1 2 3 4 5 6 7 8 9 10 11
SOMACH SIMMONS & DUNN A Professional Corporation
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ROBYN TRUITT DRIVON, ESQ. (SBN 152270) County Counsel LISA A. TRAVIS, ESQ. (SBN 184793) Supervising Deputy County Counsel COUNTY OF SACRAMENTO 700 H Street, Suite 2650 Sacramento, CA 95814 Telephone: (916) 874-5544 Facsimile: (916)874-8207
[email protected] SOMACH SIMMONS & DUNN A Professional Corporation PAUL S. SIMMONS, ESQ. (SBN 127920) KELLEY M. TABER, ESQ. (SBN 184348) BRENDA C. BASS, ESQ. (SBN 306793) 500 Capitol Mall, Suite 1000 Sacramento, CA 95814 Telephone: (916) 446-7979 Facsimile: (916) 446-8199
[email protected] [email protected] [email protected]
EXEMPT FROM FILING FEES PURSUANT TO GOV. CODE, § 6103
Attorneys for Petitioner Sacramento Regional County Sanitation District
15 16
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SACRAMENTO
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SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT, a California public agency,
21 22 23 24
Petitioner, v. CALIFORNIA DEPARTMENT OF WATER RESOURCES, a California state agency,
27
Filed Under Calif. Environmental Quality Act (CEQA) VERIFIED PETITION FOR WRIT OF MANDATE (Code Civ. Proc., §§ 1085, 1094.5; Pub. Res. Code, §§ 21167, 21168, 21168.5)
Respondent.
25 26
Case No.
DOES 1 through 50, Real Parties in Interest.
28 SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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Petitioner Sacramento Regional County Sanitation District (“Regional San” or
1 2
“Petitioner”) alleges: INTRODUCTION
3 1.
4 5
Department of Water Resources (“DWR” or “Respondent”) certifying the Environmental Impact
6
Report1 (EIR) for and approve the California WaterFix Project (“WaterFix” or “Project”). As set
7
forth in detail below, DWR’s certification of the -EIR and approval of the Project violate the
8
California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). 2.
9
SOMACH SIMMONS & DUNN A Professional Corporation
This action challenges the July 21, 2017 action by Respondent California
Unprecedented in size and scope, the Project will construct massive new
10
infrastructure in the Sacramento-San Joaquin River Delta, divert a substantial portion of
11
Sacramento River flow from new diversion points in the north Delta, and result in significant
12
reoperation of state and federal water storage and delivery projects, substantially changing how
13
water flows into and through the Delta. Among its many adverse effects, the Project will result in
14
significant impacts to water quality and to Petitioner’s operation of its wastewater treatment
15
facilities, which discharge treated effluent to the Sacramento River. 3.
16
Under CEQA, DWR was required to fully analyze and mitigate the Project’s
17
potentially significant impacts, and disclose them in a manner reasonably calculated to inform the
18
public, prior to making a decision to proceed with the Project. Rather than making the good-faith
19
effort at full disclosure that CEQA requires, DWR chose to bury the public in paper, producing a
20
series of disjointed and confusing documents based on a vague and shifting project description,
21
incomplete and inaccurate data, and flawed analytical methods. The result was an EIR that
22
improperly deferred impact analyses and mitigation, failed to support many impact
23
determinations with substantial evidence, and did not adequately respond to key comments. By
24
failing to adequately evaluate impacts and comply with CEQA’s substantive and procedural
25
requirements, DWR deprived the public and decision makers of the ability to consider the
26
1
27 28
DWR prepared a joint environmental impact report/environmental impact statement (EIR/EIS) with the Bureau of Reclamation (Reclamation). To date, Reclamation has not issued a Record of Decision with respect to the EIS and Project. This action is therefore limited to challenging the adequacy of the EIR and DWR’s Project approval under CEQA. Petitioner reserves all of its rights and arguments with respect to any future challenge to the adequacy of the EIS under the National Environmental Policy Act (NEPA).
SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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1
Project’s significant environmental impacts in a meaningful way, and failed to demonstrate to the
2
public that WaterFix impacts will be mitigated to the extent feasible.
3
4.
4
failed to proceed in a manner required by law, and violated CEQA when it certified the EIR and
5
approved the Project. Petitioner thus requests that this Court issue a peremptory writ of mandate
6
directing DWR to set aside its certification of the EIR and its related decisions and findings
7
related to the Project, and to issue an injunction preventing issuance of any further approvals,
8
expenditure of funds, or initiation of any construction related to the Project until DWR has
9
complied with CEQA. PARTIES
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SOMACH SIMMONS & DUNN A Professional Corporation
Because of the EIR’s numerous flaws, DWR prejudicially abused its discretion,
5.
Regional San is a public agency formed and existing under division 5, part 3
12
(§ 4700 et seq. of the Health & Saf. Code). Regional San is governed by a Board of Directors
13
composed of the five members of the Sacramento County Board of Supervisors, a member of the
14
Yolo County Board of Supervisors, five members from the Council of the City of Sacramento,
15
two members from the Council of the City of Elk Grove, and one Councilmember from each of
16
the cities of Citrus Heights, Folsom, Rancho Cordova, and West Sacramento. Regional San owns
17
and operates the Sacramento Regional Wastewater Treatment Plant (SRWTP). The SRWTP
18
receives and treats wastewater from a population of approximately 1.4 million people in the urban
19
Sacramento region. The SRWTP currently provides secondary treatment, with a project in
20
progress to treat to a tertiary level, and a permitted discharge of approximately 181 million
21
gallons per day (mgd) of treated wastewater into the Sacramento River in the vicinity of Freeport.
22
6.
DWR is, and at all times has been, a governmental agency and political
23
subdivision of the State of California, formed and existing under the California Water Code, with
24
its principal place of business in the County of Sacramento. DWR operates the State Water
25
Project (SWP), subject to permits issued to it by the State Water Resources Control Board
26
(SWRCB), specifically, SWRCB Water Right Permits 16478, 16479, 16481, and 16482. DWR’s
27
operation and management of the SWP is at all times subject to the obligations and limitations of
28
all applicable state, federal, and other laws, including CEQA and the CEQA Guidelines. DWR is SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
3
1
the lead agency under CEQA for the preparation of the EIR and for approval of the Project.
2
Does 1 to 50, inclusive, may have, or may claim to have, interests in the Project, the exact nature
3
of which is presently unknown to the Petitioner. The true names or capacities, whether
4
individual, corporate, associate, or otherwise, of Does 1-50, inclusive, are unknown to Petitioner,
5
who therefore sues these parties by fictitious names. Petitioner will request leave to amend this
6
Petition to show their true names and capacities when ascertained.
7
JURISDICTION AND VENUE
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SOMACH SIMMONS & DUNN A Professional Corporation
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7.
This action is brought pursuant to Code of Civil Procedure section 525 et seq.,
1085 and 1094.5, and Public Resources Code sections 21167, 21168, and 21168.5. Venue is
10
proper in Sacramento County under Code of Civil Procedure sections 393, 394, and 395 because
11
DWR is a state agency, DWR’s principal offices are located in Sacramento, and Sacramento
12
County is where the Project is proposed to be constructed and where many of the Project’s
13
environmental impacts will occur.
14
GENERAL ALLEGATIONS
15
The WaterFix Project
16
8.
WaterFix is one of the largest public works projects ever proposed in California,
17
rivaling the California Aqueduct and Shasta Dam, and it will be the most expensive water-related
18
project in the history of California. The Project would build three new intakes in the north Delta
19
and a system of tunnels and forebays to convey water from the Sacramento River directly to the
20
south Delta for export. The three new intakes would be built on the east side of the Sacramento
21
River, in Sacramento County, between Clarksburg and Courtland. Each intake facility would
22
have the capacity to divert 3,000 cubic feet per second (cfs) of water for an average annual yield
23
of 4.9 million acre-feet (AF). From the intakes, water would flow into a forebay and tunnel
24
system that would carry water south approximately 44 miles to the Clifton Court Forebay in the
25
south Delta, where it would then be exported from state and federal pumps for use in the San
26
Francisco Bay Area, San Joaquin Valley, and Southern California.
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9.
