i
2 3 4 5 b
9 10 I1 12
a a A a
13 14 15
w
16
3 O A
17
Sf ~ j
DOWNEY BRAND LLP KEVIIvT M.O'B~TEN (B€ur No. I227I3} KATHRYN L. OEHLSCHLAGER {Bar No.22681?) MEREDITH E. NIKKEL(Bar No. 254818) REBECCA R.A. SMITH {Bar No. 275461) 62I Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: 9X 6.444.1()00 lFacsimle: 916.444.2100 kobrien~downeybrand.com koehlschla~(a,downeybratd.com mnikkel ~,downe~brand.com rsmith ;dowse rand.eom Attorneys for Petitioners 'Reclamation District No.]QS et al. [AdditionalPeCitioners on signature page] SOMACH SIMMONS & DI71'~N A Professional Corporation ANDREW M.HITCHINGS,ESQ.(Baz No. 154554) KELLEY M.TAKER,ESQ.(Bar No. 184348} AARON A.FERGUSON,ESQ.(Bar No.271427)
sao ca~~to~ Mari, since loco
s~~to,cA ~ssia
Telephone: (916)446-7979 Facsimile: (916)446-8199 ahitchin~sC~somachlaw.com ktaberna,somachlaw.com aferguson~a~samachlaw.com Attorneys for Petitioners Glenn-Colusa Irrigation District and Biggs-West Gridley Water District
18 19
SUPERIOR COURT OF CALIFORNIA
m
CQUNTY QF SACRAMENTO
21 22 23 2`~ 25 26 27 28
GLENN-C4LUSA IRRIGATION DISTRICT,a California Irrigation District; RECLA.M~TION DISTRICT NO. 1.08, a California Reclamation District; CARTER MUTUAL WATER COMPANY,a California mutual water company; EL DURADO IRRIGATION DISTRICT,a California Irrigarion Disfirict; EL DORADO WATER &POWER AUTHORITY,ajoint powers authority; MA3~NELL IRKIGATION DISTRICT,a California Irrigation District; NATOMAS CENTRAL MUTUAL WATER COMP~,NY,a California mutual water
CASE NO. VE D PETITION ~'~~ W~II~Il'~' ~~ MAIVIDATE {Code Civ. Proc., §§ 526,527, 1085, 1087, 1U94.5; Pub. Resources Code,§§ 2116,2I 168, 21168.5) California Environmental Quality Act (CEQA)Case [Deemed Verified as to Public Agency Peti#ioners Pursuant to Code of Civil Proc,~ciure Section 446]
1442191.4
AE7'ITION FUR WRIT OF MANDA'
2 3 4 5 6 7 8 9 10 11 12 a
a 13
Q z
14
as
15
z
16
Q
17
company; MERIDIAN FARMS WATER COMPANY,a California mutual water company; OJI BROTHERS FARM,INC., a business entity; OJI FAMILY PARTNERSHIP, a business entity; PELGER MUTUAL WATER COMPANY,a California mutual water company; PLEASANT-GROVE VERONA MUTUAL WATER COMPANY,a California mutual water company; PRINCETON-CODORA-GLENN IRRIGATION DISTRICT, a California Irrigation District; PROVIDENT IRRIGATION DISTRICT, a California Irrigation District; HENRY D. RICHTER, ET AL,a group ofindividuals; RICHTER BROS.,INC., a business entity; RIVER GARDEN FARMS COMPANY,a business entity; SOUTH SLITTER WATER DISTRICT, a California Water District; SLITTER EXTENSION WATER DISTRICT, a California Water District; SLITTER MUTUAL WATER COMPANY,a California Water District; TISDALE IRRIGATION &DRAINAGE COMPANY,a business entity; WINDSWEPT LANDS &LIVESTOCK COMPANY,a business entity; AND BIGGS-WEST GRIDLEY IRRIGATION DISTRICT, a California Irrigation District , Petitioners, v.
18 19
CALIFORNIA DEPARTMENT OF WATER RESOURCES,a California state agency,
20 Respondent. 21 22
DOES 1-50,
23
Real Parties in Interest.
24 2S 26 27 28 1492191.4
2 VERIFIED PETITION FOR WRIT OF MANDATE
2
1.
Petitioners Glenn-Colusa Irrigation District, et al. bring this action under the
3
California Environmental Quality Act(CEQA)(Pub. Resources Code, §§ 21000 e~ seq.) to
4
challenge the July 21, 2017 decision ofthe California Department of Water Resources(DWR)to
5
certify the final environmental impact report(EIR)1 for and approve the so-called "California
6
WaterFix" Project (Project or WaterFix). Unprecedented in size and scope, the Project involves
7
the construction of two massive tunnels under the Sacramento-San Joaquin River Delta,2
8
diversion of a substantial portion of Sacramento River flow from new diversion points in the
9
north Delta, and reoperation of state and federal water storage and delivery projects, substantially
10
changing how water flows into and through the Delta..Throughout the environmental review
11
process, DWR has embraced the fiction that operations of California's two massive water
12
projectsthe State Water Project(SWP)and the Central Valley Project(CVP)—will not change
13
significantly with the $16 billion Project in place, particularly in relation to the release of
14
additional stored water from CVP/SWP reservoirs in northern California for export. DWR has
15
embraced this fallacy in an attempt to persuade the State Water Resources Control Board
16
(SWRCB)that the Project will not cause "injury" to any other legal users of water, a prerequisite
17
to SWRCB's approval of the Projects water rights change petition, for which an application is
18
currently pending. But WaterFix is first and foremost a water conveyance project and it is
19
unreasonable and non-sensical to assume(as DWR has) that a significant portion ofthe new
20
conveyance capacity created by the Project will go unused. DWR's hydrologic modeling, which
21
is the foundation of the EIR's water supply impact analysis, assumes that virtually no additional
22
water will be released from SWP and CVP reservoirs for conveyance through Project facilities,
23
even when conveyance capacity is available in those new facilities. In other words, DWR
24 25 26
` DWR prepared a joint environmental impact reportlenvirorunental impact statement(EIR/EIS) with the United States 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 ofthe EIR and DWR's Project approval under CEQA. Petitioners reserve all of their rights and arguments with respect to any future challenge to the adequacy of the EIS under the National Environmental Policy Act.
