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MATTHEW L. EMRICK (SBN 148250) LAW OFFICES OF MATTHEW EMRICK 3881 Scenic Court El Dorado Hills, CA 95762 Telephone: (916) 337-0361
[email protected] Attorneys for Plaintiff, City of Antioch SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO
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CITY OF ANTIOCH,
Case No.
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Plaintiff/Petitioner, 12 13 14 15
vs. CALIFORNIA DEPT. OF WATER RESOURCES; and DOES 1-50, Inclusive
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Defendants/Respondents
VERIFIED PETITION FOR WRIT OF MANDATE; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Violation of California Environmental Quality Act [Code of Civil Proc sec. 1085, 1094.5; Public Resources Code sec. 21167 to 21168; Notice of preparation of record]
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Exempt from filing fees Gov. Code 6103
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INTRODUCTION 1. Petitioner, City of Antioch (“Antioch” or “City”) files this petition/complaint seeking a writ of mandate under California Code of Civil Procedure §§ 1085 and 1094.5
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and under Code of Civil Procedure § 1060 and Government Code § 11350 directing the
26 DEPARTMENT OF WATER RESOURCES (“DWR”) to vacate its approval of the Final 27 Environmental Impact Report (“FEIR” or “CWF EIR”) for the proposed California 28 1 Petition for Writ of Mandate
1 WaterFix Project (“CWF”) certified on July 21, 2017 along with the associated Findings 2
and Statement of Overriding Considerations and to revise its findings to conform to law.
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2.
The California Environmental Quality Act (“CEQA”) set forth at Public
5 Resources Code sections 21000 et seq. requires a public agency such as DWR to prepare 6 an environmental impact report (“EIR”) for a proposed project that could potentially have 7
a significant impact on the environment.
The EIR is required to: 1) provide public
8
agencies and the public in general with detailed information about the effect which a 9 10 proposed project is likely to have on the environment; 2) describe the ways in which 11 significant impacts from the project might be minimized; and 3) to indicate and describe 12
alternatives to the proposed project (Public Resources Code sec. 21061).
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3. As set forth in this Petition, the CWF FEIR violates CEQA as follows: 1) fails to
15 adequately describe the CWF Project and its operations; 2) fails to mitigate the significant 16
impacts of the CWF on Antioch and its water supply as specifically identified in the Final 17 18
EIR; 3) uses an invalid baseline that is intentionally designed to minimize actual adverse
19 impacts on Antioch’s water supply; 4) relies on a proposed Adaptive Management Plan 20 that is poorly defined with key components deferred and piece-mealed; 5) 21
relies on
mitigation that is not feasible; 6) fails to adequately analyze the impacts of proposed tidal
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restoration projects. PARTIES TO THE ACTION
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4. Plaintiff, the City of Antioch (“City” or “Antioch”) is a municipality located in eastern Contra Costa County on the south bank of the San Joaquin River and within the
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area known as the “legal Delta.” The City has diverted water from the Delta for over 150 years for municipal water supply purposes (including drinking water supply). The City
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has a population of about 105,000 citizens.
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5. Defendant, Department of Water Resources, (“DWR”) is a state agency created
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under the laws and regulations of the State of California. DWR operates the State Water
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Project. The CWF will become a part of the State Water Project.
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6. Antioch is informed and believes that other parties may claim an interest in the 9 10
CWF and these proceedings; however, Antioch is ignorant of the true names and
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capacities of such Real Parties in Interest and/or Defendants and therefore sues such
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parties herein as Does 1 through 50, inclusive, by such fictitious names. Antioch will
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amend the complaint to allege their true names and capacities when ascertained. Antioch 14 15
is informed and believes, and based thereon alleges, that each of the fictitiously named
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Defendants/Real Parties in Interest, including all or some of the Doe Defendants, are
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responsible in some manner for the occurrences herein alleged.
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BACKGROUND A. Antioch’s Water Rights and Water Supply System
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7. Antioch possesses adjudicated pre-1914 appropriative water rights in the Delta.
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Antioch’s rights to water includes both San Joaquin and Sacramento River flows. DWR
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has recognized a priority of use of Antioch’s water rights to at least 1868. Antioch’s
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water rights have priority over DWR’s water rights.
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8. Antioch obtains its fresh water at an intake located in the San Joaquin River channel within the Delta just north of the City in Contra Costa County. This area of the
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Delta is known as the “Western Delta.” 9. The City serves drinking water to over 100,000 citizens. In 2015, the City
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supplies approximately 4,521 million gallons of raw and treated water to 31,798
5 connections (customers) within its service area. Supplied water is predominantly potable 6 water delivered to residential properties, which are the City’s principal land uses. 7 8
10. The City’s intake is often impacted by high saline seawater intrusion from San Francisco Bay due to upstream diversions and storage including DWR’s State Water
9 10 Project. The City diverts water from the Delta when the chloride concentration is less 11 than 250 parts per million (“ppm”), which is consistent with water quality standards set 12
by the State Water Resources Control Board in its Decision 1641 (D-1641). When the
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chloride concentration exceeds 250 mg/L, the City supplements its water supply by 14 15
purchasing fresher, less saline water from Contra Costa Water District (“CCWD”). As a
16 rule, Antioch will uses its own water rights fully when water quality is suitable before 17 purchasing water from CCWD. 18
B. The State Water Project 19 20
11. DWR operates and maintains a large system of water storage, diversion and
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transportation facilities that convey water from Northern California to parts of the Bay-
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Area, the Central Valley and Southern California for use by DWR’s member agencies
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and contractors. This system is known as the State Water Project (“SWP”).