The Project will dramatically change how water flows through the Delta and how
DWR and Reclamation operate the SWP and Central Valley Project (CVP), respectively. By SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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diverting up to a third of the flow of the Sacramento River from massive new intakes in the north
2
Delta, the Project will cause the Sacramento River to flow in reverse more frequently and for
3
longer periods of time, and substantially reduce flows of cleaner Sacramento River water into the
4
Delta, substantially degrading the quality of water in the Delta. EIR Process
5 6
WaterFix began in 2006, and was initially proposed as the Bay Delta Conservation
7
Plan (BDCP). The BDCP envisioned updating the SWP and CVP by adding north Delta points of
8
diversion on the Sacramento River, and by providing for large-scale species conservation through
9
a 50-year habitat conservation plan (HCP)/natural communities conservation plan (NCCP). The
10
HCP and NCCP were intended to ensure the BDCP complied with the federal Endangered
11
Species Act (ESA) and California Endangered Species Act (CESA).
12 SOMACH SIMMONS & DUNN A Professional Corporation
10.
13 14
11.
In March 2008, DWR issued a Notice of Preparation (NOP) for initiating the
preparation with Reclamation of a joint EIR/EIS for the BDCP. 12.
On or about May 30, 2008, Petitioner submitted comments on the NOP.
15
Petitioner’s comments covered water quality effects, as well as indirect impacts on Central Valley
16
wastewater treatment entities, that would be caused by the proposed BDCP.
17
13.
Specifically, Regional San commented that the Draft EIR should undertake an
18
antidegradation analysis pursuant to state and federal law to determine if the BDCP would
19
degrade water quality in the Delta by removing higher-quality water from the Sacramento River
20
before it reaches the Delta. Regional San also expressed its concern that the selected project
21
should minimize direct and indirect impacts on local agencies in the Central Valley, particularly
22
to water and wastewater agencies.
23 24 25
14.
In February 2009, DWR issued a revised NOP for initiating the preparation with
Reclamation of a joint EIR/EIS for the BDCP. 15.
On or about May 14, 2009, Petitioner submitted comments on the revised NOP.
26
Petitioner’s comments focused on the need to engage Central Valley stakeholders in the EIR
27
process, the importance of sound science and full analysis for all conservation measures and
28
mitigation measures, and water quality effects. Regional San specifically noted four water quality SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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components for consideration: salinity, mercury, organic carbon, nutrients; along with impacts to
2
aquatic organisms and cumulative impacts.
3
On or about August 26, 2009, Petitioner also submitted comments jointly with
4
East Bay Municipal Utilities District (EBMUD) and the Sacramento County Water Agency on the
5
revised NOP. Petitioner’s comments covered water quality and operational effects that would be
6
caused by the proposed BDCP. Petitioner expressed concern that the DEIR/EIS should consider
7
that the BDCP has the potential to increase the frequency and/or duration of reverse flow events
8
in the Sacramento River, which can prevent the Freeport Project from operating its intake.
9
SOMACH SIMMONS & DUNN A Professional Corporation
16.
17.
In December 2013, DWR released the joint DEIR/EIS for the BDCP pursuant to
10
CEQA and NEPA. Initially, the DEIR/EIS was set for a 120-day review period, but after
11
significant public objection about the length and complexity of the document, the review period
12
was extended twice.
13 14
18.
DWR received 12,204 comment letters from interested parties; totaling
18,532 unique comments on the DEIR/EIS.
15
19.
Petitioner submitted comments on the DEIR/EIS on July 29, 2014.
16
20.
Petitioner’s comments objected to the DEIR/EIS’s failure to adequately analyze
17
impacts to Regional San’s operations, failure to properly model the temperature impacts of the
18
BDCP on the Sacramento River, failure to consider antidegradation requirements, as well as the
19
failure to adequately identify mitigation measures. Regional San objected that the DEIR/EIS’s
20
organization and scope made the document too difficult to comprehend, which prevents
21
meaningful environmental review. Specifically, the use of two different baselines increased
22
confusion and impedes the public’s ability to understand the BDCP and its impacts on the
23
environment. Petitioner further objected that the modeling of the Bay-Delta hydrology was
24
fundamentally flawed, and thus, failed to comply with CEQA, emphasizing the DEIR/EIS’s
25
failure to describe or analyze the Project’s impacts on flow in the Sacramento River near
26
Regional San’s discharge location. Petitioner also objected that the impacts on temperature in the
27
Sacramento River had not been adequately analyzed or modeled, and that the potential for
28
temperature changes to cause Regional San to fail to comply with its National Pollutant SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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Discharge Elimination System (NPDES) permit without significantly changing operations had
2
gone completely unacknowledged and unaddressed. Petitioner also expressed concern that the
3
DEIR/EIS did not fully address the Project’s water quality impacts related to antidegradation
4
analyses and failed to mitigate for such impacts.
SOMACH SIMMONS & DUNN A Professional Corporation
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21.
In July 2015, DWR and Reclamation issued a Recirculated Draft EIR and
6
Supplemental Draft EIS (RDEIR/SDEIS) that maintained all the original BDCP alternatives, but
7
made fundamental changes to the proposed Project. In response to comments on the DEIR/EIS
8
challenging the viability of providing long-term (50-year) assurances regarding species viability,
9
the RDEIR/SDEIS modified the Project to eliminate the HCP/NCCP component and analyzed
10
three new diversion and conveyance alternatives, Alternatives 2D, 4A, and 5A. These new
11
alternatives do not include the large-scale conservation efforts contained in the HCP/NCCP.
12
These alternatives proposed to achieve ESA and CESA coverage through ESA section 7
13
consultations (16 U.S.C. § 1536) and an incidental take permit (ITP) under section 2081(b) of the
14
CESA. DWR did not provide a redline version of the DEIR/EIS that reflected the changes made
15
in the RDEIR/SDEIS.
16
22.
DWR proposed that one of these non-HCP alternatives, known as WaterFix
17
(Alternative 4A), be identified as the preferred alternative, thereby replacing the BDCP preferred
18
alternative (Alternative 4). As presented in the RDEIR/SDEIS and the Final EIR/EIS
19
(FEIR/EIS), the Project retains the new water conveyance facilities with three new diversion
20
points in the north Delta, the tunnel conveyance and ancillary facilities, operational elements,
21
limited habitat restoration in the form of mitigation for project construction impacts, and other
22
environmental commitments purported to address construction and operation-related impacts of
23
the new conveyance facilities.
24
23.
The RDEIR/SDEIS was circulated for public review for 112 days.
25
24.
Public comments on the RDEIR/SDEIS included 21,700 comment letters, totaling
26 27
12,492 unique comments. 25.
Petitioner submitted comments on October 30, 2015.
28 SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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Petitioner’s comments covered effects to water quality related to degradation and
temperature that would be caused by proposed Alternative 4A. 27.
Petitioner objected to the RDEIR/SDEIS’s failure to address Regional San’s July
4
2014 comments on the effects of the proposed north Delta diversion. Petitioner also objected to
5
the RDEIR/SDEIS because fundamental flaws in the technical analysis undermined its
6
conclusions. Specifically, Petitioner objected that faulty assumptions, errors, and outdated tools
7
used in the modeling of Bay-Delta hydrology precluded an accurate or meaningful evaluation of
8
Project impacts to reverse flows, temperature, and ammonia in the Sacramento River and the
9
Delta. Petitioner further objected to the RDEIR/SDEIS’s failure to analyze cumulative impacts
10
on water quality in the Delta. Petitioner also objected that the RDEIR/SDEIS continued to fail to
11
disclose or properly mitigate the impacts to Regional San as a result of the Project.
12 SOMACH SIMMONS & DUNN A Professional Corporation
26.
28.
Petitioner expressed concern that the RDEIR/SDEIS was so badly organized that it
13
did not enable the public to understand the proposed Project, not to mention the Project’s impacts
14
on the environment. Finally, Petitioner stated its concern that the RDEIR/SDEIS was so
15
confusing and misleading that it could not support responsible agency decision making.
16
29.
On September 14, 2015, the Delta Independent Science Board (Science Board), a
17
group of professional scientists tasked with detailed review of the EIR/EIS for its scientific
18
accuracy and suitability, issued its review of the RDEIR/SDEIS and objected to its structure,
19
organization, and content. The Science Board further objected that these deficiencies caused the
20
RDEIR/SDEIS to fail as an informational document, such that it was incapable of providing the
21
public and decision makers with the ability to make an informed decision.
22
30.
On December 22, 2016, just days before the start of major year-end holidays,
23
DWR and Reclamation issued the FEIR/EIS for the Project. The FEIR/EIS maintained all the
24
original project alternatives and the RDEIR/SDEIS Alternatives 2D, 4A, and 5A. Buried in an
25
appendix, rather than being presented in the body of the FEIR/EIS, DWR discussed significant
26
new information that the Project’s operations will be much broader than in Alternative 4A,
27
operating instead between two new conditions identified as Boundaries 1 and 2. Boundary 1
28
represents an increase in total average annual exports of approximately 1.2 million acre-feet SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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(MAF) relative to the environmental baseline selected by DWR, and Boundary 2 represents a
2
reduction in total average annual exports of approximately 1.1 MAF relative to the baseline.