27 28
~ As used in this Petition, the term "Delta" means the Sacramento-San Joaquin Delta as defined in California Water Code section 12220. t492191.4
VERIFIED PETITION FOR WRIT OP MANDATE
artificially constrained the model's operational criteria, effectively pre-determining the results of 2
the modeling and, by extension, the results of the water supply impacts analysis. As a result, the
3
EIR fails to satisfy the requirements of CEQA because it does not fairly and accurately describe
4
how the Project will be operated in the real world and the impacts that will result from such
5
operations. 2.
6
When the Project is viewed in a more reasonable light, based on realistic
7
assumptions about how the Project will be operated, its many adverse effects are revealed,
8
including significant impacts to Petitioners' water supplies as well as protected and special status
9
fish species. Under CEQA,DWR was required to fully analyze and mitigate the Project's
10
potentially significant impacts and disclose them in a manner reasonably calculated to inform the
11
public, prior to making a decision to proceed with the Projeet. Rather than making the good-faith
12
effort at fu11 disclosure that CEQA requires, DWR chose to bury the public in paper, producing a
a ~ Q ~
13
series of disjointed and largely incomprehensible documents based on a vague and ever-changing
14
project description, incomplete and inaccurate data, and flawed analytical methods. The result
~
15
was an EIR that improperly defers impact analyses and mitigation, fails to support many impact
z
16
determinations with substantial evidence, and inadequately responds to key comments, among
3 Q
1~
many other flaws.
18
3.
By failing to adequately evaluate impacts and comply with CEQA's substantive
19
and procedural requirements, DWR deprived the public and decision makers of the ability to
20
consider the Project's significant environmental impacts in a meaningful way and failed to
21
demonstrate to the public that the Project's impacts would be mitigated to the extent feasible.
22
DWR prejudicially abused its discretion, failed to proceed in a manner required bylaw, and
23
violated CEQA when it certified the EIR and approved the Project.
24
4.
Petitioners thus request that this Court issue a peremptory writ of mandate,
25
directing DVVR to set aside its certification ofthe EIR and its related decisions and findings
26
related to the Project, and to issue an injunction preventing the issuance or implementation of any
27
further approvals; any expenditure offunds; or construction related to the Project until DWR has
28
complied with CEQA. 1492191.4
q.
VERIFIED PETITION FOR WRIT OF MANDATE
~, . 2
5.
Petitioners are local goverrunent entities, mutual. water companies, private
3
individuals, and business entities that hold rights for the use of water diverted from the
4
Sacramento, American, Feather, and Bear Rivers. Petitioners participated in the environmental
5
review process for the Project by submitting comments as members of an entity known as the
6
North State Water Alliance(NSWA). The NSWA is a coalition of cities, counties, water
7
providers, businesses, agriculture interests, and community groups in Northern California. The
8
NSWA's mission. is to promote responsible statewide water solutions that protect the economy,
9
environment, and quality oflife for the North State region and for all Californians. Petitioners are
10
also members of a group ofProtestants known as the Sacramento Valley Water Users(SVWU),
11
and in this capacity have submitted evidence and testimony related to the Project and its impacts
12
to legal users of water and the environment in the ongoing evidentiary hearing being conducted
13
by the SWRCB for a pending water rights change petition for the Project(SWRCB Hearing).
a, a Q z d ~
15
tunes mentioned herein was, an irrigation district formed in 1920 pursuant to the California
z
16
Irrigation Dfstrict Law to provide irrigation water to farms located in Glenn and Colusa Counties
Q
17
in California.. (Wat. Code, §§ 20500 et seq.) GCID consists of approximately 170,000 acres of
18
land within the Sacramento Valley. GCID holds a combination of pre- and post-1914
19
appropriative water rights to divert water from the Sacramento River and certain tributaries.
20
GCID also holds a water rights settlement contract with Reclamation(Sacramento River
21
Settlement Contract or "SRS Contract"), regarding GCID's diversions from the Sacramento River
22
during the irrigation season. GCID diverts water from the Sacramento River at its pumping
23
facility near Hamilton City. The water is then conveyed through GCID's Main Canal and laterals I
24
to more than 1,5001andowners.
14
6.
25
7.
Petitioner GLENN-COLUSA IRRIGATION DISTRICT(GCID)is, and at all
Petitioner RECLAMATION DISTRICT 108(RD 108)is, and at all times
26
mentioned herein was, a governmental entity of the State of California, formed in 1870 under the
27
Reclamation District Law of 1868 for the purpose offorming a district to build levees and
28
"reclaim" land subject to periodic overflow from neighboring rivers and water bodies. RD 108 1492191.4
5
VERIFIED PETITION FOR WRIT OF MANDATE
1
consists of approximately 58,000 acres in Colusa County and Yolo County. RD 108 exercises
2
riparian water rights and licenses to divert from the Sacramento River and holds an SRS Contract
3 II with Reclamation. 4
8.
CARTER MUTUAL WATER COMPANY(CMWC)is, and at all times
5
mentioned herein was, a California mutual water company organized and existing under the laws
6
of the State of California. CMWC serves the water needs oflandowners on approximately 3,000
7
acres in Colusa County under riparian, pre-1914, and licensed rights. CMWC holds an SRS
8
Contract with the Reclamation.
9
9,
Petitioner EL DORADO IRRIGATION DISTRICT(EDID)is, and at all times
10
mentioned herein was, a governmental entity ofthe State of California formed in 1925 under the
11
Irrigation District Law, Division 11 ofthe California Water Code, commencing with Seetion
12
20500. EDID's service area covers approximately 150,000 acres in El Dorado and Sacramento '
a
a Q ~
13
Counties. EDID claims pre-1914 rights and appropriative water right permits and licenses to
14
divert from the American. River and its tributaries, the Cosumnes River and its tributaries, and
r~
15
both a Central Valley Project Contract and Long Tenn Warren Act Contract with Reclamation to
z
16
divert from Folsom Reservoir.
3 Q
17
10.