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12. The primary storage facility for the State Water Project is Oroville Dam on the
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Feather River in Oroville CA. Other facilities include San Luis Reservoir and Pyramid
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Lake as well as the North and South Bay Aqueducts and the California Aqueduct.
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13. The construction of the SWP was formally approved by voters in California in 1960 with construction beginning shortly thereafter. At the time of its approval in 1960,
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the State, DWR and in-Delta water users recognized that the SWP would adversely
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impact water quality in the Delta primarily by reducing the amount of flow out of the
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Delta needed to prevent salt water intrusion from the Bay into the Delta. To protect in-
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Delta Water Users such as the City from the adverse impacts of the SWP on in-Delta
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water quality, the California Legislature passed the Delta Protection Act of 1959 (Water 9 10
Code sections 12200 et seq.). Section 12202 provides that the SWP shall be operated to
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control salinity in order to protect in-Delta water uses, or in the alternative, to provide a
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substitute fresh water supply to in-Delta users at no added financial burden.
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14. In addition, the State Water Resources Control Board (“SWRCB”) placed
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certain conditions on the permits it issued for the diversion of water by DWR for the
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SWP to allow the appropriation and diversion of water through the Delta.
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conditions are set forth in part in SWRCB Decisions 1275, 1291 and 1641. Such permit
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These
conditions placed on DWR’s permits for the SWP included salinity control requirements
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in the Delta to mitigate against potential salt water intrusion into the Delta from the Bay.
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15. Based on the foregoing, DWR began meeting with certain municipal and
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corporate entities in the Western Delta in an attempt to negotiate “substitute water
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purchase” contracts in or about 1967. The purpose of these contracts was to partially
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compensate water users such as Antioch when they had to purchase substitute water from
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other sources due to poor water quality at their own diversion locations caused by the
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SWP.
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C. The 1968 Agreement 16. On or about April 11, 1968, the City and DWR entered into an Agreement in which DWR would reimburse the City a portion of the City’s costs to purchase substitute
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water based on a formula established in the 1968 Agreement. A true and correct copy of
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the 1968 Agreement was placed into the record by Antioch.
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17. In consideration for such reimbursement to Antioch for purchased substitute
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water, Antioch agreed to release DWR from certain changes in flow within the Delta and 9 10
the San Joaquin River resulting from DWR’s operation of the SWP (section 7 of the 1968
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Agreement). This Agreement has resulted in substantial benefit to DWR far exceeding
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any benefit to the City. For example, because of the 1968 Agreement, DWR has not had
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to meet current Municipal and Industrial water quality standards for the Delta at Antioch 14 15
set by the SWRCB in Decision 1641 (“D-1641”). Instead, DWR is able to meet D-1641
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water quality objectives well upstream of Antioch. This results in substantial financial
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benefit to DWR.
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18. In general, the 1968 Agreement provides that the State will reimburse Antioch 19 20
for one-third of the incremental difference in cost to the City between using water from
21 its own diversion and purchasing substitute water (generally purchased from CCWD) 22 during water years when the river water is useable fewer than 208 days per year. Per the 23
1968 agreement, water is defined as “useable” when the chloride concentration is less
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than 250 mg/L (parts per million), measured at “slack current after daily higher high
26 tide”, which has been determined to occur two hours after higher high tide. 27
19. The 1968 Agreement acknowledges in its Recitals that the average number of
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1 days useable river water is available to the City would decrease due directly to the 2
operation of the SWP:
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In the future the average number of days per year that usable river water will be available to the City will be caused to decrease, and such decrease will be due in part to the operation of the State Water Resources Development System . . .
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20. The fixed term of the 1968 Agreement expires in 2028 before the CWF 7 8 9 10
becomes operational. 21. Section 10 of the 1968 Agreement is often referred to as the “Me-Too” clause. That Section of the Agreement prohibits DWR from making any agreement with an
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entity diverting water in the Delta containing substantially more favorable terms than 12 13 14 15 16 17 18
those granted Antioch in the 1968 Agreement without offering similar terms to Antioch. 10. State [DWR] agrees that other municipal and industrial entities in the Delta will not be granted compensation for damages caused by the State Water Resources Development System under substantially more favorable terms than those used to Compensate the City hereunder. 22. Antioch contends that the only way any new Agreement between DWR and another entity in the Delta can be valid is if DWR grants Antioch substantially similar
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terms as those granted to any other entity. D. The California WaterFix Project (CWF)
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23. For a number of years, DWR and the United State Bureau of Reclamation
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(“USBR”) have been working on a plan to construct a major modification to the SWP
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that would alter where and how water is diverted in and through the Delta to serve their
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member agencies and contractors. This project is now called the California WaterFix
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(“CWF”). The CWF is proposed to be part of the SWP.
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DWR will be the primary
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builder, owner and operator of the CWF (USBR will also be a party to the CWF Project but DWR will be the lead). Construction of the CWF is scheduled to begin
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approximately within the next 5 years. The operation of the CWF is scheduled to begin somewhere between 2029 and 2032. 24. The CWF will consist of two 40-foot tunnels just to the south of Sacramento CA. The tunnels will convey water from the Sacramento River near Hood CA south and
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under the Delta to Clifton Court Forebay near Tracy, CA. From there, water will be 9 10
diverted into the California Aqueduct and conveyed to DWR’s member agencies and
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contractors in the San Joaquin Valley, Central Coast and southern California. Water is
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proposed to be diverted into the tunnels by three intakes on the Sacramento River each
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with a capacity of 3,000 cubic feet per second. The three intakes will be located near 14 15
Hood and Courtland CA.