3
These two operational scenarios represent a differential spread of approximately 2.3 MAF/year on
4
average. In addition to this fundamental revision of the proposed Project, the FEIR/EIS presented
5
extensive new material, including entirely rewritten impact sections. The FEIR/EIS did not
6
contain summary descriptions of the changes that were made to the RDEIR/SDEIS, nor did it
7
include a redline version to identify where changes were made.
8
SOMACH SIMMONS & DUNN A Professional Corporation
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31.
DWR provided a public comment period for the FEIR that ended on January 30,
2017. The only notice of this comment period was contained in a Federal Register notice that
10
was released on December 30, 2016, when Reclamation issued the Notice of Availability for the
11
FEIR/EIS. That notice required reference to yet another Federal Register notice issued by the
12
U.S. Environmental Protection Agency to determine that a formal comment period on the EIR
13
coinciding with the 30-day federal public comment period was being provided. (Notice of Avail.
14
of the FEIR/EIS, BDCP/WaterFix, 81 Fed.Reg. 96485 (Dec. 30, 2016); see 81 Fed.Reg. 96451.)
15
That notice, which was issued by Reclamation, and not DWR, stated that “the end of the Federal
16
Register notice period is intended by DWR to close the period by which any person may submit
17
to DWR any grounds for noncompliance with CEQA, consistent with CEQA Section 21177(a).”
18
(81 Fed.Reg. 96485.)
19 20 21
32.
Extensive comments were submitted on the FEIR/EIS. Petitioner timely submitted
comments on the FEIR/EIS on or about January 30, 2017. 33.
Petitioner’s comments covered effects on reverse flows, temperature, and Regional
22
San’s operations that would be caused by the proposed Alternative 4A WaterFix, including expert
23
reports that constituted substantial evidence to support Regional San’s comments addressing
24
Project impacts.
25
34.
Petitioner objected to the FEIR/EIS’s failure to adequately disclose effects of the
26
proposed Project on Regional San’s operations, particularly during reverse flow events.
27
Petitioner further objected to the FEIR/EIS as being so difficult to navigate that it was often
28
unclear exactly what has been disclosed, and given that complexity, the review period for the SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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FEIR/EIS was too brief. Additionally, Petitioner objected to the FEIR/EIS’s failure to adopt
2
feasible mitigation measures to lessen or avoid the Project’s potentially significant environmental
3
impacts on Regional San’s operations both in regard to reverse flow events and temperature
4
changes in the Sacramento River. Petitioner further objected that the FEIR/EIS lacked an
5
accurate, stable, and finite project description (most notably in regard to the addition of
6
Boundary 1 and Boundary 2), which prevented accurate modeling and did not accurately
7
represent the full range of Project impacts.
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35.
Petitioner expressed concern that the FEIR/EIS’s responses to comments were not
responsive and failed to address in detail the reason why specific comments made by Regional
10
San were not accepted or impacts considered. Petitioner also objected that a new environmental
11
commitment included in an FEIR/EIS appendix promising that the Project will not impact
12
Regional San’s operations is not a substitute for actual analysis of Project impacts nor is it
13
feasible mitigation under CEQA.
14
36.
On June 9, 2017, the Science Board issued its review of the FEIR/EIS. Among
15
other criticisms, the Science Board concluded that that the FEIR/EIS “resembles its predecessors
16
in failing to communicate clearly the principal findings and uncertainties of an enormous report.”
17
37.
On July 21, 2017, DWR certified the EIR portion of the FEIR/EIS, approved the
18
Project, and filed a Notice of Determination (NOD) for the Project. At the same time, DWR
19
adopted a 373-page CEQA Findings of Fact and a Statement of Overriding Considerations
20
(Findings).
21
38.
At the time that DWR released its NOD, it issued a 294-page document entitled
22
“Developments after Publication of the Proposed Final Environmental Impact Report,” that was
23
ambiguously dated “July 2017.” DWR’s findings asserted in a footnote that the FEIR/EIS
24
released in December 2016 was in fact “a proposed Final EIR/EIS” (emphasis in original), but
25
that the true “Final EIR” certified by DWR included the December 2016 document, as well as the
26
July 2017 “Developments” document. This document purported to address comments on the
27
December 2016 FEIR/EIS, and further changes to the Project that had been developed by DWR
28
since December 2016. SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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Related Approval Processes
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SOMACH SIMMONS & DUNN A Professional Corporation
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39.
Despite the fact that the EIR/EIS was not complete, to expedite implementation of
3
the Project, in October 2015 DWR and Reclamation submitted a water rights change petition to
4
the State Water Resource Control Board (SWRCB) to add the north Delta points of diversion for
5
the SWP and CVP. Over 50 parties, including cities, counties, urban and agricultural water
6
suppliers, individuals, and environmental groups, submitted protests to the change petition on the
7
grounds that the Project will injure legal users of water as well as the environment and public
8
trust resources. Those parties, including Petitioner, are participating in a quasi-judicial
9
evidentiary hearing before the SWRCB to determine whether the change petition should be
10
granted (SWRCB Hearing). Throughout the more than year-long first phase of the SWRCB
11
Hearing, new information about the Project, including significant impacts that were not disclosed
12
in the FEIR/EIS, have been revealed, including impacts to water supply, water quality,
13
agricultural resources, and other environmental impacts, as well as expert evidence demonstrating
14
that the Project will substantially increase the frequency and duration of significant reverse flow
15
events in the Sacramento River in the area of the SRWTP. At the time of this Petition’s filing, the
16
SWRCB Hearing is still pending, with the second phase set to focus on the environmental effects
17
of the Project and further scrutinize DWR’s analysis in the FEIR/EIS.
18
40.
The Project will result in injury to terrestrial and aquatic species protected under
19
the state and federal ESAs. DWR and Reclamation applied to the U. S. Fish and Wildlife Service
20
(USFWS), National Marine Fisheries Services (NMFS), and California Department of Fish and
21
Wildlife (CDFW) for authorization to “take” numerous protected species during construction and
22
operation of the Project, submitting a Biological Assessment (BA) reflecting their view of the
23
Project’s impacts in July 2016. The BA revealed new information about proposed Project
24
operations that was not disclosed in the RDEIR/SDEIS. On June 16, 2017, the NMFS issued a
25
Biological Opinion (BiOp) for the Project that was more than 1,200 pages long. On June 23,
26
2017, after DWR certified the EIR and approved the Project, the USFWS issued a separate
27
547-page BiOp. The BiOps identified additional impacts to protected species, and required
28
Project modifications designed to reduce impacts to fish but that will substantially increase SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
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impacts as described in the RDEIR/EIS and FEIR/EIS, including impacts to water supply, traffic,
2
and recreation. On July 26, 2017, also after DWR certified the EIR and approved the Project, the
3
CDFW issued an ITP under CESA authorizing impacts to California protected species associated
4
with construction and operation of the Project.
SOMACH SIMMONS & DUNN A Professional Corporation
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41.
On July 21, 2017, the same day that it certified the EIR and approved the Project,
6
DWR approved resolutions authorizing the issuance of $11 billion in public bond financing for
7
the Project and filed a validation complaint in Sacramento County Superior Court to validate the
8
bond resolutions under Code of Civil Procedure section 860. Issuance of bonds will result in
9
DWR incurring a massive financial obligation for the Project that will effectively prevent DWR
10
from meaningfully considering and adopting alternatives to the Project, including the No Project
11
alternative required by CEQA, should this Court find that the Project EIR was certified in
12
violation of CEQA. EXHAUSTION OF ADMINISTRATIVE REMEDIES
13 14
42.
As explained above, Petitioner actively participated throughout the administrative
15
process that led to DWR’s decision to certify the EIR for the Project. Petitioner presented its
16
specific objections to DWR’s decisions through written comments submitted to DWR. Petitioner
17
has fully exhausted all administrative remedies in that the determination by DWR is final, and no
18
further administrative appeal procedures are provided by state or local law.
19 20
43.
Project, and on July 21, 2017, filed a NOD for the Project. STANDING
21 22
Within the last 30 days, DWR took final action with respect to its approval of the
44.
As described above, Petitioner is beneficially interested in the subject matter of
23
this proceeding because the Project will adversely affect the hydrology and water quality in the
24
Sacramento River, the receiving water into which Regional San discharges its treated wastewater.