Petitioner EL DORADO WATER & FOWER AUTHORITY(EDWPA)is, and at
18
all times mentioned herein was, a joint powers authority between the El Dorado County Water
19
Agency, El Dorado County, and El Dorado Irrigation District, formed under the Joint Exercise of
20
Powers Act ofthe Government Code, commencing with Section 6500. EDWPA has applied to
21
the SWRCB for the partial assignment of state-filed Applications 5644 and 5645, to be used by
22
EDWPA within the water's area of origin in El Dorado County.
23
11.
Petitioner MAXWELL IRRIGATION DISTRICT(MID)is, and at all times
24
mentioned herein was, a governmental entity ofthe State of California formed in 1918 under the
25
Irrigation District Law, Division 11 of the California Water Code, commencing with Section
26
20500, to provide water for irrigation. MID's service area consists of approximately 7,000 acres
27
in Colusa County. MID exercises appropriative water rights and holds an SRS Contract with
28 ', Reclamation. 1492191.4
Q VERIFIED PETITION FOR WRIT OF MANDATE
1 2
12.
Petitioner NATOMAS CENTRAL MUTUAL WATER COMPANY(NCMWC)
is, and at all times mentioned herein was, a California mutual water company organized and
3 ~ existing under the laws ofthe State of California. NCMWC serves the water needs of landowners 4
on more than 35,000 acres ofland within Sacramento and Sutter Counties. NCMWC holds
5
appropriative licenses and a permit to appropriate water from the Sacramento River, as well as an
6
SRS Contract with Reclamation.
7
13.
8
times mentioned herein was, a business entity organized and. existing under the laws ofthe State
9
of California. MFWC diverts water from the Sacramento River for irrigation in a service area of
10
approximately 10,000 acres in Sutter County. MFWC holds licensed appropriative rights and an
11
SRS Contract with Reclamation. 14.
12 a ~ Q
Petitioner MERIDIAN FARMS WATER COMPANY(MFWC)is, and at all
Petitioner OJI BROTHERS FARM,INC.(OBF)is, and at all times mentioned
13
herein was, a business entity organized and existing under the laws of the State of California.
14
OBF diverts water from the Sacramento River for the irrigation of approximately 840 acres in
~
15
Sutter County. OBF holds licensed appropriative rights and an SRS Contract with Reclamation.
z
16
4~
17
herein was, a business entity organized and existing under the laws of the State of California.
18
OFP diverts water from the Sacramento River for the irrigation of approximately 800 acres in
19
Sutter County. OFP holds licensed appropriative rights and. an SRS Contract with Reclamation..
15.
20
16.
Petitioner OJI FAMILY PARTNERSHIl'(OFP} is, and at all times mentioned
Petitioner PELGER MUTUAL WATER COMPANY(PMWC)is, and at all times
21
mentioned herein was, a California mutual water company organized and existing under the laws
22
ofthe State of California. PMWC diverts from the Sacramento River for the irrigation of
23
approximately 3,000 acres in Sutter County. PMWC holds two appropriative water right licenses
24
and one permit, as well as an SRS Contract with Reclamation. 17.
25
Petitioner PLEASANT-GROVE VERONA MUTUAL WATER COMPANY
26
(PGVMWC)is, and at all times mentioned herein was, a California mutual water company
27
organized and existing under the laws ofthe State of California. PGVMWC provides water for
28
the irrigation of approximately 7,000 acres of land in Sutter County. PGVMWC's water rights 1492191.4
VERIFIED PETITION FOR WRIT OF MANDATE
1
are held by shareholders who possess appropriative water rights to divert water from the
2
Sacramento River. PGVMWC holds an SRS Contract with Reclamation.
3
18.
4
is, and at all tunes mentioned herein was, a governmental entity of the State of California, formed
5
in 1918 under the Irrigation District Law, Division 11 of the California Water Code, commencing
6
with Section 20500. PCGID claims riparian and pre-1914 rights and holds appropriative rights to
7
divert water from the Sacramento River for the irrigation of approximately 12,000 acres ofland in
8
Glenn and Colusa Counties. PCGID holds an SRS Contract with Reclamation.
9
a, a a Q
d
19.
Petitioner PROVIDENT IRRIGATION DISTRICT(PID)is, and at all times
10
mentioned herein was, a governmental entity ofthe State of California, farmed in 1918 under the
11
Irrigation District Law, Division 11 ofthe California Water Code, commencing with Section
12
20500. PID claims apre-1914 right and holds appropriative rights to divert water from the
13
Sacramento River for the irrigation of approximately 16,000 acres ofland in Glenn and Colusa
14
Counties. PCGID holds an SRS Contract with Reclamation.
15
20.
Petitioner HENRY D. RICHTER,ET AL. and RICHTER BROS.,INC.
16
(collectively, RB)is, and at all times mentioned herein was, are a group ofindividuals and a
17
business entity organized and existing under the laws of the State of California. RB diverts water
18
from. the Sacramento River for irrigation of approximately 583 acres in Sutter County. RB and/or
19
its affiliates hold licensed appropriative rights and an SRS Contract with Reclamation.
z
w
Petitioner PRINCETON-CODORA GLENN IRRIGATION DISTRICT(PCGID)
3
0
Q
20
21.
Petitioner RIVER GARDEN FARMS(RGF)is, and at all times mentioned herein
21
was, a business entity organized and existing under the laws ofthe State of California. RGF
22
diverts water under riparian and appropriative rights from the Sacramento River for the irrigation
23
of approximately 6,450 acres in Yolo County. RGF holds an SRS Contract with Reclamation.
24
22.
Petitioner SOUTH SLITTER WATER DISTRICT(SSWD)is, and at all times
25
mentioned herein was, a governmental entity ofthe State of California formed in 1954 under
26
sections 341.50 and 34500 ofthe California Water Code. SSWD serves approximately 64,000
27
acres in Sutter and Placer Counties and holds appropriative water right licenses to develop, store,
28
and distribute surface water supplies from the Bear River. On February 14, 2000, SSWD entered 1492191A
g VERIFIED PfiTITION FOR WRIT OF MANDATE
1
into a llay-Delta Settlement Agreement with DWR for the purposes of complying with SWRCB
2 II Decision D-1641. 3
23.