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25. The CWF will result in a major change as to how water is diverted through the
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Delta. Presently, the SWP conveys water from the Sacramento River to Clifton Court
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Forebay within existing Delta channels such as Georgiana Slough. Conveying fresher 19 20
Sacramento River water within the Delta channels acts to control salinity in the Delta as
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well as to prevent saltwater intrusion from the San Francisco Bay through the
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hydrodynamic effect of the outflow from the Sacramento River. The CWF will remove a
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portion of this fresher Sacramento River water before it enters the Delta, thereby further
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reducing the hydrodynamic effect from the outflow of the river which prevents saltwater
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intrusion into the Delta from the Bay – thus adversely impacting Antioch’s water quality.
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The CWF will also remove water from the Delta before it mixes with other sources of
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water to the Delta thereby changing and degrading the quality of water within the Delta. 26. Nearly all the water presently diverted at Antioch from the Delta has its origin
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in the Sacramento River. The water quality of the Sacramento River is generally much
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better than water from other sources of inflow to the Delta such as the San Joaquin River.
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27. Antioch has conducted significant research and review of the proposed CWF
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and has concluded that the CWF will cause a significant decline in water quality at
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Antioch. Modeling conducted by DWR has also shown diminished water quality at 9 10
Antioch in the form of increased chlorides and bromides beyond applicable thresholds
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and requirements.
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E. The 2016 Contra Costa Water District Agreement
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28. On or about March 24, 2016, DWR entered into an agreement with CCWD 14 15
addressing the recognized significant adverse impacts of the SWP and in particular the
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impacts from the CWF Project (“2016 CCWD Agreement”) on CCWD’s water supply
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and intakes.
Notably Antioch’s intake is located between two of CCWD’s water
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diversion intakes that were determined to be adversely impacted by the CWF. A copy of 19 20 21 22 23
the 2016 CCWD Agreement is set forth in the EIR at Mitigation Measure WQ-7e et seq; Appendix 31B 29. In general terms, the 2016 CCWD Agreement provides that DWR will convey very high-quality water from the Sacramento River to CCWD via the CWF at no cost to
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CCWD. The stated purpose of the 2016 CCWD Agreement is to specifically mitigate the
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projected impacts of the CWF on water quality to CCWD’s water supply resulting from
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the operation of the CWF.
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30. In order to protect CCWD from the admitted harm that will occur as a result of
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the CWF, DWR provided a number of terms to protect CCWD’s water supply in the
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western Delta. Antioch contends these terms provide substantially more favorable
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compensation to CCWD than Antioch receives under its 1968 Agreement. For example,
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some of the protective terms in the 2016 CCWD Agreement include but are not limited
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to: • Section 1.2 provides that the mitigation and protective measures set forth in the
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2016 CCWD Agreement shall be in full force and effect during the entire life of the
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CWF Project.
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Antioch’s 1968 Agreement in contrast expires in 2028 –before the
CWF begins operation (section 1 of the 2013 Amendment to that Agreement). • Under Section 2.0 et seq., DWR agrees to pay for substantial costs (and reimburse
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substantial costs) associated with the construction, operation and maintenance of
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facilities necessary to convey water from the CWF to CCWD including facilities to
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be owned or operated by CCWD (e.g. not part of the CWF). In contrast, under the
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1968 Antioch Agreement, the City has to pay for the cost of power and facilities to
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operate water quality measuring devices for DWR (section 4 of that Agreement).
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• Pursuant to Sections 3.1 to 3.4 of the 2016 CCWD Agreement, DWR guarantees
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CCWD delivery of water quality of 30 ppm chlorides “to the extent feasible” at no
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cost to CCWD and further agrees to pay a penalty to CCWD when DWR cannot
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deliver water of such quality.
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receives only one-third its costs to purchase substitute water based on a water
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Under the 1968 Antioch Agreement, the City
quality threshold of 250 ppm chlorides (see Recitals of the 1968 Antioch
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Agreement). • The 2016 CCWD Agreement provides a very narrow and limited release of liability
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by CCWD. In contrast, DWR has contended (incorrectly) in the recent past that the
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release of liability in Antioch’s 1968 Agreement is broad and includes future
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projects.
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31. To date, DWR has failed to provide Antioch with any terms or compensation
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substantially similar to that granted by DWR to in the 2016 CCWD Agreement. Antioch
10 contends that it is impossible for DWR to recognize impacts of the CWF to CCWD in the 11 2016 CCWD Agreement without admitting that essentially the same impacts will occur to 12 13 14 15 16 17
Antioch because Antioch’s intake is located in the same general area of the Delta as some of CCWD’s intakes. GENERAL ALLEGATIONS 32. Antioch has been concerned for some time regarding potential new conveyance facilities proposed by DWR since about 2006 and the effect on water quality at Antioch.
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33. Over the years, Antioch has voiced its concerns about the adverse impacts of 19 20 certain projects proposed by DWR orally and in writing.
Antioch has commented on the
21 various proposed projects and environmental documents over the years that have proposed 22 23
changes to outflow through the Delta. The original project that emerged to convey water outside of the Delta by tunnels was known as the Bay-Delta Conservation Plan (“BDCP).
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Antioch timely commented on the BDCP Draft EIR on or about July 25, 2014. The BDCP
26 was eventually modified, however, into the CWF in or about 2015, and so, Antioch 27 provided further comments to DWR expressing concern about CWF’s impacts to 28 11 Petition for Writ of Mandate
1 Antioch’s water supply. Antioch has also filed a protest before the State Water Resources 2 3 4
Control Board against DWR’s proposed Change Petition for the CWF to add the intakes and tunnels as new points of diversions to DWR’s permits. The City has also participated
5 in hearings before the SWRCB. 6
34. With respect to the present EIR and the CWF, Antioch provided timely
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comments on the Draft Recirculated EIR for the CWF (“DREIR”) on or about October 27,
8
2015 and on the Final EIR on January 27. 2017 during the authorized comment period (the 9 10 Final EIR includes the DREIR for the purposes of this pleading).