25
This could impact Regional San’s ability to comply with its NPDES permit and its ability to
26
provide necessary services for its customers. Additionally, the Project will adversely affect other
27
environmental resources within the area where Petitioner and its customers are located. Regional
28
San is committed to being a steward of the environment, and is currently implementing a SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
12
1
$2 billion project to protect Delta water quality, as well as recycled water programs that
2
implement state policy and promote the wise use of resources by maximizing recycled water use.
3
Regional San and its customers will be directly injured by DWR’s failure to comply with CEQA
4
in connection with the Project, as it operations will be impacted by significant environmental
5
effects that have not been adequately analyzed or disclosed.
6
Further, Regional San has standing in the public interest because this case involves
7
public rights and the enforcement of public duties. Specifically, DWR owed a mandatory duty to
8
comply with the procedural and substantive requirements of CEQA. Regional San is not seeking
9
relief greater than or different from the relief sought for the general public. If successful, this
10
action would enforce the mandates of CEQA and thus enforce the public’s right to adequate
11
environmental review under that statute.
12 SOMACH SIMMONS & DUNN A Professional Corporation
45.
46.
By certifying an EIR that is not supported by substantial evidence and by
13
approving the Project even though it was not adequately analyzed under CEQA, DWR has placed
14
the Sacramento River ecosystem and Sacramento-region communities, as well as the water
15
resources relied on by Petitioner, at a significant risk. Thus, Petitioner has standing to assert the
16
claims raised in this Petition. NOTICE
17 18
47.
On August 16, 2017, Petitioner served a notice on DWR, informing DWR of the
19
Petitioner’s intent to file a petition for writ of mandate challenging DWR’s certification of the
20
FEIR and approval of the Project, as required by Public Resources Code sections 21167
21
and 21167.5. A copy of Petitioner’s notice and associated proof of service is attached hereto as
22
Exhibit A and is incorporated herein by reference. ATTORNEYS’ FEES
23 24
48.
Petitioner is entitled to receive attorneys’ fees from DWR pursuant to Code of
25
Civil Procedure section 1021.5 because this action involves the enforcement of important rights
26
affecting the public interest. This action will, among other things, confer a significant benefit on
27
the general public and a large class of persons, and the necessity and burden of enforcement
28
against another public entity makes an award of fees appropriate. SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
13
STANDARD OF REVIEW
1 2
49.
3
Procedure sections 1085 and 1094.5, the Court reviews both DWR’s interpretations of law and
4
the legal effects of any DWR findings on a de novo basis.
5
50.
Pursuant to Public Resources Code sections 21168 and 21168.5 and Code of Civil
6
Procedure sections 1085 and 1094.5, the Court reviews the administrative record to determine
7
whether DWR’s findings on CEQA issues are supported by substantial evidence in light of the
8
whole record and whether DWR proceeded in the manner required by law. INADEQUATE REMEDY AT LAW – STAY AND INJUNCTION
9 10
SOMACH SIMMONS & DUNN A Professional Corporation
Pursuant to Public Resources Code sections 21168 and 21168.5 and Code of Civil
51.
In its comment letters to DWR, Petitioner requested that certification of the EIR
11
and approval of the Project be deferred until the informational deficiencies of the EIR were
12
addressed and resolved, and until adequate mitigation was developed. DWR refused to take such
13
actions, and instead certified the EIR and approved the Project.
14 15 16
52.
Pursuant to Code of Civil Procedure sections 1085 and 1094.5(g), the Court may
stay or enjoin the operation of any administrative decision or order involved in this proceeding. 53.
In light of DWR’s CEQA violations in certifying the FEIR and approving the
17
Project, any action regarding the construction or operation of the Project will irreparably harm the
18
environment as described in this Petition, to the detriment of Petitioner and the Sacramento
19
Valley residents, businesses, and water users.
20
54.
Petitioner lacks an adequate remedy at law for the irreparable harm that the Project
21
activities will cause. Therefore, a stay or preliminary or permanent injunction should be issued in
22
this case restraining DWR from taking any additional actions to issue permits, expend funds, or
23
undertake any construction activities until DWR has complied with CEQA.
24
55.
A stay or injunction of DWR’s actions relating to the Project would not be against
25
the public interest because DWR is required by CEQA to conduct an adequate environmental
26
review of the Project before taking any actions to approve it, because construction and operation
27
of the Project may have significant impacts on the environment, and because DWR will not be
28
harmed by a stay or injunction. SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
14
1
FIRST CAUSE OF ACTION (Violation of CEQA: Fundamentally Inadequate EIR)
2 3 4
SOMACH SIMMONS & DUNN A Professional Corporation
5
56.
Petitioner realleges and incorporates by reference each and every allegation set
forth above. 57.
DWR failed to proceed in the manner required by law because the preparation,
6
circulation, and comment procedures associated with the EIR fundamentally undermined the
7
public’s ability to meaningfully participate in the CEQA process. One of the purposes “of an
8
environmental impact report is to provide public agencies and the public in general with detailed
9
information about the effect which a proposed project is likely to have on the environment.”
10
(Pub. Resources Code, § 21061.) The California Supreme Court has long declared that an EIR
11
“protects not only the environment but also informed self-government.” (Citizens of Goleta
12
Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (quoting Laurel Heights Improvement
13
Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392).) The EIR is an
14
“environmental alarm bell” and must be intelligible and inform the public and policy makers as to
15
the potential impacts of a project; documents that are “hypertechnical and confusing in their
16
presentation may be incomprehensible to the very people they are meant to inform.” (San
17
Franciscans for Reasonable Growth v. City & County of San Francisco (1987) 193 Cal.App.3d
18
1544, 1548.) It is for this reason that CEQA requires that an EIR be written in plain language,
19
based on accessible data and comprehensible to the general public. (See Pub. Resources Code,
20
§ 21003(b).) In preparing and circulating the EIR, DWR flouted these requirements.
21
58.
The EIR is so poorly organized and inconsistent in its analysis that it fails in its
22
essential purpose as an informational document. The EIR is difficult to navigate; impact chapters
23
contain a dizzying number of internal cross-references, and key information about the Project and
24
alternatives are scattered in various EIR appendices and various iterations of the EIR itself. The
25
EIR is at the same time incredibly dense with raw information and severely lacking in necessary
26
detail. DWR’s decision to present a total of 18 alternatives in nearly equal level of detail, using
27
different modeling approaches and multiple, shifting baselines among the alternatives, obscures
28
the fundamental differences among the alternatives. The Project was fundamentally revised SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
15
1
between the DEIR/EIS and RDEIR/SDEIS – with whole sections of the RDEIR/SDEIS rewritten
2
– but the RDEIR/SDEIS contained no redline or strikeout to reveal how or where the impact
3
analyses changed between the DEIR/EIS and RDEIR/SDEIS.
SOMACH SIMMONS & DUNN A Professional Corporation
4
59.
Numerous commenters, including Petitioner and the Science Board, objected to
5
the organization and presentation of material in the RDEIR/SDEIS, which required reviewers to
6
toggle back and forth among multiple extremely lengthy portions of the combined environmental
7
document with no coherent, cohesive presentation. The Science Board found the RDEIR/SDEIS
8
“sufficiently incomplete and opaque to deter its evaluation and use by decision-makers, resource
9
managers, scientists and the broader public.” The Science Board cited fundamental flaws in the
10
RDEIR/SDEIS including, but not limited to, “overall incompleteness through deferral of content
11
to the Final EIR/EIS . . . specific incompleteness in treatment of adaptive management, habitat
12
restoration, levees and long-term effects; and inadequacies in presentation.” As a result of these
13
overwhelming structural, organizational, and content flaws, the Science Board concluded that the
14
RDEIR/SDEIS “fails to adequately inform weighty decisions about public policy.” This failure
15
to provide a cohesive analysis impeded public review and comment of the RDEIR/SDEIS in
16
violation of CEQA’s requirement that an EIR actually inform the public and decision makers.
17
60.