4
times mentioned herein was, a governmental entity of the State of California formed in 1950
5
under sections 34150 and 34500 of the California Water Code. SEWD holds pre-1.914 rights and
6
appropriative water rights to divert water from the Feather River. SEWD is one offour "Joint
7
Districts" that entered into an Agreement with the State in California in 1969 to memorialize their
8
collective rights to divert water in specified quantities.
9
a a a Q z d as
Petitioner SUTTER EXTENSION WATER DISTRICT(SEWD)is, and at all
24.
Petitioner SUTTER MUTUAL WATER COMPANY(SMWC)is, and at all times
10
mentioned herein was, a California mutual water company organized and existing under the laws
11
ofthe State of California. SMWC holds appropriative water right licenses to divert from the
12
Sacramento River for the irrigation of approximately 50,100 acres in Sutter County. SMWC
13 ~ holds an SRS Contract with Reclamation. 14
25.
Petitioner TISDALE IRRIGATION AND DRAINAGE CO.(TIDC)is, and at all
15
times mentioned herein was, a business entity organized and existing under the laws of the State
w z
16
of California. TIDC holds appropriative water right licenses to divert water from the Sacramento
O p
17
River for the irrigation of approximately 2,100 acres in Sutter County. TIDC holds an SRS
18
Contract with Reclamation.
19
26.
Petitioner WINDSWEPT LAND AND LIVESTOCK COMPANY(WLLC)is, and
20
at all times mentioned herein was, a business entity organized and existing under the laws ofthe
zl
State of California. WLLC holds an appropriative water right license to divert water from the
22
Sacramento River for the irrigation of approximately 750 acres in Sutter County. WLLC holds an
23
SRS Contract with Reclamation.
24
27.
Petitioner BIGGS-WEST GRIDLEY WATER DISTRICT(BWGWD)is a water
25
district formed pursuant to the California Water District Law, (Wat. Code, §§ 34000 et seq.)
26
BWGWD is an agricultural water supplier serving approximately 31,300 irrigated acres within its
27
service area located in Butte and Sutter Counties in California. Additionally, BWGWD provides
28
irrigation water to approximately 3,700 acres in the California Department of Fish and Wildlife's 1492797.4
g
VERIFIED PETITION FOR WRIT OF MANDATE
1
(CDFW)Gray Lodge Wildlife Area. BWGWD holds pre-1914 appropriative water rights to
2
divert water from the Feather River, a tributary to the Sacramento River. BWGVVD is also one of
3
the four "3oint Districts" that entered into an Agreement with the State of California in 1969 to ,
4
memorialize their collective rights to divert water from the Feather River in specified quantities.
5
a a Q
28.
Respondent CALIFORNIA DEPARTMENT OF WATER RESOURCES(DWR)
6
is, and at all times mentioned herein was, a governmental agency and political subdivision of the
7
State of California, formed and existing under the California Water Code, with its principal place
8
of business in the County of Sacramento: DWR operates the State Water Project(SWP),subject
9
to permits issued to it by the SWRCB,specifically, SWRCB Water Right Permits 16478, 1.6479,
10
16481, and 16482. DWR's operation and management of the SWP is at all times subject to the
11
obligations and limitations of all applicable state, federal, and other laws, including CEQA and
12
the CEQA Guidelines. DWR is the lead agency under CEQA for the preparation of the EIR and
13
for approval of the Project. 29.
14
Does 1 through 50 are persons or entities unknown to Petitioners at this time who
x Aa
15
may be necessary parties to this suit. Petitioners are informed and believe, and based thereon
z
w
16
allege that each of the Does may have a legal interest in the outcome ofthese proceedings.
O Q
17
Petitioners will amend this Petition specifically to identify each such person or entity if and when
18
their identities become known.
19 The Wate~Fix Project
20 30.
21
The California WaterFix Project is one of the largest public works projects ever
22
proposed in California, rivaling the California Aqueduct and Shasta Dam,and, if constructed, it
23
would be the most expensive water-related project in the history of California. The proposed
24
Project contemplates the construction of three new intakes in the North Delta and two tunnels to
25
convey water from the Sacramento River directly to the south Delta for export. The three new
26
intakes would be built on the east side ofthe Sacramento River, in Sacramento County, between
27
Clarksburg and Courtland. Each intake facility would have the capacity to divert up to 3,000
28
cubic feet per second (cfs). Froin the intakes, water would flow into a single tunnel that would 1492191.4
1Q
VERIFIED PETITION FOR WRIT OF MANDATE
1
lead to an intermediate forebay on Glanville Tract. Water would flow out of the southern end of
2
the intermediate forebay into two forty-foot-in-diameter tunnels. The two tunnels would carry
3
water south approximately 44 miles to the Clifton Court Forebay in the south Delta. Using the
4
existing Harvey O. Banks and C.W."Bill" Jones Pumping Plants, water would then be exported
5
from the Delta for use in the Bay Area, the San Joaquin Valley, and Southern California.
6
31.
The Project will dramatically change how water flows through the Delta and how
7
DWR and Reclamation operate the SWP and CVP,respectively. By diverting up to a third of the
8
flow ofthe Sacramento River from massive new intakes in the North Delta, the Project will
9
substantially reduce flows of higher quality Sacramento River water into the Delta, substantially
10
degrading the quality of water in the Delta, and therefore, substantially changing how the SWP
11
and CVP are operated. This includes potential changes to the operations of upstream reservoirs
12
that could have a direct adverse effect on Petitioners' water supplies and other adverse
13
environmental impacts.
14
32.
The Project does not contemplate storage of water, and. it does not generate any
15
additional water supplies for either the SWP or the CVP. Rather, what the project will do is move
16
more water from some areas, thereby potentially reducing water supplies available to some users,
17
in order to allow the SWP and the CVP to deliver more water south-of-Delta. To date, DWR has
18
not committed to a specific operations plan or binding operational criteria for the Project.
19
EIR Process
20
33.
The Project was initially proposed in 2006 as the Bay Delta Conservation Plan
21
(BDCP). The BDCP envisioned updating the SWP and CVP by adding north Delta points of
22
diversion on the Sacramento River, and by providing for large-scale species conservation through
23
a 50-year habitat conservation. plan(HCP)and natural communities conservation plan(NCCP).