Antioch’s comments
11 were extensive and are included as part of the record. Antioch has also provided extensive 12
testimony and written comments on the CWF project by way of the on-going hearing
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process before the SWRCB which began in July 2016. 14
35. On or about July 21, 2017, DWR as Lead Agency certified the FEIR and issued
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16 a notice of determination.
DWR did not designate any Real Parties in Interest.
This
17 matter is ripe for review. 18
STANDING, EXHAUSTION, VENUE AND JURIDICTION 19
36. Antioch has a direct and beneficial interest in DWR’s compliance with CEQA
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21 and a legally sufficient EIR for the CWF project because Antioch’s water supply and 22 public trust interests will be directly impacted by the CWF project – as noted by the EIR 23
itself.
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37. As described further in this Complaint, DWR has proceeded contrary to CEQA and the City has provided DWR with substantial evidence demonstrating this fact but
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DWR has ignored Antioch’s comments and evidence. 12 Petition for Writ of Mandate
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38. This Court has jurisdiction over this action pursuant to Code of Civil Procedure sections 1085,1094.5.
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39. Venue is proper in this Court under Code of Civil Procedure section 395 as
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Defendant DWR is a state agency, Defendant DWR’s principal offices and the Office of
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the State Attorney General are located in Sacramento, California. The Primary project 7 8 intakes will also be located in Sacramento County. 9
40. This Complaint is timely filed within any and all applicable statutes of 10 11 12
limitations. 41.
The City has fully and completely exhausted all remedies including
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administrative remedies prior to bringing this action.
The City does not have a plain,
15 speedy or adequate remedy in law and so proceeds as set forth in this Complaint. 16 17
42. On or about August 12, 2017, Antioch provided DWR with written notice of the
18 City’s intent to bring this action (see Exhibit 1 to this Petition). Petitioner will notify the 19 Attorney General of California of the filing this action as required by law. 20 21
FIRST CAUSE OF ACTION Writ of Mandate and Injunction – Violation of CEQA
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43. Antioch incorporates paragraphs 1 through 42 into this cause of action. 44. In general, CEQA requires the lead agency to identify all significant effects on
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the environment caused by the Project including such impacts that cannot be avoided.
27 (Public Res Code 21100 (b)).
Additionally CEQA requires that the lead agency through
28 an EIR describe and evaluate feasible measures for minimizing or avoiding the direct, 13 Petition for Writ of Mandate
1 indirect and cumulative impacts on the environment (Public Res Code 21100 (b); Cal 2
Code Regs, Title 14, (“CEQA Guidelines”) sec. 15126.4). Baseline for identifying project
3 4
impacts is the existing condition and any deviation must be supported by substantial
5 evidence. (CEQA Guidelines, sec. 15125). As described further in this cause of action, 6 the Final EIR violates the requirements of CEQA. 7 8
Inadequate Project Description 45. As the courts have often stated, an accurate, stable and finite project description
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is the sine qua non of a legally sufficient EIR. County of Inyo v. Los Angeles (1977) 71
11 Cal.App.3d 185, 192.
A project description that is changing and shifting is legally
12 insufficient for the purposes of CEQA. 13
San Joaquin Raptor Rescue Center v. County
Merced (2007) 149 Cal.App.4th 645.
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Shifting and conflicting Project Description(s) 46. The CWF project description for the FEIR is inconsistent, shifting and
17 conflicting. The CWF Change Petition uses the preferred alternative with two “boundary” 18
operating conditions known as Boundary 1 and Boundary 2. These are the operating
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conditions under which water users such as Antioch are to determine the extent of harm to
21 water supply and water quality from the CWF.
These boundary conditions represent an
22 operational difference of about 2.5 million acre feet of water to be exported from the Delta. 23
However, the FEIR does not fully evaluate these boundary conditions and so is not able to
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validly disclose the full impacts of CWF operations on water users such as Antioch. The
26 boundary conditions have no proposed operational rules or criteria to which to judge or 27 determine impacts to water supply and water users in the Delta. 28 14 Petition for Writ of Mandate
1
Vague, deferred and changing impacts of the proposed AMMP
2
47. In the present case, pursuant to the Final EIR, the CWF will operate in part
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based on a proposed Adaptive Management and Monitoring Program (“AMMP”). The
5 AMMP will be applied to adaptively manage the CWF to meet certain flow and water 6 quality based standards for fish. Notably, however, the proposed AMMP in the FEIR 7 8
provides only a vague description of program objectives and the program’s conceptual framework. The proposed AMMP operating criteria are loosely defined, and “adjustments
9 10 of water operations” or boundaries of “established conditions,” are left undefined and 11 deferred to the future.. Because both the operating conditions and the AMMP are poorly 12
defined, the impacts of the CWF project on water quality in Delta are largely unknown and
13
cannot be reasonably determined from the FEIR. There are no metrics, standards, or 14 15
boundaries in place that would inform municipalities and water rights holders such as
16 Antioch to as to the full potential scope impacts from the CWF to water supply and water 17 quality. (see generally p. 3-283 of the FEIR). 18
48. Additionally, the Final EIR indicates that the AMMP will serve as a means to 19 20
change WaterFix operations beyond permitted limits: The collaborative science effort is expected to inform operational decisions the ranges established by the biological opinion and 2081b permit for the within proposed project. However, if new science suggests that operational changes may be appropriate that fall outside of the operational ranges evaluated in the biological opinion and authorized by the 2081b permit, the appropriate agencies will determine, within their respective authorities, whether those changes should be implemented.1
21 22 23 24 25 26 27
1
FEIR p. 3-287
28 15 Petition for Writ of Mandate
1
49. The EIR, however, does not indicate who the “appropriate agencies” might be
2
and what are or will be the limits of their “respective authorities.” The EIR does not
3 4
indicate the “new science” (or even the type of “new science”) that may influence the
5 “appropriate agencies” to change operations beyond permit limits. In addition, it is unclear 6 whether the Boundary scenarios evaluated by DWR for the WaterFix Change Petition 7
Proceedings (known as Boundary 1 and Boundary 2) represent “bookends” for proposed
8
operations, or whether future operations may fall outside of the range represented by 9 10 Boundary 1 and Boundary 2 – which as pled elsewhere in this complaint where not fully 11 evaluated in the FEIR. The impacts of such changed operations beyond permit limits are 12
also not analyzed in the FEIR.