The FEIR/EIS failed to resolve the RDEIR/SDEIS’s fundamental flaws. Instead
18
of providing a user-friendly, understandable analysis of the potential effects of the Project, the
19
FEIR/EIS furthered the unorganized, scattered, and unreadable nature of the previous
20
environmental documents issued for the Project. Combining over 30,000 pages of the 2014 initial
21
draft with certain new material in the 2015 recirculated draft document and unspecified additional
22
new information into the FEIR/EIS (for a cumulative total of more than 113,000 pages) made the
23
task of informed self-government and public participation unwieldy and ineffective. The
24
FEIR/EIS contains approximately 7,200 pages more than the DEIR, and over 12,000 pages of
25
responses to comments. The FEIR/EIS explains that it “contains the full contents of the revised
26
Draft EIR/EIS and appropriate portions of the RDEIR/SDEIS, with necessary corrections and
27
updates.” However, the FEIR/EIS did not disclose what exactly are the “appropriate portions” or
28
“necessary corrections and updates.” The FEIR/EIS does not include a summary or description of SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
16
1
all changes, nor does the document provide a redline of changes made in the FEIR/EIS. The
2
public thus had limited opportunity to understand the changes made in the FEIR/EIS or how those
3
changes affect the analysis of the potential impacts of the Project. The result is a document that
4
buried the public in paper rather than providing readily understandable essential information
5
about the Project’s significant environmental impacts relative to a reasonable range of
6
alternatives. These problems prevented the public from understanding the proposed Project, let
7
alone the Project’s impacts on the environment. The Science Board thus complained that the
8
FEIR/EIS “resembles its predecessors in failing to communicate clearly the principal findings and
9
uncertainties of an enormous report.”
SOMACH SIMMONS & DUNN A Professional Corporation
10
61.
DWR further raised the barrier to the public’s ability to meaningfully participate in
11
the EIR process by attempting to artificially impose a deadline on the opportunity to comment on
12
the FEIR, setting a 30-day period by which “any person may submit to DWR any grounds for
13
noncompliance with CEQA” purportedly “consistent with CEQA Section 21177(a).”
14
(See 81 Fed. Reg. 96486; Bay Delta Conservation Plan, Final EIR/EIS.) The existence of the
15
30-day EIR comment period was disclosed only in the formal Federal Register notice required as
16
part of Reclamation’s responsibility to comply with NEPA for the EIS portion of the document.
17
However, to learn the date of that deadline required that the public refer to yet another notice in
18
the Federal Register posted by the U.S. Environmental Protection Agency on December 27, 2016.
19
(81 Fed. Reg. 96451.) That notice indicates that the review period would end on January 30,
20
2017, less than six weeks after the FEIR/EIS became available to the public. DWR’s decision to
21
limit public comment on the FEIR to a 30-day period that spanned three state holidays, and to
22
limit its notice of the availability of that comment period to a federal notice process, was
23
unreasonable, arbitrary, and capricious in light of the fact that the FEIR/EIS is longer than the
24
RDEIR/SDEIS (for which a 16-week comment period was provided), and contains substantial
25
significant new information. Commenters were required to undertake a lengthy, time-consuming,
26
multi-step process simply to locate responses to their comments. The complexity and
27
unwieldiness of the Project and the FEIR/EIS demanded additional time for public review and
28 SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
17
1
analysis in order for the document to attain CEQA’s goals of informed self-government, public
2
participation, and transparency.
3
62.
4
presented in a manner calculated to adequately inform the public and decision makers, who may
5
not be previously familiar with the details of the project.” (Vineyard Area Citizens for
6
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442.) In preparing
7
and circulating draft and final EIR documents that failed to satisfy CEQA’s informational
8
mandate, DWR prejudicially abused its discretion. For these reasons, among others, DWR failed
9
to proceed in the manner required by law, and its decision to approve the Project was not
10
supported by substantial evidence.
11
SECOND CAUSE OF ACTION (Violation of CEQA: Inadequate Analysis of Significant Reverse Flow Event Impacts to SRWTP Operation)
12 SOMACH SIMMONS & DUNN A Professional Corporation
In these various ways the EIR violates CEQA’s requirement that data “be
13 14
63.
Petitioner realleges and incorporates by reference each and every allegation set
forth above.
15
64.
An EIR must identify all significant effects on the environment caused by a
16
proposed project and contain a sufficient degree of environmental analyses to provide decision
17
makers and the public with information that allows them to understand and intelligently consider
18
environmental consequences of a project before it is approved. (Pub. Resources Code,
19
§ 21100(b); Cal. Code Regs., tit. 14, § 15151.2) The EIR failed to identify and analyze the
20
impacts of the Project on reverse flow events in the Sacramento River, despite comments being
21
raised about the Project’s potential to increase the frequency and duration of such events from the
22
beginning of the environmental review process.
23
65.
Pursuant to its NPDES permit, Regional San may only discharge into the
24
Sacramento River when there is sufficient flow in the river to dilute the discharge at a 14:1 ratio.
25
Thus, significant reverse flow events require Regional San to cease its discharge into the
26
Sacramento River, and divert treated effluent to emergency storage basins (ESBs) located on the
27 28
2
California Code of Regulations, title 14, section 15000 et seq. are herein referred to as the “CEQA Guidelines.”
SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
18
1
SRWTP site. These events can also require that the Freeport Project (located just upstream of the
2
SRWTP) cease its intake of water, further impacting the availability of water supplies for
3
residents of Sacramento, Alameda, and Contra Costa Counties.
SOMACH SIMMONS & DUNN A Professional Corporation
4
66.
The Project’s potential to affect the occurrence of reverse flows in the Sacramento
5
River near Freeport is a result of potential changes in operations of the CVP and SWP. The
6
Project’s intakes could be operated in a way that shifts the timing and magnitude of the CVP and
7
SWP’s north-to-south water exports. These shifts could cause periodic reductions in the volume
8
and velocity of water flowing down the Sacramento River past the Freeport area. Reduced flow
9
downstream of Regional San’s discharge location and the just upstream Freeport Project intake
10
will strengthen the tidal influence at these points, leading to more frequent or stronger reverse
11
flow events in the Freeport area. Reverse flows and tidal influences change on an hourly or sub-
12
hourly basis, but the EIR/EIS relied on monthly average flow data when evaluating flow impacts
13
on the Sacramento River, which essentially masks any potential impacts on the frequency or
14
duration of reverse flow events. Expert evidence submitted to DWR demonstrated that monthly
15
flow average flow modeling cannot accurately analyze reverse flow events, nor the Project’s
16
potential to create more such events.
17
67.
Analysis conducted by EBMUD found that the Project as revised in the
18
RDEIR/SDEIS could cause a 16 percent increase in the frequency of reverse flow events that are
19
significant enough to shut down the Freeport Project intake. The Project-related events will be
20
large enough to require Regional San to cease its discharge as well, since the Freeport Project is
21
located 1.3 miles upstream of Regional San’s outfall. The increase in frequency and length of
22
discharge cessations could require Regional San to construct additional storage basins at the
23
SRWTP and make it more difficult to comply with its NPDES permit discharge requirements.
24
The EIR did not evaluate or disclose these significant impacts, including the potential for
25
significant impacts due to the construction of additional storage basins at the SRWTP.
26
68.
The FEIR/EIS included an “environmental commitment” which stated that
27
modeling for the Project shows that operation “may increase the frequency of reverse flows in the
28
lower Sacramento River at Freeport” and that those “reverse flow events have the potential to SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
19
1
cause [Regional San] to limit discharges from its [SRWTP] to the Sacramento River and hold
2
treated effluent in its storage basins until downstream river flow resumes . . . .” (Environmental
3
Commitment 3B.3.6.) The commitment stated that DWR would work with Regional San to
4
develop operating protocols for the diversions to avoid impacts to SRWTP operations. (Ibid.)
5
This commitment is not a substitute for the impact analysis and mitigation commitments CEQA
6
requires.
SOMACH SIMMONS & DUNN A Professional Corporation
7
69.
Environmental Commitment 3B.3.6, which is described only in an appendix to the
8
FEIR/EIS, essentially concedes that Regional San’s operations will be impacted by the Project,
9
yet this impact is not explicitly mentioned or fully analyzed in the EIR. Stating that DWR would
10
work with Regional San to avoid operational impacts does not excuse DWR from CEQA’s
11
requirements to make a good faith effort to disclose and analyze potential environmental impacts.
12
Instead, this approach violates CEQA because it defers any real analysis of the Project’s impacts
13
on Regional San’s operations (and by extension, impacts to operations of the Freeport Project
14
intake) to a later, loosely defined process through which DWR and Regional San would develop
15
“operating protocols.” Deferring impact analyses in this way does not satisfy CEQA’s
16
requirement to analyze the whole of a project, but instead unlawfully piece-meals the analysis of
17
potential impacts.
18
70.
Because the EIR did not analyze or adequately mitigate the significant impacts of
19
Project-caused reverse flow events on Regional San’s operations, DWR prejudicially abused its
20
discretion and failed to proceed in the manner required by law in certifying the EIR and
21
approving the Project.
22
THIRD CAUSE OF ACTION (Violation of CEQA: Inadequate Analysis of Water Quality Impacts)
23 24 25 26
71.
Petitioner realleges and incorporates by reference each and every allegation set
forth above. 72.