24
The HCP and NCCP were intended to ensure that the BDCP complied with the federal
25
Endangered Species Act(ESA)and California Endangered Species Act(CESA).
26
34.
In March 2008, DWR issued a Notice of Preparation(NOP)indicating that it was
27
initiating preparation of a joint environmental impact report/environmental impact statement
28
(EIR/EIS)for the BDCP that would "include analysis ofimproved water conveyance 1492791.A
VERIFIED PE7`ITION FOR WRIT OF MANDATE
1
infrastructure and other habitat conservation measures that will be developed to advance the goals
2
and objectives of the BDCP." DWR issued a Revised NOP on February 13, 2009, naming
3
Reclamation as the lead agency for the BDCP project under NEPA.
4
35.
In December 2013, DWR and Reclamation released a joint Draft EIR/EIS for the
5
BDCP pursuant to CEQA and NEPA. The Draft EIR/EIS evaluated 15 different alternatives,
6
including an alternative identified as the preferred project (Alternative 4). Initially, the Draft
7
EIRIEIS was set fora 120-day review period, but after significant public objection about the
8
length and complexity of the document, the review period was extended twice. DWR received
9
12,204 comment letters from interested parties, totaling 18,532 unique comments on the Draft
10
EIR/EIS. 36.
11 12
Petitioners submitted comments on the Draft EIR/EIS as part of the North State
Water Alliance(NSWA)on July 28, 2014.
a a a Q d a~
14
EIR/Supplemental Draft EIS (RDEIR/SDEIS)that maintained all ofthe original alternatives for
15
the BDCP,but made fundamental changes to the proposed Project. In response to comments on
w
16
the Draft EIR/EIS challenging the viability of providing long-term (50-year) assurances regarding
0
17
species viability, the RDEIRISDEIS modified the Project to eliminate the HCPfNCCP component
18
and analyzed three new diversion and conveyance alternatives—Alternatives 2D,4A, and 5A,
19
These new alternatives did not include the large-scale conservation efforts contained in the
20
HCPINCCP. Rather, they proposed to achieve ESA and CESA coverage through ESA Section 7
21
consultations, and an incidental take permit under Section 2081(b} ofthe CESA.
z 3 Q
13
37.
22
38.
In July 2015,DWR and Reclamation issued a Recirculated Draft
DWR proposed that one of these non-HCP alternatives, known as WaterFix
23
(Alternative 4A), be identified as the preferred alternative, thereby replacing the BDCP preferred
24
alternative {Alternative 4)that was presented in the Draft EIR/EIS. As presented in the
25
RDEIR/SDEIS, the Project retains the new water conveyance facilities with. three new diversion
26
points in the north Delta, the tunnel conveyance and ancillary facilities, operational elements,
27
limited habitat restoration in the form of mitigation for construction impacts, and other
28
environmental commitments purporting to address construction and operation-related impacts of 1492191A
12 VERIFIED PETITION FOR WRIT OF MANDATE
1 2
39.
The RDEIR/SDEIS was circulated for public review for 1.12 days.
3
40.
Public comments on the RDEIR/SDEIS included 21,700 comment letters, totaling
4
a a a Q
12,492 unique comments.
5
41.
On October 30, 2015, Petitioners submittedcomments on the RDEIR/SDEIS as
6
part of the NSWA.
7
42.
The Delta Independent Science Board (Science Board), a group ofindependent
8
professional scientists tasked with detailed review ofthe RDEIR/SDEIS for its scientific accuracy
9
and suitability (see Water Code § 85280), also commented on the RDEIR/SDEIS and objected to
10
its structure, organization., and content. The Science Board further objected that these
11
deficiencies caused the RDEIRISDEIS to fail as an informational document, such that it was
12
incapable of providing the public and decision makers with the ability to make an informed
13
decision.
14
43.
On December 22, 201 b,just days before the start of major religious and year-end
x
d
the new conveyance facilities.
holidays, DWR and Reclamation issued the document that DWR now refers to as the "Proposed
16
Final EIR/ETS"(Final EIR/EIS). The Final EIR/EIS maintained all 15 ofthe original project
17
alternatives along with RDEIRISDEIS Alternatives 2D,4A,and SA. Buried. in an appendix,
1$
rather than being presented in the main body ofthe Final EIR/EIS, DWR discussed the significant
19
new information that the Project's operations would be substantially different. than described in
20
Alternative 4A, operating instead between two new conditions identified as Boundaries 1 and 2.
21
Boundary 1 would represent an increase in total average annual exports of approximately L2
22
million. acre-feet(MAF)relative to the environmental. baseline selected by DWR,and Boundary 2
23
would represent a reduction in total average annual exports of approximately 1.1 MAF relative to
24
the baseline. These two operational scenarios represent a differential spread of approximately 2.3
25
MAF/year of average annual exports. In addition to this fundamental revision ofthe proposed
26
Project, the Final EIRiEIS presented extensive new material, including entirely rewritten impact
27
sections. The Final EIR/EIS did not contain summary descriptions of the changes that were made
28
to the RDEIR/SDEIS, nor did it include a redline version to identify where changes were made.
z
w
15 3 0 Q
1492191.4
13 VERIFIED PETITION FOR WRIT OF MANDATE
44.
The 30-day public comment period for the Final EIR/EIS ended on January 30,
2
2017. The only notice of this comment period was contained in a Federal Register notice that
3
was released on December 30, 2016, when Reclamation issued the Notice of Availability for the
4
Final EIRlEIS. That notice required reference to yet another federal register notice issued by the
5
U.S. Environmental Protection Agency to determine that a formal comment period on the EIR,
6
coinciding with the 30-day federal public comment period, was being provided. (Notice of Avail.
7
ofthe FEIRIEIS, BDCP/WaterFix, 81 Fed.Reg. 96485 (Dec. 30, 2016); see 81 Fed.Reg. 96451.)
8
That notice, which was issued by Reclamation, and not DWR,stated that "the end of the Federal
9
Register notice period is intended by DWR to close the period by which any person inay submit
10
to DWR any grounds for noncompliance with CEQA,consistent with CEQA Section 21177(a)."