13
50. The AMMP fails to provide Information regarding the goals and objectives of 14 15
the AMMP; decision criteria and a description of the type(s) of information that will be
16 considered to implement changes in operations; logistical details regarding who will 17 participate, when they will meet, and how members of the public or water users can 18
participate in the process; details of the monitoring, data management, data sharing, and 19 20
decision-making process; and procedures to be implemented when disputes or
21 disagreements occur and cannot be readily resolved. 22 23
Failure to analyze and disclose known project impacts 51. In addition to the AMMP, the Boundary 1 and Boundary 2 scenarios used to
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define operating condition bookends for preferred project Alternative 4A before the
26 SWRCB during the on-going change petition process are not discussed in any detail in the 27 body of the FEIR and do not appear to have been used in DWR’s determination that the 28 16 Petition for Writ of Mandate
1 proposed WaterFix project would have “less than significant/not adverse” impacts on 2
chloride at Antioch.2
3
52. DWR states in the FEIR that, “As shown in Appendix 5E, the operation of the
4
5 future conveyance facility under a possible adaptive management range represented by 6 Boundary 1 and Boundary 2 will be consistent with the impacts discussed for the range of 7
alternatives considered in this document” and that, “Boundary 1 and Boundary 2 also
8
encompass the full range of impacts found in the analysis prepared for H1 and H2 (as well 9 3 10 as H3 and H4).” Appendix 5E of the Final EIR provides an arguably more specific
11 reference to the impacts associated with the boundary scenarios: 12
16
Consistent with the goals of this analysis, the nature and severity of the impacts generally fall within the range of impacts disclosed under Alternatives 1A and 3 for Boundary 1, Alternative 4H3,Alternative 4H3+, and Alternative 8 for Boundary 2, and Alternative 4H4 and Alternative 8 for Scenario 2. However, the analyses and conclusions derived for each of the scenarios below also relied on other EIR/EIS alternatives as noted in the analyses.4
17
53. In sum, the Final EIR masks the impacts of the Boundary scenario operations
13 14 15
18
for preferred Alternative 4A by casting them as alternatives in the Final EIR. However,
19 20
those alternatives which represent, or are closest to, the Boundary Scenario operations of
21 preferred alternative 4A as presented to the SWRCB for the CWF change petition permit 22 indicate significant unavoidable impacts on water quality. 23
Further, those alternatives
indicate that the CWF “would result in increased water quality degradation and frequency
24 25
2
FEIR Figure 8-0a, Comparison of Impacts on Water Quality. Shows impacts at Rock Slough upstream of Antioch
26 but not at Antioch which generally has greater impacts than at Rock Slough. 27
3
FEIR p. 3-288
4
FEIR Appendix 5E, p. 5E-170.
28 17 Petition for Writ of Mandate
1 of exceedance of the 150 mg/L objective at Contra Costa Pumping Plant #1 and Antioch, 2
the 250 mg/L municipal and industrial objective at interior and western Delta locations on
3 4
a monthly average chloride.
By being masked as project alternatives rather than as
5 boundary operating scenarios for the preferred alternative 4A, these impacts are not 6 properly analyzed - nor avoided or mitigated. 7 8 9 10
Improper deferral of identification of source water to meet flow criteria requirements 54. The FEIR improperly defers the determination of the source of water to meet proposed flow criteria for the Preferred Alternative, Alternative 4A. Water Code section
11 12
85086, requires the CWF to meet certain outflow criteria to be determined by the SWRCB
13
as part of the change petition process which is still on-going and not yet set. The FEIR
14
cannot adequately disclose the source of the water to meet flow criteria until that criteria
15
is established by the SWRCB, which it has not. The end result is that the FEIR fails to
16 17 18 19 20
present the full range of impacts that may result from the future determination of this key element of the project’s operation and description. Improper Baseline 55. An EIR must include a description of the physical environmental conditions in
21 22
the area of the project as they exist at the time the notice of preparation is prepared. CEQA
23 Guideline 15125 The environmental setting will normally determine the “baseline” upon 24 which the lead agency will determine if impacts of the project will be significant. CEQA 25
Guideline 15125.
The baseline must be based on actually existing physical conditions
26 27
rather than hypothetical conditions. CEQA Guideline 15125 The ultimate goal in fixing a
28 baseline is to “give the public and decision makers the most accurate picture practically 18 Petition for Writ of Mandate
1 possible of the project’s likely impacts.” Communities for a Better Environment v. South 2
Coast Air Quality Management Dist. (2010) 48 Cal.4th 310.
