that public agencies, lawyers and judges have struggled with for decades.
The court clearly thought the environmental study should have been more specific about where the program would get its water. Under Cal-Fed's preferred alternative, environmental restoration efforts would need an additional 980,000 acre-feet of water in the first year alone. Additionally, exports from the Delta to Central and Southern California would increase by anywhere from 250,000 acre-feet to 900,000 acre-feet annually depending upon the amount of new storage developed and rainfall. Agricultural interests fear that most of the water will be diverted from farms.
In defending the environmental study, the state argued that a first-tier EIR for a program needed only to recognize that water must be supplied and to identify potential sources. The state said the EIR described the potential sources in detail.
But the court found such detail lacking. The EIR says the water will come from "willing sellers along the pertinent rivers and new storage," but goes no further, according to the Third District.
"The PEIS/R does not provide any basis for the estimates of water that will be made available from willing sellers along the various rivers," Hull wrote. "On the contrary, a response to comments states that ‘the amount and source of water that will be transferred by willing sellers is not currently quantifiable.' Nor does the PEIS/R identify what new storage is contemplated."
"In light of the overarching importance of water to the success of the Cal-Fed 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," wrote Hull, who noted that new water storage projects are very difficult to develop. "The PEIS/R attempts to forestall the inevitable battle over water allocation and storage, and the effects of such on the environment, by leaving the source of program water undefined."
After dealing with water sources, the court then moved onto what might be the most controversial part of the ruling — an analysis of project alternatives. Under CEQA, an environmental study must discuss a range of alternatives for the proposed project or the project's location. The opinion provides a lengthy review of how Cal-Fed developed dozens of alternatives that ultimately where whittled down to four contained in the EIR.
None of the four contemplated reduced export of Delta water because, the state argued in court, reduced exports would not meet all of Cal-Fed's goals, specifically a more reliable water source for Southern California.
"But," the court ruled, "Cal-Fed'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."
Cal-Fed and the EIR assume that the program must provide for ongoing population growth, especially in dry Southern California. But the court refused to accept this approach as a given.
"[I]f there is no water to support the growth, will it occur as projected?" Hull posited. "Population growth is not an immutable fact of life. Stable populations have been established in such states as New York, Pennsylvania, Connecticut and Rhode Island. Inflow of new residents to California continues to exceed outflow because conditions in the state are conducive to population growth. One aspect of these conditions is the availability of water. However, as the state reaches the limit of available water and must seek other sources such as desalination, water will become more expensive to obtain and California's appeal will lessen."
"Cal-Fed 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," the court continued. "Taking an assumed population as a given and then finding ways to provide water to the population overlooked an alternative that would provide less water for population growth leaving more for other beneficial uses."
In the later reaches of its opinion, the court rejected the EIR's description of the environmental water account (EWA), which is intended to provide more water for fish. The court determined that Cal-Fed participants — one month before EIR certification — approved a framework that detailed how the EWA would work. The EIR did not contain this information but should have, the court ruled.
The Case: In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, No. B175020, 05 C.D.O.S. 8858, 2005 DJDAR 12079. Filed October 7, 2005.
The Lawyers: For California Farm Bureau Federation: Brenda Southwick, (916) 561-5660.
For Central Delta Water Agency: Dante John Nomellini Sr., Nomellini, Grilli & McDaniel, (209) 465-5883.
For Regional Council of Rural Counties: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500.
For California Resources Agency: Tom Greene, attorney general's office, (916) 445-9555.