11
(Notice of Avail. ofthe FEIRiEIS, BDCPIWaterFix, 81 Fed.Reg. 96485.)
12
45.
Notwithstanding the byzantine method of providing notice, Petitioners timely
a ~ Q z d ~
15
Among other criticisms, the Science Board concluded that that the Final EIR/EIS "resembles its
z
16
predecessors in failing to communicate clearly the principal findings and uncertainties of an
Q
17
enormous report."
18
47.
13
submitted comments on the Final EIR/EIS as part ofthe NSWA on January 30, 2017.
14
46.
On June 9, 2017, the Science Board issued its review ofthe Final EIR/EIS.
On June 21, 2017, Petitioners submitted additional comments on the Final
19
EIR/EIS, in the form of evidence that also addressed claims and evidence DWR offered in the
20
SWRCB Hearing for the water rights change petition for the Project.
21
48.
Collectively, Petitioners and other members ofthe public submitted comments
22
orally or in writing on the NOP, Draft EIR/EIS, RDEIR/SDEIS, and Final EIR/EIS that directly
23
raised all of the claims and issues in this Petition.
24
49.
On July 21, 2017, DWR adopted a 373-page CEQA Findings offact and a
25
Statement of Overriding Considerations (Findings), certified a Final EIR for the Project, and
26
approved the Project. The same day, DWR issued a 294-page document entitled "Developments
27
after Publication of the Proposed Final Environmental Impact Report," which is ambiguously
28
dated "July 2017"(July 2017 Developments Document). DWR's findings asserted in a footnote t492~4~.4
14
VERIFIED PETITION FOR WRIT OF
1
that the Final EIR/EIS released in December 2016 was in fact "a proposed Final EIR/EIS"
2
(emphasis in original), and that the true "Final EIR" certified by DWR included the December
3
2016 document, as well as the July 2017 Developments Document. This document purported to
4
address comments on the December 2016 Final EIR/EIS, and further changes to the Project that
5
had been developed by DWR since December 2016.
6 7
50.
Also on July 21, 2017, DWR filed a Notice of Determination(NOD)for the
Project, referring to it in the NOD as the "California WaterFix Final EIR/EIS." Related Approval Processes
9
51.
To carry out the Project as it is currently designed, DWR and Reclamation must
10
obtain the approval ofthe SWRCB to add new north Delta points of diversion and rediversion for
11
the SWP and CVP to DWR and Reclamation's existing water right permits. 1n October 2015,
12
despite the fact that environmental review of the Project was not complete, DWR and
13
Reclamation submitted a water rights change petition to the SWRCB requesting thaC change.
14
Over fifty parties, including cities, counties, urban and agricultural water suppliers, individuals,
~o
15
and environmental groups, submitted protests to the change petition on the Bounds that the
w
16
Project would injure 1ega1 users of water as well as the environment and public trust resources.
0 Q
17
Those parties, including Petitioners, are participating in a quasijudicial evidentiary hearing
18
before the SWRCB Hearing to determine whether the change petitions should be granted. The
19
SWRCB Hearing is still pending at the time of phis Petition's filing.
a a a Q
20
52.
Throughout the more than year-long first phase of the SWRCB Hearing, new
21
information about the Project, including significant impacts that were not disclosed in the Final
22
EIRIEIS, have been revealed, including impacts to water supply, water quality, agricultural
23
resources, and other environmental impacts. The second phase ofthe SWRCB Hearing, which
24
has not yet commenced, will focus on the environmental effects ofthe Project and further
25
scrutinize the analysis contained in the Final EIR/EIS.
26
53.
The Project will result in adverse impacts to terrestrial and aquatic species
27
protected under the State and federal endangered species acts. DWR and Reclamation applied to
28
the United States Fish and Wildlife Service(USFWS), National Marine Fisheries Services 1492191.4
15 VERIFIED PETITION FOR WRIT OF MANDA
a a a Q
(NMFS)and CDFW far authorization to "take" numerous protected species during construction
2
and operation ofthe Project. In July 2016, DWR and Reclamation submitted a Biological
3
Assessment(BA)reflecting their view ofthe Project's impacts on protected species. The BA
4
revealed new information about proposed. Project operations that was not disclosed in the
5
RDEIR/SDEIS. On June 16, 2017, NMFS issued a Biological Opinion(BiOp)for the Project that
6
was more than 1,200 pages long. On June 23, 2017, the USFWS issued a separate 547-page
7
BiOp. The BiOps identified additional impacts to protected species, and required Project
8
modifications designed to reduce impacts to fish, but those modifications would also substantially
9
increase other impacts of the Project as described in the RDEIR/SDEIS and Final EIR/EIS,
10
including impacts to water supply, traffic, and recreation. Notably, both BiOps reserved complete
11
analysis of certain aspects ofthe Project until a future consultation at an unspecified date. On
12
July 26, 201.7, after DWR certified the EIR and approved the Project, CDFW issued an Incidental
13
Take Permit under CESA, authorizing impacts to California-protected species associated with
14
construction and operation ofthe Project. The Incidental Take Permit includes numerous
IS
conditions on the construction and operation of the Project that themselves increase impacts to
16
water supply and the environment that were not fully described in the RDEIR/SDEIS or the Final.
17
EIR/EIS.
z
w
1
3
0 Q
54.
18
On July 21, 2017, the same day that it certiFied the EIR and approved the Project,
19
DWR approved resolutions authorizing the issuance of$11 billion in public bond financing for
20
the Project, and filed a validation complaint in Sacramento County Superior Court to validate the
21
bond resolutions under Code of Civil Procedure section 860. Issuance of bonds will result in
22
DWR incurring a massive financial obligation for the Project that will effectively prevent DWR
23
from meaningfully considering and adopting alternatives to the Project, including the No Project
24
alternative required by CEQA,should this Court find that the Project EIR was certified in
25
violation of CEQA.
26 27 28
55.