3
56. In the present case, the EIR relies principally upon a baseline condition that
4
5 does not comply with the requirements of CEQA. The EIR uses both an existing condition 6 (EBC1) and future no-action alternative (NAA) as baseline conditions against which the 7
preferred Alternative 4A project conditions are compared. However, the existing condition
8
scenario (EBC1) does not include the Fall X2 requirement, despite the fact that present 9 10 SWP and CWF operations require compliance with Fall X2.
Fall X2 is a salinity
11 measurement objective set by the United States Fish and Wildlife Service at a location 12
measured by kilometers to the Golden Gate Bridge. It is intended to ensure water quality
13
for endangered Delta Smelt. The X2 objective is generally achieved by ensuring adequate 14 15
outflow during the fall. 57. By not using the proper baseline as required by CEQA with fall outflow past
16
17 Antioch, the FEIR baseline shows higher salinity levels at Antioch higher than existing 18
conditions.
By using higher salinity levels at Antioch under existing conditions, the
19 20
FEIR’s analysis masks the real impacts of the CWF on salinity levels at the City’s drinking
21 water intake. The EIR fails to support with substantial evidence the decision to not use 22 Fall X2 in its analysis. 23
58. The other improper aspect of “baseline” conditions upon which the CWF is
24 25
compared are Antioch’s water diversion operations under its existing water rights.
26 FEIR
The
continually misstates that harm from CWF operations to Antioch are less than
27 significant because the EIR improperly concludes that Antioch uses its water rights only 28 19 Petition for Writ of Mandate
1 “opportunistically” - and that Antioch’s main source of water comes from purchases from 2
CCWD. These assumptions are incorrect, are not supported by substantial evidence, and
3 4
are based solely on speculation and conjecture. Antioch directly disputed these incorrect
5 assumptions in the FEIR regarding the City’s water source and use by providing written 6 comments and information relating to the true and correct way in which the City operates 7
its water diversions. The correct baseline condition is that the City seeks to maximize the
8
use of its water rights in each year to the fullest extent possible at all times. The Final EIR 9 10 has however failed to use this correct information, and so, the Final EIR improperly 11 minimizes the impacts of CWF operations on the City’s water supply. 12
59. DWR has never discussed the City’s water supply operations with Antioch at
13
any time during the formulation of the CWF Project or during the preparation of any of the 14 15
EIRs. The Final EIR has continued to use the improper baseline operating condition, and
16 the Final EIR therefore use a baseline that is speculative and not supported by substantial 17 evidence 18
Significant Impacts to Antioch are not mitigated
19 20
60. An EIR must identify possible significant environmental impacts of a proposed
21 project. CEQA Guidelines 15064, 15126, 15126.2. CEQA allows lead agencies to adopt 22 criteria for determining whether a given impact is significant. Such criteria are generally 23
known as thresholds of significance and have been defined to mean a defined level or
24 25
criteria at which the lead agency finds an effect of the project to be significant. Gentry v.
th 26 City of Murrieta (1995) 36 Cal.App.4 1359. The threshold can be quantitative or
27 qualitative. 28 20 Petition for Writ of Mandate
1
Bromides
2
61. The CWF EIR sets specific thresholds of significance for Bromides of 50 µg/L;
3 4
100 µg/L; and 300 µg/L. For drinking water, the EIR generally uses a Bromide threshold
5 of 100 µg/L. (RDEIR at Chap 4; p. 4.3.4-9)
62. The CWF EIR then determines specific harm to Antioch’s water supply from
6 7
Bromide levels due to the CWF (RDEIR at Chap 4; p. 4.3.4-9):
8
multiple interior and western Delta assessment locations would have an increased frequency of exceedance of 50 µg/L, which is the CALFED Drinking Water Program goal for BROMIDE as a long-term average applied to drinking water intakes… These locations [include] San Joaquin River at Antioch… Similarly, these locations would have increased frequency of exceedance of 100 µg/L, which is the concentration believed to be sufficient to meet currently established drinking water criteria for disinfection byproducts… The greatest increase in frequency of exceedance of 100 µg/L would occur at Franks Tract (6% increase) and San Joaquin River at Antioch (4-5% increase depending on operations scenario).5
9 10 11 12 13 14 15 16 17
63. In addition, the exceedance of Bromide thresholds will be even greater as established by the CWF EIR. The FEIR acknowledges the CWF will operate to meet
18 19
present chloride standards in the Delta under D-1641 established by the State Water
20 Resources Control Board.
The upper threshold of Chlorides established by D-1641 for
21 municipal uses is 250 parts per million. 22
Using the chloride to bromide conversion
formula relied on by DWR during the 2016 SWRCB change petition hearing process (Br
23 24
= 0.00341*Cl + 0.033), bromide levels at 250 parts per million chlorides are equivalent to
25 26 27
5
Appendix B, p. B-87 of RDEIR– (Tables) it is clear that bromide concentrations are expected to increase significantly and to exceed applicable thresholds a much greater percentage of the time..
28 21 Petition for Writ of Mandate
1 890 ug/l bromides. Thus, at the thresholds established in the FEIR (50, 100, 300 ug/l), 2
bromide levels will exceed all such thresholds defined in the FEIR.
3
64. None of the significant bromide impacts are mitigated or overridden. Bromide
4 5
is a potential carcinogen.
