Department of Water Resources SWP Draft EIR: Our Comments
Comment Letter – Draft Environmental Impact Report for State Water Project Long-Term Operations
July 11, 2024
Department of Water Resources
Attn: Chris Wilkinson, Environmental Program Manager, Division of Integrated Science and Engineering
Via email: SWPDeltaOps@water.ca.gov, christopher.wilkinson@water.ca.gov
Re: Comment Letter – Draft Environmental Impact Report for State Water Project Long-Term Operations: California Water Impact Network
To the Department of Water Resources:
Summary
This letter provides comments of the California Water Impact Network (CWIN) on the May 2024 Draft Environmental Impact Report, entitled Long-Term Operations of the State Water Project.This DEIR purports to fulfill the California Environmental Quality Act (CEQA) requirements and to comply with other applicable laws (ES-2,3).
Although the DEIR claims environmental protection as a fundamental goal (ES-2,3), a close reading reveals the opposite intent. DWR uses every CEQA trick in the book to minimize and evade responsibility for the catastrophic environmental impacts of the State Water Project (SWP). They include providing no context for the baseline conditions, piecemealing the project relative to inter-related efforts, eliminating reasonable project alternatives, omitting reasonably foreseeable regulatory actions, narrowing the geographic scope of analysis, eliminating most of the resource analysis categories, and conducting insufficient analysis of the remaining impact categories, including tribal and environmental justice impacts. As a result, the DEIR not only fails multiple CEQA requirements. It is also an affront to tribes and environmental justice communities and useless as a basis for the public trust, water rights, and statutory compliance analysis required for regulatory requirements and review by responsible and trustee agencies.
Moreover, DWR is playing a shell game by evading questions about operations in other analyses and minimizing operational impacts in this EIR, which purports to address the SWP’s long-term operations. The SWP comprises geographically dispersed infrastructure, long-term contracts, multiple water rights, coordinated operations, and a complex regulatory environment. As DWR is aware, the Delta estuary which supplies the SWP, is heavily oversubscribed, a problem worsening with climate change. Yet DWR has manipulated its project definition and artificially segmented the SWP to evade accountability at every turn. When assessing its planned Delta Conveyance Project (DCP), DWR claims that operations are outside the scope. When defending its contract decisions, DWR portrays them as financial arrangements disconnected from the impacts of project operation under CEQA. Meanwhile, when seeking approval for outdated water rights and continued environmental degradation from excessive water diversions, DWR utilizes this EIR, claiming no responsibility for existing conditions (“baseline”), no immediate relationship to the DCP (“future conditions”), no responsibility for the public trust (“covered by CEQA”), no responsibility for environmental justice (“not required by CEQA”), and no need to analyze impacts from the entire system (“no new infrastructure” and “independent utility”). DWR’s actions undermine CEQA, other relevant statutes, and case law, including state and federal endangered species protection acts, Fish and Game Code requirements, state constitutional provisions, and the public trust doctrine. If DWR does not revise its EIR to include a full accounting of environmental impacts, it will be in violation of legal frameworks designed to prevent the very environmental catastrophes DWR continues to perpetuate.
To fulfill basic CEQA requirements, as described below, the DEIR must be completely revised and will require recirculation for further public comment. It must consider the full scope of environmental, tribal, and community impacts associated with SWP operations, and it must take a reasonable approach to alternatives analysis, anticipated regulatory requirements, and public trust considerations. Californians deserve better.
CEQA Policy and Legislative Intent
CEQA, its legislative intent language, and a large body of case law have established clear parameters for what constitutes an adequate environmental impact review. Lead agencies must seek to avoid harm, mitigate impacts when feasible, and “consider a reasonable range of potentially feasible alternatives that will foster informed decision making and public participation.”[1] The “foremost principle” of CEQA is that “the Legislature intended the act ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”[2] Decision-makers and the public cannot be deprived of “material necessary to informed decision-making and informed public participation.”[3]
Rather than allowing agency environmental review to stack the deck in one direction, CEQA requires an “interactive process of assessment of environmental impacts and responsive modification” designed to protect the environment.[4] An “artificially narrow” approach to project purposes and objectives lies outside the agency’s discretion, because utilizing it would transform the assessment CEQA requires into an “empty formality.”[5]. The project description must be “accurate, stable, and finite.” [6] Assessment of the project’s direct, indirect, and cumulative impacts must “set forth sufficient information to foster informed public participation and reasoned decision making."[7] “Nonspecific and general” responses to comment may be deemed inadequate.[8]
Specific Comments
1. The DEIR fails to clearly and consistently analyze its relationship to DWR’s 2020 FEIR for State Water Project Long-Term Operations.