This Court has jurisdiction to review DWR's findings, approvals, and actions and
issue a writ of mandate and/or injunctive relief, as well as other relief sought herein, pursuant to 1492191.4
16 VERIFIED PETITION FOR WRIT OF MANDA
1
sections 1060, 1.085, and 1094.5 ofthe California Code of Civil Procedure, and sections 21168
2
and 21168.9 ofthe California Public Resources Code.
3
56.
Venue for this action properly lies in the Sacramento County Superior Court
4
pursuant to Code of Civil Procedure sections 393, 394, and 395 because DWR is a state agency,
5
DWR's principal offices are located in Sacramento, and DWR's actions and resultant impacts are
6
of statewide significance and scope such that Sacramento is the appropriate and most convenient
7
venue.
8
57.
Petitioners have complied with Public Resources Code section 21167.5 by prior
9 I service of a notice upon DWR,indicating their intent to file this Petition. Proof ofService ofthis 10
notification, with the notification, is attached hereto as Exhibit A.
11 12
58.
Petitioners have complied. with the requirements of Public Resources Code section
21.167.7 by concurrently sending a copy ofthis Petition to the California Attorney General.
a a Q ~
14
21167.6(a) by concurrently filing a Notice of Election to Prepare the Record of proceedings
~
15
relating to this action.
z 3 O Q.
16
13
59.
Petitioners have complied with the requirements ofPublic Resources Code section
STANDING
1'7
60.
As described above, Petitioners are beneficially interested in the subject matter of
18
this proceeding because the Project may adversely affect the availability of surface and
19
groundwater supplies that Petitioners rely on for irrigation and other uses. Furthermore, in order
20
to maintain and enhance their operations, Petitioners rely upon the health and survival ofthe
21
ecosystem and environmental resources within the area where Petitioners and their customers are
22
located, including fish, wildlife, and agricultural resources. Petitioners and their customers will
23
be directly injured by DWR's failure to comply with CEQA in connection with the Project, as
24
their operations will be impacted by significant environmental effects that have not been
25
adequately analyzed or disclosed.
26
61.
Further, Petitioners have standing in the public interest because this case involves
27
public rights and the enforcement of public duties. Specifically, DWR owed a mandatory duty to
28
comply with the procedural and substantive requirements of CEQA. Petitioners are not seeking 1492791.4
1 '~
VEWFIED PETITION FOR WRIT OF MANDATE
1
relief greater than or different from the relief sought for the general public. If successful, this
2
action would enforce the mandates of CEQA and thus enforce the public's right to adequate
3 II environmental review under that statute. 4
62.
By certifying an EIR that is not supported by substantial evidence and approving
5
the Project, even though it was not adequately analyzed under CEQA,DWR has placed the
6
Sacramento River ecosystem and Sacramento Valley communities, as we11 as the water resources
7
relied on by Petitioners, at a significant risk. Thus, Fetitioners have standing to assert the claims
8
raised in this Petition.
9 10
63.
This action is timely under Public Resources Code section 21.167 and Government
Code section 65009(c)(1), as the Petition. was brought within 30 days of DWR's NOD.
11
EXHAUSTION OF ADMINISTRATIVE REMEDIES
12
64.
Petitioners have performed all conditions precedent to this filing and have
a a Q ~
13
exhausted the available administrative remedies to the extent required bylaw. Petitioners
14
presented their specific objections to DWR's decisions through detailed written continents
~
15
submitted to DWR,either independently or as signatories, on the NOP,the 2014 Draft ETR/EIS,
~
16
the 2015 RDEIR/SDEIS, and the 2016 Final EIR/EIS, requesting compliance with CEQA,
3 Q
l~
including the completion of full and adequate environmental review. Petitioners actively
18
participated in administrative processes, including the ongoing SWRCB Hearing, that preceded
19
DWR's certification ofthe EIR and issuance ofthe NOD. All other requests of DWR,having
20
previously been made, would be futile.
21
65.
Petitioners have fully exhausted all administrative remedies in that the
22
determination by DWR is final and no further administrative appeal procedures are provided by
23
state or local law.
24
ATTORNEYS'FEES 66.
25
Petitioners are entitled to receive attorneys' fees from DWR pursuant to Code of
26
Civil Procedure section 1.021.5 because this action involves the enforcement ofimportant rights
27
affecting the public interest. This action will, among other things, confer a significant benefit on.
28 1492191.4
VERIFIED PETITION FOR WRIT OF
1
the general public and a large class of persons, and the necessity and burden of enforcement
2
against another public entity makes an award. of fees appropriate. 1' • '/ i
3 4
67.
5
Procedure sections 1085 and 1094.5, the Court reviews both DWR's interpretations oflaw and
6
the 1ega1 effects of any DWR findings on a de novo basis.
7
68.
Pursuant to Public Resources Code sections 21168 and 21168.5 and Code of Civil
8
Procedure sections 1085 and 1094.5, the Court reviews the administrative record to determine
9
whether DWR's findings on CEQA issues are supported by substantial evidence in light ofthe
10
whale record and whether DWR proceeded in the manner required by law.
~!~~~
11
12 a a a Q
Pursuant to Public Resources Code sections 21168 and 21168.5 and Code of Civil
69.
~
~
~
In its comment letters to DWR,Petitioners requested that certification of the EIR
13
and approval ofthe Project be deferred until the deficiencies ofthe EIR were addressed and
14
resolved, and until adequate Zniti~ation was developed. DWR declined to take such actions, and
15
instead certified the EIR and approved the Project.
w
16
3 O Q
17
70.
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.
18
71.
In light of DWR's violations of CEQA in certifying the EIR and approving the
19
Project, any action regarding the construction, funding, or operation. ofthe Project will irreparably
20
harm the environment, as described in this Petition, to the detriment of Petitioners and the
21
Sacramento Valley's businesses, residents, and water users. Petitioners lack an adequate remedy
22
at law for the irreparable harm that the Project activities will cause. Therefore, a stay or
23
preliminary or permanent injunction should issue in this case, restraining DWR from taking any
24
additional actions to issue permits, expend funds, or undertake any construction activities until
25
DWR has complied with CEQA.
26
72.