In addition to the EIR’s failure to fully analyze impacts related to reverse flow
27
events, it also failed to accurately and adequately analyze or mitigate significant impacts to water
28
quality in the Sacramento River, and particularly how these impacts could affect Regional San’s SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
20
1
ability to comply with its NPDES permit. The Project’s potential to alter the temperature of water
2
in the Sacramento River is particularly concerning to Regional San, as it identified in its
3
numerous comment letters on the various versions of the EIR.
4
Regional San’s NPDES permit contains a temperature schedule that adjusts
5
Regional San’s ability to discharge based on river and effluent temperatures. If river
6
temperatures increase, Regional San may be severely limited in the times it can discharge to the
7
Sacramento River, which may cause increased diversions to ESBs or the construction of cooling
8
towers for effluent to pass through before discharge into the river. The construction of such
9
facilities also will have environmental impacts, none of which have been mentioned in the EIR.
10
SOMACH SIMMONS & DUNN A Professional Corporation
73.
74.
Many factors contribute to water temperature in the Sacramento River, including
11
temperature of water released from upstream reservoirs, river flow rate, air temperature,
12
humidity, and wind speed. The EIR considered only one of these factors – flow rate – and simply
13
states that the Project will cause only “minor changes” in river flow rates at Freeport, and that
14
could, in turn, result in a minor increase in river temperature. However, this statement is
15
unsupported by any modeling data. While modeling data for Microcystis blooms included some
16
temperature modeling, this was done only using a monthly average temperature, which mask
17
actual temperature impacts when compared to an hourly scale. Additionally, the Project will
18
change flows from the current level, meaning that the conclusion that flow rates, and thus river
19
temperature, will not change significantly, is contrary to the evidence included in the EIR and
20
other statements made in the EIR.
21
75.
Because the Project has the potential to increase river temperatures, which impact
22
Regional San’s ability to operate the SRWTP, the EIR should have evaluated the extent of the
23
Project’s impacts on Sacramento River temperatures. In doing so, it should have considered how
24
these temperature changes will affect Regional San’s operations, particularly the potential need to
25
expand the capacity of Regional San’s ESBs or construct cooling towers such that it can remain
26
in compliance with its NPDES permit during Project operations.
27 28
76.
Again, Environmental Commitment 3B.3.6 essentially concedes that Regional
San’s operations will be impacted by the Project, but does not disclose the nature or extent of SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
21
1
such impacts. By deferring analysis of significant impacts to Regional San’s operations (and by
2
extension, impacts to operations of the Freeport Project intake) to an undefined process that will
3
occur sometime in the future, the EIR failed to satisfy CEQA’s requirement to analyze the whole
4
of a project.
5
In addition to the specific water quality impact related to temperature, the EIR also
6
fails to consider state and federal requirements related to antidegradation, including any
7
cumulative impacts the Project might have on water quality in the Sacramento River and the
8
Delta. The antidegradation policies prohibit the degradation of water quality unless specific cost-
9
benefit analyses are conducted. The EIR does not sufficiently discuss these requirements, nor
10 11
SOMACH SIMMONS & DUNN A Professional Corporation
77.
how the Project complies with these requirements. 78.
The required antidegradation analyses are particularly crucial because several
12
waterbodies are listed as impaired for certain pollutants under the Clean Water Act
13
section 303(d), and there exist stringent electrical conductivity (EC) water quality standards in the
14
Delta. For example, the Sacramento River from Knights Landing to the Delta (the segment in
15
which Regional San discharges) is listed for several impairments, including pesticides and
16
“unknown toxicity.” The Export Area of the Delta Waterways segment is listed as impaired for
17
EC, among other constituents. Many other Delta-area water segments are also listed for various
18
impairments, all of which could be impacted by the changes in flow resulting from the Project.
19
79.
Because the EIR did not adequately analyze the impacts of the Project on water
20
quality and how those impacts will affect Regional San’s operations, DWR prejudicially abused
21
its discretion and failed to proceed in the manner required by law in certifying the EIR and
22
approving the Project, and its decisions to do so are not supported by substantial evidence.
23
FOURTH CAUSE OF ACTION (Violation of CEQA: Improper Mitigation of Impacts)
24 25 26 27 28
80.
Petitioner realleges and incorporates by reference each and every allegation set
forth above. 81.
DWR violated CEQA by improperly incorporating many necessary mitigation
measures into the EIR’s project description, characterizing them as “environmental SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
22
1
commitments,” and relying on this tactic to conclude potentially significant Project impacts will
2
be less than significant or otherwise reduced without analyzing and disclosing the full scope of
3
Project impacts. This constitutes a failure to proceed in the manner required by law. (Lotus v.
4
California Department of Transportation (2014) 223 Cal.App.4th 94.)
SOMACH SIMMONS & DUNN A Professional Corporation
5
82.
The environmental commitments are designed to reduce or eliminate numerous
6
project impacts, including significant impacts to water quality and many other impact areas. Thus
7
DWR was required to treat them as mitigation measures. Contrary to the claims in the EIR, many
8
of the “environmental commitments” (including Environmental Commitment 3B.3.6) are not
9
“standard,” “already compulsory,” or “proven methods” to avoid or reduce environmental
10
impacts, but vague and untested measures whose feasibility and effectiveness cannot be
11
determined. Many of the environmental commitments require the future development of
12
mitigation plans that involve the exercise of substantial discretion by the Project proponents
13
themselves during implementation.
14
83.
The commitments themselves are inadequate as mitigation because they contain
15
undefined goals, no standards by which to measure success, or have the potential to result in new
16
significant effects that are not analyzed in the EIR but subject to possible future environmental
17
review. Further, styling these measures as “commitments” is inaccurate and misleading because
18
not only are they not set forth in the Project description, but many contain qualifying language
19
and offramps such that their effect cannot be ascertained or guaranteed. Additionally, at no point
20
in the EIR were these commitments analyzed for feasibility – a key requirement for CEQA
21
mitigation measures.
22
84.
Environmental commitments were claimed to be factored into the impact analysis
23
for nearly every resource area analyzed in the EIR. However, the environmental commitments
24
are only described in one of the numerous appendices to the EIR. Whether characterized as part
25
of the project description or mitigation, burying the environmental commitments in an appendix
26
subverts CEQA’s informational mandate by denying the public the opportunity to review and
27
understand them in the context of the rest of the EIR. Assuming that their implementation will
28
reduce impacts, without any analysis or evidence in support, prevented the public from SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
23
1
understanding the full scope of the impact of the proposed actions or commenting on the
2
effectiveness of the environmental commitments as mitigation.
3
85.
The EIR’s environmental commitments are plainly mitigation measures. CEQA
4
requires that mitigation measures be separately identified and analyzed for their efficacy and
5
feasibility. The EIR’s failure to discuss the significance of Project impacts apart from these
6
de facto mitigation measures is a fatal structural deficiency in the EIR and resulted in a failure to
7
disclose the full scope of Project impacts. By omitting material necessary to informed decision
8
making and public participation, DWR failed to proceed in the manner required by law, and its
9
decisions to certify the EIR and approve the Project are not supported by substantial evidence.
10
FIFTH CAUSE OF ACTION (Violation of CEQA: Inadequate Response to Comments)
11
SOMACH SIMMONS & DUNN A Professional Corporation
12 13 14
86.
Petitioner realleges and incorporates by reference each and every allegation set
forth above. 87.
A CEQA lead agency must evaluate comments on environmental issues received
15
from persons who reviewed and commented on the draft EIR, and the lead agency must prepare
16
written responses to every comment on the draft EIR. (CEQA Guidelines, § 15088(a).) When a
17
comment raises a significant environmental issue, or the recommendations and objections raised
18
in the comment are at variance with the lead agency’s position, the lead agency must address the
19
comment in detail, giving reasons why specific comments and suggestions were not accepted.
20
(Id., § 15088(b).) In particular, where comments from responsible experts disclose new or
21
conflicting data or opinions that cause concern that the agency may not have fully evaluated the
22
project and its alternatives, these comments may not simply be ignored. There must be good
23
faith, reasoned analysis in response. Conclusory statements unsupported by factual information
24
are insufficient.
25
88.