In its description of the project’s purpose the DEIR describes the goal of obtaining a new Incidental Take Permit (ITP) from the state’s Department of Fish and Wildlife (DFW) (ES-3,4). However, it does not explain and provides no meaningful analysis of how this EIR differs from the EIR DWR already produced in 2020 for long-term operations of the SWP (2020 EIR).[9] Furthermore, aside from the addition of white sturgeon, it is not clear how the new ITP would differ from the current ITP. This omission undermines one of the core tenets of CEQA, which is to allow for public consideration and input on the environmental impacts of a project. In this case, the project, a massive water storage and conveyance system, has been operating for decades under contracts that despite extensions, are neither indefinite nor infinite. Understanding the impacts of operational changes requires transparent and accurate analysis of impacts associated with current and continuing operations. Also, by definition, a long-term plan is meant to be durable (even if flexible) and must provide context necessary to evaluate its full impact over time. By failing to present a clear and complete description of why DWR is seeking an updated ITP, and how the new ITP would differ from the current ITP, DWR is doing a disservice to the legislature’s articulated intent.[10]
Because of the overlap and similarity between the current EIR and the 2020 EIR DWR prepared for the prior iteration of this Project, CWIN hereby incorporates by reference the comments submitted by CWIN and other organizations on January 6, 2020, and January 27, 2020, attached here as Exhibits 1 and 2. These comments must be specifically addressed in the context of the current EIR.
2. The DEIR mistakenly presumes approval of the Voluntary Agreements.
Table ES-1, which summarizes the proposed project elements, notes that Spring Delta Outflow action will be achieved through “Implement[ing] Voluntary Agreements …” (ES-6). However, Voluntary Agreements have not been approved by the State Water Resources Control Board (State Board) and have been sharply criticized in public comments still undergoing review, including those of CWIN attached as Exhibit 3. Furthermore, the Board’s existing CEQA analysis of the Voluntary Agreements finds significant uncertainties and limited environmental mitigation potential relative to more protective regulatory options. DWR could have incorporated or referred to the Board’s analysis in this DEIR but chose not to do so. This omission is contrary to the fundamental information disclosure requirements of CEQA, which requires lead agencies to evaluate reasonably foreseeable impacts. DWR’s decision to not analyze the reasonably foreseeable impacts associated with a Board decision to impose unimpaired flow requirements via regulation is also a clear CEQA violation. The need for that missing analysis is further reinforced in omitted comments of the U.S. Environmental Protection Agency (EPA) on the State Board’s Supplemental Environmental Document (SED) for Phase II of the Bay-Delta Plan, attached as Exhibit 4. Confirming again that “the best available science suggests that current flows are insufficient to protect public trust resources,” EPA indicated that restoration of flow volumes is essential to protect the public against harmful algal blooms, and that “swift action is needed to address the imperiled state of the Delta and the species, communities, and economies that depend on this ecosystem for survival.” Id., pp. 1-2. EPA also agreed with Board staff that “the best available science suggests that current flows are insufficient to protect public trust resources.” Id., p. 6.
DWR’s selective analysis is further demonstrated by its decision to include impacts to white sturgeon based on its assessment that white sturgeon may obtain protection under the California Endangered Species Act (CESA) in 2024 (ES-4). When the DEIR was published, the Department of Fish and Wildlife had not announced a decision on whether to provide protection to the white sturgeon under CESA.