6
Chlorides
7
65. The CWF is based on an objective and promise of ability to comply with present
8
9 water quality objectives in the Delta established by the SWRCB in Decision 1641 (“D10 1641”). D-1641 establishes a municipal and industrial maximum exceedance threshold of 11
250 mg/L chloride water quality at Rock Slough in the western Delta just upstream of
12 13
Antioch (landward). 66. However, the model results on which the EIR is based shows that such
14
15 compliance with the D-1641 250 mg/L chloride water quality objectives at Rock Slough 16
will not always be achievable. In fact, DWR’s own modeling indicates that D-1641
17 18
objection of 250 mg/L will be exceeded more frequently under certain CWF operational
19 scenarios than under existing conditions. and therefore, the conclusion of no significant 20 impact on water quality from Chlorides at Antioch is not supported by substantial 21
evidence.
Additionally, DWR’s own model results show that CWF compliance with
22 23
chloride objectives and standards will occur even less frequently under Scenario Boundary
24 1.
Further, DWR’s 2016 CCWD Agreement essentially admits adverse impacts to
25 CCWD’s intakes close to Antioch’s. 26
Thus, DWR’s own analysis, model results, and
proposed mitigation demonstrate a lack of substantial evidence in the record – even with
27 28
increased operational flexibility - that the CWF can (or will) comply with required water 22 Petition for Writ of Mandate
1 quality objectives. 2
67. None of these significant chloride level impacts are mitigated or overridden.
3 4 5
The EIR relies on mitigation that is legally invalid and not enforceable 68. Under CEQA, the EIR must describe and discuss mitigation measures that
6 7
could reduce or avoid a significant impact of the Project. Public Resources Code 21100.
8
Such mitigation measures must be feasible and fully enforceable in order to be legally
9
sufficient. CEQA Guideline 15126.4.
10 11
69. In the present case, the 2016 Agreement between DWR and Contra Costa
12
District (“CCWD”), which is relied on as mitigation for impacts to CCWD from the
13
CWF, is void (“2016 CCWD Agreement”).
14
Antioch (provided in the record as part of the City’s comments), Section 10 sets forth a
Under DWR’s 1968 Agreement with
15 16
parity, or me-too, clause in which DWR agrees to not make any agreement with an
17
entity in the Delta on terms substantially more favorable than those provided Antioch in
18
the 1968 Agreement. The 2016 CCWD Agreement with CCWD provides up to 50,000
19
afa of water at a quality of 30 ppm chlorides or better at no charge to CCWD. The 2016
20 21
Agreement is effective for the life of the CWF and eliminates all release of liability
22
restrictions on CCWD other than specifically to the CWF. These conditions alone are
23
substantially more favorable than those granted Antioch in its 1968 Agreement with
24
DWR.
25 26
70. Until DWR re-negotiates the 1968 Agreement to provide Antioch with
27
substantially similar terms as those granted to CCWD under the 2016 CCWD
28 23 Petition for Writ of Mandate
1 2
Agreement, the 2016 CCWD Agreement is void and unenforceable, and therefore, not feasible as a mitigation measure.
3 4
71. In addition, the 2016 CCWD Agreement, which acknowledges harm to
5
CCWD’s water quality from the CWF, requires that DWR “diligently” pursue
6
negotiations with Antioch to mitigate the impacts of the CWF to Antioch. As Antioch
7 8
said in its written comments, no such negotiations ever occurred. Antioch’s intake for
9
water from the Delta is located between two of CCWD’s intakes - which the 2016
10
CCWD Agreement indicated will be impacted by the CWF. The Final EIR fails to
11
explain why the impacts to CCWD are mitigated for but not the impacts to Antioch
12 13 14 15
which are acknowledged by the 2016 CCWD Agreement (e.g. section 6.6. of the 2016 CCWD Agreement). 72. Finally, the FEIR acknowledges that the operation of the 2016 CCWD
16 17
Agreement will actually impact Antioch. The FEIR concludes that such impact will be
18
less than significant. However, there is no evidence in the Final EIR that DWR ever
19
modeled the Boundary 1 operations scenario for the preferred 4A alternative. Therefore,
20
there is a lack of substantial evidence that the 2016 CCWD Agreement will not result in
21 22 23 24
significant adverse impacts to Antioch’s water quality and water supply. The EIR fails to consider the cumulative impacts of proposed wetland restoration 73. An EIR is required to discuss the cumulative impacts of a project when the
25 26
project’s impacts are cumulatively considerable. CEQA Guideline 15130 A cumulative
27
impact is an impact that is created in combination with other Project’s causing related
28
impacts. CEQA Guideline 15130. Cumulative impacts of a project must be considered by 24 Petition for Writ of Mandate
1
the EIR because the full environmental impact of a project cannot be “gauged in a
2
vacuum.”
Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397. Even where
3 4
cumulative impacts are uncertain, a lead agency must analyze the potential impacts. Id.
5
74. Certain of the FEIR’s alternatives show increased salinity impacts from the CWF
6
in the Delta when wetland restoration is included as part of the project description of such
7
alternative.
The EIR’s preferred alternative, 4A, tends to show reduced salinity in
8
comparison to those proposed alternatives with wetlands restoration. However, in the Final 9 10
EIR, the impacts of Alternative 4A is not compared or considered with the impacts of
11
wetland restoration projects that are known to DWR.
12
The Final EIR fails to analyze the foreseeable long-term impacts of the Project
13
75. An EIR may not rely on information that is not included or sufficiently described 14 15
in the EIR. Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova
16
(2007) 40 Cal.4th 412. Information and data in an EIR must be sufficient and presented in
17
a manner calculated to adequately inform the public and decision makers.