DWR failed to respond adequately to numerous comments, suggestions, and
26
recommendations on the DEIR/EIS and RDEIR/SDEIS, including detailed technical comments
27
and expert evidence, made by Petitioner and other commenters with regard to the adequacy of
28
key elements of the EIR, including, but not limited to: SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
24
SOMACH SIMMONS & DUNN A Professional Corporation
1
a.
the Project description;
2
b.
the baseline for evaluating impacts;
3
c.
the modeling that formed the basis of the EIR’s analysis and impact
4
determinations;
5
d.
the methodology and evidence used to analyze the Project’s significant
6
environmental impacts (including, but not limited to, impacts to hydrology, water quality,
7
water supply. flood control, and state and federally protected fish species);
8
e.
the need for and adequacy of proposed mitigation measures;
9
f.
the range of alternatives; and
10
g.
other significant issues, including the overall inadequacy of the EIR as an
11
informational document.
12
89.
DWR also ignored, or otherwise failed to adequately address, numerous
13
substantive comments on the FEIR/EIS that were submitted during the formal comment period
14
provided for the proposed FEIR/EIS. The responses to comments contain conclusory statements
15
that are unsupported by substantial evidence in the record. Numerous responses do not fully
16
respond to the comments as submitted, or otherwise reflect a good faith, reasoned analysis.
17
Petitioner and other members of the public objected to the adequacy of the responses to
18
comments on the FEIR/EIS. The Science Board specifically objected that the responses, “like the
19
FEIR/EIS itself” “completely missed the point about the need to make the report readily
20
understood by decisionmakers and the public.” Despite these objections, DWR did not revise the
21
FEIR/EIS to correct the deficiencies.
22 23
90.
law, and its decision to approve the Project was not supported by substantial evidence.
24
SIXTH CAUSE OF ACTION (Violation of CEQA: Failure to Recirculate EIR)
25 26 27
For these reasons, among others, DWR failed to proceed in the manner required by
91.
Petitioner realleges and incorporates by reference each and every allegation set
forth above.
28 SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
25
1
CEQA requires that if significant new information is added to an EIR after notice
2
of public review is given but before final certification of the EIR, the lead agency must issue a
3
new notice and recirculate the revised draft EIR for public comment and public agency
4
consultation. (CEQA Guidelines, § 15088.5(a).) New information that triggers the recirculation
5
requirement may include changes in the project as well as new evidence of a new, or substantially
6
more severe significant impact. (Ibid.) Recirculation is also required when the draft EIR was “so
7
fundamentally and basically inadequate and conclusory in nature” that public comment on the
8
draft EIR was essentially meaningless. (Ibid.)
9
SOMACH SIMMONS & DUNN A Professional Corporation
92.
93.
The FEIR/EIS and parallel regulatory processes (including consultations and
10
permitting under the federal and state ESAs, and evidence submitted in the SWRCB Hearing),
11
revealed new significant environmental impacts and substantial increases to the severity of
12
previously identified significant impacts that the Project will cause. For example, DWR’s
13
294-page document entitled, “Developments after Publication of the Proposed Final
14
Environmental Impact Report” and ambiguously dated “July 2017,” purported to address
15
evidence of new significant impacts identified in comments on the December 2016 “proposed”
16
FEIR/EIS and those resulting from the myriad of changes to the Project that had occurred since
17
December 2016. That document, however, was no more than a post hoc rationalization for
18
DWR’s approval of the Project that it made the same day. In that document DWR inaccurately
19
characterized the many substantial changes to the Project as “minor” and dismissed, without
20
supporting evidence or analysis, the potential significant impacts those changes will cause on the
21
theory that the new impacts will not be “substantial” in light of the Project’s already massive
22
impacts.
23
94.
Examples of significant new information that triggered recirculation of the EIR
24
include the fact that the scope of the Project’s operations changed between the RDEIR/SDEIS
25
and FEIR/EIS, increasing from the Alternative 4A scenario to now operating between
26
Boundaries 1 and 2. The boundary scenarios represent a significantly different range of
27
operations than the preferred alternative identified in the RDEIR/SDEIS (Alternative 4A);
28
Boundary 1 represents an increase in total average annual exports of approximately 1.2 MAF SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
26
1
relative to the environmental baseline selected by DWR, and Boundary 2 represents a reduction
2
in total average annual exports of approximately 1.1 MAF relative to the baseline, representing a
3
differential spread of approximately 2.3 MAF/year on average. The FEIR/EIS did not explain or
4
analyze impacts of the Project as DWR now states it will operate (i.e., under much wider range of
5
operations than considered in the DEIR/EIS or RDEIR/SDEIS). Evidence provided to DWR in
6
comments on the FEIR/EIS and in the SWRCB Hearing, revealed the potential for new and
7
substantially more severe significant Project impacts to Sacramento River hydrology and water
8
quality, including significant reverse flow events, among many other significant impacts. Those
9
impacts cannot be understood without a distinct evaluation of each alternative, including impacts
10
SOMACH SIMMONS & DUNN A Professional Corporation
11
of Boundary 1 and Boundary 2 separate from those of Alternative 4A. 95.
Additional significant new information triggering recirculation exists in the
12
June 2017 BiOps issued by the USFWS and NMFS, and the draft ITP from the CDFW, which
13
changed the Project description in ways that were not analyzed by the EIR. For example, the
14
NMFS BiOp contained new spring outflow criteria, which were not disclosed or evaluated in the
15
RDEIR/SDEIS. Because the BiOps and ITP are fundamental components of the Project’s
16
operations, and serve as parameters for those operations, which have the potential to result in new
17
significant impacts, DWR was required to evaluate this new information (and the different and
18
new impacts revealed by it) in a recirculated draft EIR.
19
96.
Recirculation was also required due to the fundamental inadequacy of both the
20
RDEIR/SDEIS and the FEIR/EIS. Each document presented extensive new material, including
21
new versions of the Project and entirely rewritten impact sections (with no indication of where
22
changes occurred from the DEIR/EIS or RDEIR/SDEIS), thus requiring the public to re-read
23
entire impact sections of the document, many of which run into the thousands of pages. For
24
example, the revised water quality impact chapter alone was 1,157 pages long, not including
25
figures, which are located in a separate file. As with the DEIR/EIS and RDEIR/SDEIS, the size,
26
structure, and manner of presenting information in the FEIR inhibited review and informed public
27
participation, and the too-short review period denied Petitioner and the public a meaningful
28
opportunity to locate, let alone evaluate, the new information contained in the FEIR/EIS and the SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
27
1
validity of the conclusions DWR drew from it. The magnitude of the Project changes from the
2
RDEIR/SDEIS, and the problems with the presentation of material, necessitated recirculation for
3
an additional, appropriate public review.
SOMACH SIMMONS & DUNN A Professional Corporation
4
97.
Despite the changes to the Project after release of the RDEIR/SDEIS, the extensive
5
unidentified revisions and additions to the FEIR/EIS, and substantial evidence that the Project
6
will result in new or substantially more severe significant impacts that were not evaluated,
7
disclosed, or mitigated in the FEIR/EIS, DWR failed to recirculate the EIR or any portion of the
8
EIR as required by CEQA. As a result of DWR’s failure to recirculate the EIR, Petitioner, the
9
public, and other public agencies were deprived of a meaningful opportunity to review and
10
comment on the approved Project and its substantial adverse environmental consequences. By
11
failing to amend and recirculate the EIR, DWR failed to proceed in the manner required by law,
12
and its decision to approve the Project was not supported by substantial evidence.
13
SEVENTH CAUSE OF ACTION (Violation of CEQA—Insufficient Findings and Statement of Overriding Considerations)
14 15 16 17
98.
Petitioner realleges and incorporates by reference each and every allegation set
forth above. 99.
CEQA Guidelines section 15091(a) requires a lead agency to make specific written
18
findings for each significant effect identified in an EIR. Specifically, the agency must make one
19
of three findings: (1) that changes or alterations have been required in, or incorporated in, the
20
project which avoid or substantially lessen the significant environmental effect; (2) that such
21
changes or alterations are within the responsibility and jurisdiction of another public agency, and
22
that such changes have been adopted or can and should be adopted by that agency; or (3) specific
23
economic, legal, social, technological, or other considerations make infeasible the mitigation
24
measures or project alternatives identified in the EIR. These findings must be supported by
25
substantial evidence in the administrative record. (CEQA Guidelines, § 15091(b).)
26
100.
Under Public Resources Code section 21080(b), a lead agency may not approve a
27
project with significant and unavoidable impacts unless it finds, based upon substantial evidence,
28
that specific overriding economic, legal, social, technological, or other benefits of the project SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
28
1
outweigh the project’s unavoidable significant effects. The EIR identifies numerous impacts to
2
be significant and unavoidable, but DWR found these impacts justifiable and adopted a statement
3
of overriding considerations.
4
DWR’s findings in connection with certification of the EIR and approval of the
5
Project are not supported by substantial evidence in the record. These deficiencies include, but
6
are not limited to, the following:
7
a.