3. The DEIR does not contain adequate public trust analysis.
DWR’s Master Response 14 in its 2020 EIR on public trust offers a selective and misguided interpretation of case law. In its Response, DWR states: “[W]hat constitutes feasible protection for public trust resources is a determination made by the responsible state agency after balancing public trust and competing interests and considering its statutory authority and responsibilities.”[11] DWR also cites a state appellate case as a basis for concluding that CEQA analysis can fulfill public trust considerations.[12]
However, a CEQA analysis does not necessarily satisfy an agency’s duties under the public trust doctrine to (a) assess a project’s impacts on trust resources and (b) mitigate or avoid those impacts when feasible. An analysis performed under CEQA may satisfy its public trust duties, but only if the agency actually fulfills its duties in that CEQA analysis. And an agency’s conclusion that it has satisfied its trust duties in its CEQA analysis is not dispositive and is not granted any deference (unlike some of an agency’s actions under CEQA). An agency’s satisfaction of its trust duties is a factual question, subject to the ordinary standards of proof, not administrative mandamus. Indeed, by vesting lead agencies with discretion to define a project’s purpose, a CEQA analysis can and often does diverge from what is required in a public trust analysis. Not only do public trust analyses have the “project goal” of mitigation or avoidance of impacts to trust resources when feasible, along with the potential balancing of competing trust and/or societal goals, but an agency’s public trust duties are ongoing and not limited to the moment of an agency’s project approval.
If DWR certifies this EIR based on these erroneous claims, the state’s trustee agencies (the State Water Board and the Department of Fish and Wildlife) should ignore this EIR entirely when conducting their public trust review and regulatory functions. By stating that DFW and the State Water Board may use this EIR in their decision-making processes (ES-4, 1-1), DWR misstates the law while attempting to have its cake and eat it, too. But if an EIR fails to provide information relevant to a public trust analysis, like this EIR, it cannot serve as a basis for regulatory decisions by trustee agencies that must uphold the public trust regardless of a subordinate agency’s conclusions.
4. The DEIR omits necessary context in its description of baseline conditions.
Another problematic response relates to the issue of the baseline under CEQA. While CEQA allows for lead agencies to treat existing conditions as the baseline for impact analysis, that does not absolve them of the need to account for all reasonably foreseeable decisions that could substantially alter the project in the near-term. DWR chose to include the potential listing of the white sturgeon under CSEA but elected not to include the potential for regulatory flow requirements from the State Water Board as part of the Board’s update to the Bay-Delta Plan. However, the Board’s potential actions in that proceeding are both reasonably foreseeable (the SED was issued in September 2023) and directly relevant to the long-term operations of the SWP. Indeed, the DEIR acknowledges the direct relevance of State Water Board actions on water rights permits (1-1) and potential approval of voluntary agreements (ES-6), demonstrating that DWR understands the Board’s upcoming actions matter greatly to how it operates the SWP.
In addition, continued harmful operations amplify the damage from the environmentally destructive baseline. As DWR acknowledges in the DEIR, current conditions in the Bay-Delta estuary are highly degraded. (ES-13). Indeed, the extent of the degradation is well documented in the State Water Board’s Scientific Basis Report utilized in the Board’s SED. Nevertheless, DWR relies upon CEQA’s “baseline” conditions guidance (and case law) to avoid analyzing how its project would exacerbate the damage. This is both contrary to CEQA’s intent and more broadly problematic.
First, as the SED documents, fish species suffer most during extended and severe dry (and increasingly hot) years. The way that the SWP (and the CVP) operate leaves inadequate end-of-water-year (September) storage to effectively mitigate massive fish mortality in a subsequent dry water year (and even less so in multiple dry years). As a result, gubernatorially declared drought emergencies become opportunities for DWR to get waivers from the existing (and inadequate) environmental flow requirements through Temporary Urgency Change Petitions (TUCPs). Fish are then deprived of cold water flows resulting in massive die offs. This background is critical to evaluating the impacts of future operational decisions. However, within DWR’s CEQA analysis, it is simply part of the “baseline” and therefore not relevant.