Information
18
scattered or buried in the EIR is generally inadequate to meet the goals of CEQA. 19 20
California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219. The
21
CEQA Guidelines make clear that the direct and indirect environmental effects of a
22
proposed project “shall be clearly identified and described, giving due consideration to
23
both the short-term and long-term effects.” CEQA Guidelines § 15126.2(a);
24 25
76. In the present case, the Final EIR limits analysis for the preferred alternative to
26
only the short-term effects projected to occur in the year 2025, but does not adequately
27
evaluate the environmental impacts that could occur over the long term. for impacts
28 25 Petition for Writ of Mandate
1 2 3 4
beyond the year 2025 – which will be less than 10 years after project approval, and before the project becomes operations. As a result, the FEIR analysis fails to properly quantify the impacts of the CWF or disclose whether such impacts would be significant or not –
5
and thus, it cannot be ascertained whether mitigation should be evaluated, and, if so, what
6
mitigation measures would be feasible.
7
Other violations of CEQA and the Law
8
77. The FEIR fails to adequately address the requirements of the 2009 Delta Reform 9 10
Act, and has excluded analysis of and compliance with California Water Code Section
11
85021, which states in part that it is the policy of the State of California to reduce reliance
12
on the Delta for California’s future water needs. There is no substantial evidence in the
13
FEIR demonstrating how the CWF will reduce reliance on the Delta because the SWRCB 14 15
has not yet made any such determination. CWF.
16
78. The CWF involves a relocation of diversion facilities under DWR’s present
17
permits, which requires a change permit from the State Water Resources Control Board.
18
Such relocation requires a showing of no injury to other legal users of water such as 19 20
Antioch under Water Code section 1702, The Final EIR relies solely on compliance D-
21
1641 as evidence that the Project will not result in injury to other water users in the Delta
22
such as Antioch as required by section 1702.
23
D-1641, however, is not the measure of
injury under section 1702, and the CWF will not operate to meet D-1641 at Antioch. As a
24 25 26 27
result, the Final EIR lacks substantial evidence supporting any conclusion that the CWF will not result in legal injury to other water diverters in the Delta including Antioch. 79. Petitioner has no adequate remedy in law.
28 26 Petition for Writ of Mandate
1 2 3 4 5
80. None of the foregoing substantial impacts are mitigated or overridden and if overridden, such decision is not supported by substantial evidence. The decisions in the EIR to not find an impact “substantial” as set forth in this Petition are not supported by substantial evidence.
6 7
81. WHEREFORE, Petitioner Antioch seeks for relief as set forth in the Prayer to this Petition.
8
SECOND CAUSE OF ACTION Declaratory and Injunctive Relief
9 10
82. Antioch incorporates paragraphs 1 through 78 into this cause of action.
11 12
83. Petitioner, City, contends that the FEIR violates CEQA and that DWR has not
13
proceeded in a manner required by law to validly review the impacts of the CWF for the
14
reasons set forth throughout this petition.
15
84. Antioch is informed and believes and on that basis, alleges that DWR contends
16 17
the FEIR complies with CEQA.
18 19
85.
Antioch desires a judicial determination and declaration of the parties’
respective rights and duties pursuant to Code of Civil Procedure § 1060, including a
20 21
declaration of whether the DWR failed to proceed in the manner required by CEQA when
22
it adopted and certified the FEIR. Such a declaration is necessary and appropriate at this
23
time.
24
86. Injunctive relief is necessary to prevent DWR from continuing to engage in the
25 26
wrongful practices alleged herein. DWR and persons acting in concert therewith have
27 done, are now doing, and will continue to do or cause to be done, the above-described acts 28 unless restrained or enjoined by this Court. Antioch has no plain, speedy, or adequate 27 Petition for Writ of Mandate
1 remedy at law, in that pecuniary compensation alone would not afford adequate and 2
complete relief. Unless Defendants are restrained from committing further wrongful acts,
3 4
their above-described actions will cause great and irreparable damage to Petitioner and to
5 the environment. 6 7
PRAYER FOR RELIEF Wherefore, Antioch prays for relief and judgment as follows:
8
First Cause of Action. 9 10
1. For a peremptory writ of mandate directing DWR: a) to vacate and set aside the
11
certification of the FEIR and its approval of the CWF Project; b) to vacate and set
12
aside the filing of the notice of determination for the CWF Project; and c) to review
13
the Project in its entirety and revise and recirculate the FEIR, to prepare a legally 14 15 16 17
adequate EIR and otherwise comply with CEQA and all other applicable laws. 2. For an order staying the effects of the certification of the FEIR and all related approvals.
18
Second Cause of Action. 19 20 21 22 23
1. For a an order of the court declaring the FEIR to be invalid and in violation of CEQA and the water code. 2. For the issuance of a temporary restraining order, and a preliminary and permanent injunction restraining and prohibiting DWR from carrying out or
24 25
engaging in any action related to the CWF Project that would result in a change
26
or impact to the physical environment until such time as DWR complies with
27
CEQA and other applicable law.
28 28 Petition for Writ of Mandate
1 2 3 4 5 6 7 8 9
Petitioner requests the following additional relief: 1. Costs of suit incurred herein; 2. Attorney’s fees pursuant to Code of Civil Procedure section 1021.5. 3. Such other and further relief as may be warranted. EXPEDITED HEARING REQUESTED. NOTICE THAT PETIONER ELECTS TO PREPARE THE RECORD ON ITS OWN BEHALF [Public Resources Code section 21167.6].- attached as Exhibit 2 Dated: August 15, 2017
THE LAW OFFICES OF MATTHEW EMRICK
10
/S/
11 12
By:
13
Matthew Emrick
____________________________________ Matthew L. Emrick Attorneys for Petitioner, City of Antioch
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Petition for Writ of Mandate
