e-Bulletin: California Supreme Court Finds Bay-Delta Programmatic Environmental Impact Report Complied With CEQA

On June 5, 2008, the California Supreme Court published its decision for In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings.  This case involves a large-scale project to create and implement a long-term solution to problems such as ecosystem deterioration, water quality, water supply reliability, and levee system vulnerability in the Bay-Delta.  In a unanimous decision, the Court reversed a previous ruling by the Court of Appeal, Third District, and determined that the program environmental impact statement/environmental impact report (“PEIS/EIR”) prepared for the project complied with the California Environmental Quality Act (“CEQA”).

The Sacramento and San Joaquin Rivers meet to form a delta near Sacramento, California, that flows through the San Francisco Bay to the Pacific Ocean.  This water system is the hub of California’s two largest water distribution systems and supplies drinking water for two-thirds of California residents and irrigation water for millions of acres of agricultural land.  However, this long-term diversion of the Bay-Delta water, continued competition for the Bay-Delta resources, and pollution have resulted in wildlife habitat loss and the degradation of the Bay-Delta as a reliable source of water.  In 1994, CALFED, a consortium of 18 federal and state agencies, was formed to address the problems facing the Bay-Delta and develop a long-term, comprehensive plan to restore the Delta’s ecological health and to improve management of its water.  CALFED developed a multi-phased, multi-faceted project to address these issues and prepared a comprehensive PEIS/EIR in order to determine and analyze the possible environmental impacts of this project.

In 2000, after CALFED had issued its final PEIS/EIR, petitions for writ of mandate were filed alleging that the PEIS/EIR did not comply with CEQA on a number of grounds.  The parties challenging the project included the RCRC, a nonprofit corporation representing rural counties; the Central Delta Water Agency; the South Delta Water Agency; the California Farm Bureau; and agricultural land owners.  While the Court of Appeal upheld the project and the analysis in the PEIS/EIR on most grounds, it had ultimately struck down the project approvals, finding that the PEIS/EIR was defective because it (1) failed to discuss an alternative of requiring reduced water exports from the Bay-Delta, (2) failed to adequately discuss the environmental impacts of diverting water from other sources to meet CALFED’s goals, and (3) failed to include sufficient detail relating to the Environmental Water Account (“EWA”) portion of the project. 

The California Supreme Court reversed the Court of Appeal, however, and concluded that the PEIS/EIR was not defective in any of these ways.  Regarding the reduced exports alternative, the Court of Appeal had found that a reduced export alternative would have been feasible even though it did not meet CALFED’s water supply objective, reasoning that an alternative need not meet all of CALFED’s goals in order to be feasible.  The Supreme Court rejected this conclusion and found that, in the CALFED program, feasibility was explicitly and strongly linked with the achievement of the program goals.  The Court found that because CALFED had determined that a reduced export alternative would seriously compromise the program’s water supply objective, CALFED properly exercised its discretion when it declined to analyze a reduced export alternative in the final PEIS/EIR. 

The Court of Appeal had also found that because the PEIS/EIR only listed potential sources of water for the program but did not analyze the impacts of supplying such water, the PEIS/EIR did not comply with CEQA.  However, the California Supreme Court reversed this determination as well, finding that CALFED’s PEIS/EIR was a first-tier program EIR and that first-tier EIRs are not required to identify with certainty particular sources of water or to analyze the impacts of supplying water from each identified potential source. 

The Supreme Court also reversed the Court of Appeal’s determination that the PEIS/EIR’s analysis of the EWA portion of the project did not comply with CEQA.  The EWA is a project that CALFED proposed which would provide water for fish without reducing deliveries to water users by authorizing the state and federal governments to acquire, bank, transfer and borrow water beyond that available through existing regulatory actions.  While the PEIS/EIR discussed the EWA only in general terms, the Supreme Court again found that under CEQA’s tiering system, it is proper for a program EIR to discuss a part of the project generally and leave specific project details to subsequent EIRs.  Because the PEIS/EIR was a first-tier EIR, the impacts of the EWA did not need to be identified with particularity.

If you have any questions about the Supreme Court’s In Re Bay Delta decision and its effect on CEQA or California water supplies in general, please contact Best Best & Krieger LLP’s Environmental Law and Natural Resources Group.

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2008 Best Best & Krieger LLP