Second, a project of the SWP’s size and scope requires a “baseline” that provides context on underlying trends affecting its operations. In this instance, the long-term reduction in demand from SWP contractors, coupled with a statutory mandate to reduce reliance on the Delta, are relevant not only to the “baseline” but also to a meaningful alternatives analysis. Just because DWR wants to maximize SWP deliveries (“DWR is seeking to optimize water supply …,” ES-3) does not mean that DWR can ignore the ongoing changes in demand for SWP deliveries. Moreover, the “baseline” should specifically address DWR’s compliance with the 2009 Delta Reform Act, which is directly relevant to potential mitigation measures and regulatory actions by the Department of Fish and Wildlife and the State Water Board. A more fully articulated “baseline” would demonstrate the need for a project alternative that substantively reduces SWP deliveries. That alternative would have significant environmental benefits relative to the alternatives analyzed in the DEIR. However, while DWR identified reduced deliveries as an Area of Controversy (ES-14), it elected omission instead of honest assessment, which is the epitome of an “prejudicial abuse of discretion.”
Third, as noted above, it is reasonably foreseeable that the current regulatory requirements will change. While the DEIR anticipates approval of voluntary agreements, regulatory flows could be mandated instead. The DEIR contains no analysis of how operational compliance with the State Water Board staff proposal in the SED (55% unimpaired flow) would affect environmental quality. Analysis of “reasonably foreseeable” impacts is a CEQA requirement that DWR has failed to fulfill in the DEIR.
Furthermore, DWR’s obfuscation is the most cynical approach to important environmental policy decisions. It advances a “death by 1,000 cuts” rubric whereby each individual modification is found to be less-than-significant, while cumulatively the continued operation of the SWP contributes to destruction, calamity, and extinction. It is also self-fulfilling. Once environmental “baseline” conditions are sufficiently degraded, there are no impacts left to mitigate. While this CEQA “loophole” may be nominally defensible, it does not extend to other legal requirements that allow governmental decision makers to look backwards. Both the California Endangered Species Act (CESA) and the public trust doctrine explicitly contemplate decisions based on evolving standards and conditions.[13] Thus, while DWR may choose to hide behind CEQA, it’s intransigence cannot serve as the basis for regulatory decisions.
5. DWR’s selected geographic scope also runs contrary to CEQA.
The DEIR claims that the geographic scope for analysis consists of the legal Delta where the SWP’s main conveyance infrastructure is located (2-2,3). DWR states that since the proposed project does not involve new infrastructure, is limited to operations within the Delta, and is intended to acquire a regulatory approval for fish in the Delta, its geographic scope is appropriate (1-1, 2-1 through 2-9).
However, the SWP operates across a much larger geography (2-1, 2-9 through 2-14). The long-term operations of the SWP could impact the 27 million people it serves in multiple ways. They include economic impacts, public health impacts, and climate change adaptation impacts. The cost and availability of SWP water affects usage patterns, investments in conservation and alternate water supply sources, agricultural production in Kern County, and housing and business development. If the DCP is built, it will change the economics and usage patterns. If the State Water Board adopts regulations for unimpaired flow standards, it will change the economics and usage patterns. By narrowing the geographic scope, the DEIR sidesteps these important evaluations that are required under CEQA.
Additionally, the long-term operations of the SWP will have long-term impacts on environmental resources far beyond the legal Delta. The estuary of the rivers that feed the Delta is vast. Flows down those rivers are managed to meet multiple priorities, including diversions from the Delta. Fish that successfully navigate through the Delta may face higher or lower mortality depending on upstream flows and temperature. The interconnected nature of the estuary is why the State Water Board’s SED assesses impacts in a comprehensive manner. This DEIR must do the same. CEQA is clear that the full range of a project’s environmental impacts must be analyzed. Here, that range extends through the entire estuary.