Findings regarding the feasibility of alternatives;
8
b.
The finding that the Project is the environmentally superior alternative;
9
c.
Findings of consistency with the public trust doctrine;
10
d.
The statement of overriding considerations;
11
e.
The findings regarding water quality and water supply impacts, including
12 SOMACH SIMMONS & DUNN A Professional Corporation
101.
the scope and significance of impacts and the effectiveness of mitigation; and
13
f.
The findings regarding biological impacts, including the scope and
14
significance of impacts and the effectiveness of mitigation.
15
102.
The findings fail to clearly identify the changes or alterations to the Project that are
16
required to avoid or substantially lessen the Project’s significant environmental effects. (CEQA
17
Guidelines, § 15091(a)(1).)
18
103.
There is no substantial evidence in the record to support the statement of
19
overriding considerations. The EIR fails to disclose the true scope of the Project impacts,
20
including, but not limited to, impacts to water quality, water supply, and biological resources, as
21
well as Regional San’s operations, and its failure was not cured by the finding that certain impacts
22
are significant and unavoidable.
23
104.
DWR’s findings and statement of overriding considerations are not supported by
24
substantial evidence, and therefore approval of the Project based upon those findings constitutes a
25
failure to proceed in the manner required by law, and are a prejudicial abuse of discretion.
26 27 28 SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
29
1
EIGHTH CAUSE OF ACTION (Violation of CEQA—EIR Inadequate for Responsible Agency Approvals)
SOMACH SIMMONS & DUNN A Professional Corporation
2 3
105.
4
forth above.
5
106.
Petitioner realleges and incorporates by reference each and every allegation set
Numerous local and state agencies have relied upon, or intend to rely upon in the
6
future, the EIR for purposes of various permits and approvals. Potential and actual responsible
7
and trustee agencies under CEQA include, but are not limited to, the SWRCB, CDFW, the
8
Central Valley Regional Water Quality Control Board, the San Francisco Bay Regional Water
9
Quality Control Board, the Delta Stewardship Council, the California State Lands Commission,
10
the California Department of Parks and Recreation, the California Department of Boating and
11
Waterways, the California Department of Transportation, the Central Valley Flood Protection
12
Board, Regional Air Pollution Control Districts, the California Air Resources Board, the
13
California Department of Public Health, the San Francisco Bay Conservation and Development
14
Commission, the Division of Safety of Dams, the California Public Utilities Commission, the Port
15
of Stockton, and numerous other entities that may provide funding for the Project.
16
107.
As detailed herein, DWR failed to comply with CEQA in connection with the
17
preparation and certification of the EIR. DWR has failed to proceed in the manner required by
18
law, and its conclusions and findings are not supported by substantial evidence. These prejudicial
19
abuses of discretion render the EIR inadequate to support DWR’s approval of the Project as well
20
as related approvals.
21
108.
Similarly, the prejudicial abuses of discretion described herein render the EIR
22
inadequate under CEQA for purposes of the responsible agency approvals. The EIR fails as an
23
informational document and cannot support the approval of any permit or project.
24
109.
Specifically, for example, on July 26, 2017, the CDFW issued to DWR a permit
25
under Fish & Game Code section 2081(b), authorizing incidental take of species protected under
26
the CESA in connection with the Project. The EIR is inadequate to support issuance of that
27
permit in a variety of respects, including but not limited to the following:
28 SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
30
1
a.
The permit imposes spring outflow limitations that have not been analyzed
2
as part of the Project, and which will have environmental effects not identified or studied
3
in the EIR, and which will harm other legal users of water.
4
b.
The permit states that the spring outflow limitations will be accomplished
5
through operation of the CVP and transfers from willing sellers of water. This mitigation
6
is both unenforceable – because DWR has no jurisdiction over the CVP – and speculative
7
– because the premise that there will be willing sellers is not guaranteed, or even likely.
8
110.
9
For all the reasons stated herein, the EIR is inadequate for purposes of the
responsible agency approvals, and DWR has committed a prejudicial abuse of discretion in
10
certifying the EIR. Furthermore, DWR’s findings as to the adequacy of the EIR for purposes of
11
responsible agency approvals are not supported by substantial evidence. PRAYER FOR RELIEF
SOMACH SIMMONS & DUNN A Professional Corporation
12 13
WHEREFORE, Petitioner prays for the following relief:
14
1.
For a stay, temporary restraining order, preliminary injunction, and permanent
15
injunction prohibiting any actions by DWR pursuant to DWR’s approval of the Project and
16
certification of the EIR for the Project until DWR has fully complied with all requirements of
17
CEQA and all other applicable state and local laws, policies, and regulations;
18 19 20 21
2.
For a peremptory writ of mandate directing: a.
DWR to vacate and set aside its certification of the EIR for the Project and
all approvals of the Project; b.
DWR to suspend any and all activities pursuant to DWR’s approval of the
22
Project that could result in an adverse change or alteration to the physical environment
23
until DWR has complied with all requirements of CEQA and all other applicable state and
24
local laws, policies, ordinances, and regulations as are directed by this Court pursuant to
25
Public Resources Code section 21168.9;
26
c.
DWR to prepare, circulate, and consider a new and legally adequate EIR
27
for the Project and otherwise to comply with CEQA in any subsequent action taken to
28
approve the Project; SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT’S VERIFIED PETITION FOR WRIT OF MANDATE
31
1
3.
For Petitioner's costs of suit;
2
4.
For Petitioner's reasonable attorneys' fees pursuant to Code of Civil Procedure
3 4
section 1021.5; and, 5.
For such other and further relief as the Court deems just and proper.
5
OFFICE OF THE COUNTY COUNSEL
6
7
DATED: August 18, 2017
By_~ ~ ~ ~ ~ ~=:::'. . _---f.6.~- - - - - Lis A. Tr ·s Attorneys or Petitioner Sacramento Regional County Sanitation District
8 9
SOMACH SIMMONS & DUNN A Professional Corpo:J_ n
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DATED: August 18, 2017
By
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SACRAMENTO REGIONAL COUNTY SANITATION DISTRJCT'S VERIFIED PETITION FOR WRIT OF MANDATE
32
VERIFICATION
I am the District Engineer of the Sacramento Regional County Sanitation District and am authorized to make this verification for and on behalf of the Sacramento Regional County Sanitation District, and I make this verification for that reason. I have read the foregoing Petition for Writ of Mandate and know its contents. The matters stated in it are true of my own knowledge except as to those matters that are stated on information and belief, and as to those matters I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this
12....~
ay of August 2017 at { (AC (c:-. {)1e n 1-v , California.
EXHIBIT A
SOMACH SIMMONS A
PROFESSIONAL ATTORNEYS
& DUNN
CORPORATION AT
LAW
500 CAPIT'OL MALL, SUITE I 000, SACRAMENTO, CA 958 I 4 OFFICE: 9 I 6-446-7979
FAX; 9 I 6-446-8 I 99
SOMACHLAW.COM
August 16, 2017
Grant Davis, Director California Department of Water Resources P.O. Box 942836 Sacramento, CA 94236 Re:
Notice of Intent to File CEQA Lawsuit-Sacramento Regional County Sanitation District
Dear Mr. Davis: Pursuant to section 21167.5 of the Public Resources Code, this letter is to inform the California Department of Water Resources (DWR) that the Sacramento Regional County Sanitation District will file a petition for writ of mandate to vacate and set aside DWR's decision to certify the environmental impact report (EIR) for and approve the California Waterfix project (Project). The action will be based on DWR's failure to comply with the California Environmental Quality Act (Pub. Resources Code,§ 21000 et seq.) in certifying the EIR and approving the Project. Sincerely, SOMACH SIMMONS & DUNN
J~~ Attorneys for Sacramento Regional County Sanitation District
EXHIBIT A
PROOF OF SERVICE I am employed in the County of Sacramento; my business address is 500 Capitol Mall, Suite 1000, Sacramento, California; I am over the age of 18 years and not a party to the foregoing action. On August 16, 2017, I served the following document(s): LETTER DATED AUGUST 16, 2017 RE: NOTICE OF INTENT TO FILE CEQA LAWSUIT - SACRAMENTO REGIONAL COUNTY SANITATION DISTRICT
on the interested parties in this action, as set forth below: Grant Davis, Director California Department of Water Resources P.O. Box 942836 Sacramento, CA 94236
XXX (by mail) By placing a true copy thereof enclosed in a sealed envelope, with postage fully paid thereon, in the designated area for outgoing mail, addressed as set forth above. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 16, 2017, at Sacramento, California.
EXHIBIT A