6. The DEIR fails to provide a stable, consistent, and accurate definition of the project under review.
CEQA requires that an EIR include an accurate project description and fully disclose and fairly evaluate the nature and objective of a project.[14] An EIR must contain a “sufficient degree of analysis to provide decision-makers with information which enables them to make a decision which intelligently takes account of environmental consequences.”[15] A “curtailed, enigmatic or unstable definition of the project” is an error of law which “draws a red herring across the path of public input.[16]
DWR asserts that the Proposed Project “would continue DWR’s ongoing, long-term SWP operations consistent with applicable laws, contractual obligations, and agreements. DWR proposes long-term operations of the SWP that will allow DWR to continue to store, divert, and convey water, in accordance with its existing water rights, to deliver water pursuant to water contracts and agreements up to full contract quantities.” (DEIR, ES-3, emphasis added). Yet at the same time that it portrays itself as merely continuing the status quo, DWR disingenuously assumes the current EIR can also support future discretionary actions by the State Board to grant water rights approvals it has never secured. DWR thus assumes that the State Board can utilize this EIR as a “responsible agency” to inform some future “discretionary approval process and consideration to issue a water rights time extension for DWR’s Feather River/ Delta water right permits 16478, 16479, 16481, 16482, 16477, and 16480 to allow long-term operations consistent with the diversion rates and quantities evaluated in this EIR.” Id.
DWR’s unstable, shifting, and inconsistent assumptions about the Project under review fail the reality test on at least two levels. First, as described and documented in a pending complaint and petition brought by CWIN and others in Fresno Superior Court (Exhibit 5) and CWIN’s pending protest against DWR’s change petition for the DCP (Exhibit 6), DWR has long since failed to meet the conditions of the water rights permits on which it relies. DWR’s SWP permits required completion of construction of specific diversion projects by December 1, 1980, and the application of water allotted under the permits to full beneficial use by December 1, 1990. Under extensions DWR petitioned for and received, these Permits required DWR to complete construction, such as that now sought for a conveyance, by December 31, 2000 [Term 6], and put the water allocated to DWR under the permits (10,350 cubic feet per second) to full beneficial use no later than December 31, 2009 [Term 7].
Due to DWR’s long-acknowledged failure to meet the last approved deadlines and the Board’s inaction following protests to DWR’s last-filed petition to extend, DWR’s water rights permits have a formidable “cold storage” problem that is also the subject of pending litigation. Enabling DWR to keep its permitted water rights in such “cold storage” is not only unlawful, but harmful to the public trust and the public interest.[17] In its last Petition to Permit Time Extension, filed with the Board on December 31, 2009, DWR recognized it had not and could not meet the already-extended deadline for full beneficial uses in its water rights permits. DWR sought, but never received, another extension through 2015. In 2010, CWIN, among others, filed still-unresolved protests opposing any further time extension for DWR. Protestants raised these objections, among others:
DWR failed required due diligence. (Wat. Code, §§ 1395, 1396, 1397; 23 CCR §§ 840, 844.)
A further extension could adversely affect other water rights and violate Delta protection laws (Wat. Code, § 12200-12205.)
DWR failed to explain how much water can be put to a beneficial use.
DWR failed to state the maximum amounts of water it had annually directly diverted and diverted to storage under each water right.
DWR’s own actions led to its failure to timely put water to beneficial use. (Cal.
Code Regs., tit. 23, §§ 840, 844.)DWR’s requested extension would harm the public trust and not be in the public interest. (Wat. Code, §§ 1243; 1243.5.)
DWR did not comply with the California Environmental Quality Act.
DWR’s requested extension of time would violate permit conditions and numerous other legal requirements, such as the federal Clean Water Act, Porter-Cologne Water Quality Control Act, Fish and Game Code section 5937, multiple provisions of the Water Code, and article X, section 2 of the California Constitution.
The DEIR’s second failure of the reality test is its perpetuation of the long-debunked fiction that the SWP is capable of delivering up to the “full contract quantities” referenced in Table A of the SWP contracts. As the courts have long since recognized, the SWP’s “huge gap” between contract allocation amounts and the half or less that can be reliably delivered risks reliance on “paper water,” worth “little more than a wish and a prayer.”[18] DWR has never placed in beneficial use the amounts DWR references in its project definition. As reflected in DWR’s own historical records and numerous other reports, the SWP, which was never fully built as envisioned, is incapable of reliably supplying anything close to “full contract quantities,” without even accounting for further future reductions related to climate change.
The DEIR’s magical thinking about future SWP deliveries also ignores chronic and unresolved problems with oversubscription in the Delta estuary. The State Board’s recent SED, for example, recognizes that “average regulatory minimum Delta outflows are only about 5 MAF [million acre-feet], or about a third of current average outflows and less than 20 percent of average unimpaired outflows. Existing regulatory minimum Delta outflows would not be protective of the ecosystem, and without additional instream flow protections, existing flows may be reduced in the future, particularly with climate change and additional water development absent additional minimum instream flow requirements that ensure flows are preserved in stream when needed for the reasonable protection of fish and wildlife.” (SED 1-9.)
7. The DEIR’s decision to piecemeal the project is contrary to CEQA and not in the public interest.
Given the nature of this project, there is no justification for analyzing it in isolation from its contractual, planned infrastructure, economic, and regulatory components. Because the SWP is operated within a complex web of regulatory, operational, and contractual parameters, operational modifications must be analyzed within that larger context. Furthermore, this is an analysis intended to inform long-term operations. A common understanding of the phrase “long-term” for a water delivery project means years (or decades). Thus, the claim that the impacts can be evaluated in isolation from other planned projects, and while a major regulatory proceeding is underway, is unfounded. Moreover, the fact that the DEIR finds no significant impacts illustrates the deliberate piecemealing at play. There is no independent utility to analyzing a project whose scope is so narrowly defined and whose operation is artificially delinked from sweeping proposed infrastructure and policy changes. Meaningful mitigation measures could only issue from a comprehensive review.
DWR released its prior FEIR for SWP long-term operations on March 31, 2020.[19] There are many similarities between the prior long-term operations project and the current project, which makes DWR’s responses to comments raised in the prior CEQA analysis instructive. In its FEIR Master Response to comments (Master Response 8: Other State Efforts), DWR stated:
“The public interest would not be served if DWR ignored the independent nature of long-term SWP operations and attempted to prepare a single, comprehensive EIR that attempted to treat all aspects of wide range of related activities as a single project. The scale of the document would be impractical, and opportunities to look at alternatives to component parts of the massive project would be lost. Commenters would likely be overwhelmed with technical detail.”
On the contrary, however, the State Water Board’s SED[20] for Phase II of the Bay-Delta Plan runs over 6,000 pages, contains voluminous technical detail, and multiple alternatives. It serves the public interest by describing the scientific, legal, and technical details relevant to understanding environmental impacts in a complex estuary. Moreover, it addresses component parts of the plan, including non-flow management measures such as temperature controls and habitat restoration, varying climatic conditions (e.g., severe droughts), and regulatory and voluntary compliance measures. The Board received over 400 separate comments on the SED, demonstrating that meaningful input was possible despite the high level of technical detail. Given the complexity of California’s water systems, DWR’s claims regarding the public interest ring hollow.
8. The DEIR does not adequately analyze environmental justice impacts.
The DEIR’s environmental justice chapter contains recitations of federal and state environmental justice guidelines while emphasizing that CEQA does not require environmental justice analysis (8-1). It then discusses the demographic and socio-economic data of populations in the counties within and adjacent to the legal Delta and provides a cursory analysis of why the proposed project would not impact disadvantaged communities based on scoping on environmental justice impact area from the Initial Study (8-7).
This approach contains major flaws and omissions. First, it does not attempt to evaluate environmental justice impacts to communities that utilize the Bay-Delta estuary for recreation, sustenance, and commerce. As has been documented elsewhere, including in comments submitted to the State Water Board, Delta environmental justice communities are adversely affected by water diversions by the SWP (and other projects), including through reduced fish availability and harmful algal blooms.[21]
Second, it does not account for impacts to environmental justice communities served by the SWP. Many households in those communities are already struggling to pay for drinking water, and SWP operational and infrastructure decisions that increase contract costs directly impact water bills. Moreover, by excluding these communities and a reduced deliveries alternative, the DEIR avoids assessing how they might benefit from a healthier ecosystem.
9. The Tribal Cultural Resources section omits tangible impacts to Tribes.
As extensively documented in a Civil Rights Act complaint submitted to USEPA, tribes whose ways of life are deeply connected to the health of the entire estuary, have suffered and continue to experience harm from exclusionary water laws and the ecosystem destruction created by the operation of the SWP and other water diversion and conveyance projects.[22] Hence, the DEIR’s inappropriate narrowing of the project’s geographic scope excludes analysis of upstream impacts to tribes. Those impacts include loss of fish species and insufficient flows for ceremonies and other activities.
Also, while the DEIR appropriately discusses the importance of the Delta as a Tribal Cultural Landscape (7-8,9), it finds no significant impacts (7-13,14). This finding is based on the DEIR’s overall conclusion that the proposed SWP operational changes would not have any significant environmental impacts. As is the case elsewhere in the DEIR, the missing analytical step is DWR’s refusal to address how the continued operation of the SWP consistent with historical operations is the impact. The fact that the proposed project contains no new physical infrastructure is irrelevant. The damage will largely come from future diversions; meaningful mitigation measures under DWR’s control would come from a reduced deliveries alternative that was not included in the DEIR.
Conclusion
DWR’s choice to conduct a narrow and minimalist CEQA analysis under the guise of agency discretion and selective reading of case law contravenes both CEQA’s intent and DWR’s additional legal and public interest responsibilities. In the DEIR, DWR has selected a limited project scope, provided no context for the baseline conditions, omitted analysis of inter-related actions, eliminated reasonable project alternatives, eliminated 18 resource topics, omitted reasonably foreseeable regulatory actions, denied responsibility for conducting public trust analysis, and claimed that its analysis has independent utility. Unsurprisingly, the DEIR finds no significant environmental impacts, and no basis for mitigation measures. Nevertheless, DWR expects the state’s regulatory agencies (DFW and the State Water Board) to rely on this EIR when making decisions regarding acceptable fish mortality, flows, and water rights permits. They should not. In fact, should DWR finalize and certify the EIR without substantive revisions, the regulatory agencies should not consider it at all.
[1] 14 Cal. Code Regs, § 15126.6; see also Public Resources Code, Sections 21000-21006.
[2] Sierra Club v. County of Fresno (2018) 6 Ca.5th 502, 511 [quoting Laurel Heights Improvement Assn. v. Regents (1988) 47 Cal.3d 376, 405].
[3] Id. at 520.
[4] County of Inyo v. City of Los Angeles (VI)(1984) 160 Cal.App.3d 1178, 1183..
[5] We Advocate Thorough Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 68, 693.
[6] Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277, 286-288.
[7] City of Long Beach v. City of Los Angeles (2018) 19 Cal.App. 5th 465, 488.
[8] Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 358.
[9] See: See https://water.ca.gov/News/Public-Notices/2020/March-2020/Final-EIR-for-SWP-Operations, accessed June 19, 2024.
[10] 14 Cal. Code Regs, § 15126.6; see also Public Resources Code, Sections 21000-21006.
[11] Master Response 14, II.1.14-2
[12] Citizens for East Shore Parks v. Cal. State Lands Comm. (2011) 202 Cal.App.4th549, 576-577 (East Shore Parks).
[13] Fish & Game Code, § 2081, subd. (c) and National Audubon Society v. Superior Court 1983 33 Cal.3d 420, 446.
[14] San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 646, 655.
[15] CEQA Guidelines, § 15151.
[16]County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199 [Inyo III].
[17] See California Trout, Inc. v. State Water Resources Control Board (1989) 207 Cal.App.3d 585, 618.
[18] Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.3d 892, 909, 914-915.
[19] See https://water.ca.gov/News/Public-Notices/2020/March-2020/Final-EIR-for-SWP-Operations, accessed June 19, 2024.
[20] See: https://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/staff_report.html, accessed June 28, 2024.
[21] See: https://www.restorethedelta.org/wp-content/uploads/2024-01-19-DTEC-Comments-on-Phase-II-Draft-Staff-Report-and-SED.pdf, accessed June 28, 2024.
[22] See: https://www.restorethedelta.org/wp-content/uploads/2022-12-16-Bay-Delta-Complaint-and-Petition.pdf, accessed June 28, 2024.