A stay or injunction ofDWR actions relating to the Project would not be against
27
the public interest because DWR is required by CEQA to conduct an adequate environmental
28
review ofthe Project before taking any actions to approve it, because construction and operation 1492191.4
VERIFIED PETITION FOR WRIT OF MANDATE
1
of the Project would likely have significant impacts on the environment, and because DWR will
2
not be harmed by a stay or injunction.
3
FIRST CAUSE OF ACTION
4
(Violation of CEQA—Inadequacy of EIR as Informational Document)
5
73.
Petitioners reallege and incorporate by reference each and every allegation set
6 II forth above. 7
74.
DWR failed to proceed in the manner required bylaw because the preparation,
8
circulation, and comment procedures associated with the EIR fundamentally undermined the
9
public's ability to meaningfully participate in the CEQA process. One "purpose of an
10
environmental impact report is to provide public agencies and the public in general with detailed
11
information about the effect which a proposed project is likely to have on the environment."
12
(Pub. Resources Code, § 21061.) The California Supreme Court has long declared that an
13
environmental impact report "protects not only the environment but also informed self-
14
government." (Citizens ofGoleta Talley v. Board ofSupervisoNs(1990)52 Cal.3d 553, 564
15
(quoting Laurel Heights Improvement Assn. v. Regents of university ofCalifornia (1988)
w
16
47 Ca1.3d 376, 392).) The EIR is an "environmental alarm bell" and must be intelligible and
O Q
17
inform the public and policy makers as to the potential impacts of a project; documents that are
18
"hypertechnical and confusing in their presentation may be incomprehensible to the very people
19
they are meant to inform." (San Franciscansfor Reasonable Growth v. City &County ofSan
20
FYancisco (1987) 193 Cal.App.3d 1544, 1548.) It is for this reason that CEQA requires that an
21
EIR be written in plain language, based on accessible data and comprehensible to the general
22
public. (See Pub. Resources Code, § 21003(b).) In preparing and circulating the EIR, DWR
23
violated these requirements.
z
a a a Q d
24
75.
The EIR is so poorly organized, loaded with jargon and vague language, lacking in
25
detail, and inconsistent in its analysis that it fails in its essential purpose as an informational
26
document. The EIR is difficult to navigate; impact chapters contain a drzzying number ofinternal
27
cross-references, and key information about the Project and alternatives is scattered in various
28
EIR appendices. DWR's decision to present a total of 18 alternatives in varying levels of detail, 149219LA
20 VERIFIED PETITION FOR WRIT OF MANDA
using different modeling approaches and multiple, shifting baselines among the alternatives, 2
obscures the fundamental differences among the alternatives. The Project was fundamentally
3
revised between the Draft EIR/EIS and RDEIR/SDEIS, and whole sections of the RDEIR/SDEIS
4
were rewritten when the Final EIRlEIS was issued, but the EIR ultimately approved by DWR did
5
not contain a complete redline or strikeout version to reveal how or where the description and
6
analyses changed between the various document drafts.
7
76.
Each iteration ofthe EIR has relied heavily on Ca1Sim II computer modeling
8
outputs purported to represent the Project's operations. This representation is wholly theoretical,
9
as no operating criteria for the Project have ever been defined. To compound the problem, the
10
modeling data offered to support DWR's conclusions in the EIR have been ever-changing, with
11
new modeling data released up to the very date that the Project was approved and the EIR
12
certified by DWR. As an informational and analytical tool, this modeling is woefully lacking
13
because, for example, it uses long-teen averages to analyze short tern impacts.
14
77.
Numerous commenters, including the Science Board, objected to the organization
15
and presentation of material in the RDEIR/SDEIS, which required reviewers to toggle back and
16
forth among multiple different extremely lengthy portions ofthe combined environmental
17
document with no coherent, cohesive presentation. The Science Board.found the RDEIR/SDEIS
18
"sufficiently incomplete and opaque to deter its evaluation and use by decision-makers, resource
19
managers, scientists and the broader public." The Science Board cited fundamental flaws in the
20
RDEIRISDEIS including, but not limited to,"overall incompleteness through deferral of content
21
to the Final EIR/EIS ...; specific incompleteness in treatment of adaptive management, habitat
22
restoration, levees and long-term effects; and inadequacies in presentation." As a result of these
23
overwhelming structural, organizational, and content flaws, the Science Board concluded that the
24
RD~IR/SDEIS "fails to adequately inform weighty decisions about public policy." This failure
25
to provide a cohesive analysis impeded public review and comment ofthe RDEIR/SDEIS,in
26
violation of CEQA's requirement that an EIR actually inform the public and decision makers.
27 28
78.
The Final EIR/EIS failed to resolve the RDEIR/SDEIS's fundamental flaws.
Instead ofproviding auser-friendly, understandable analysis ofthe potential effects ofthe 1492191.4
21 VERIFIED PETITION FOR WRIT OF MANDATE
1
Project, the Final EIR/EIS furthered. the unorganized, scattered, and unreadable nature of the
2
previous environmental documents issued for the Project. Combining over 30,000 pages ofthe
3
2014 initial draft with certain new material in the 2015 recirculated draft document and
4
unspecified additional new information into the Final EIR/EIS (for a cumulative total ofsnore
5
than 1.13,000 pages) effectively precluded informed self-government and meaningful public
6 i participation. The Final EIRIEIS contains approximately 7,200 pages more than the 7
RDEIR/SDEIS, and over 12,000 pages ofresponses to comments. The Final EIR/EIS explains
8
that it "contains the full contents ofthe revised Draft EIR/EIS and appropriate portions ofthe
9
RDEIR/SDEIS, with necessary corrections and updates." However, the Final EIR/EIS did not
10
disclose what exactly are the "appropriate portions" or "necessary corrections and updates,'" The
11
Final EIRJEIS does not include a summary or description of all changes, nor does the document
12
provide a redline of changes made in the Final EIR/EIS. As a result, the public was denied the
13
opportunity to understand the changes made in the Final EIR/EIS or how those changes affect the
14.
analysis of the potential impacts ofthe Project. The result is a document that buried the public in
~m
15
paper rather than providing readily understandable essential information about the Project's
z
16
significant environmental impacts relative to a reasonable range of alternatives. These problems
Q
17
prevented the public from understanding the proposed Project, let alone the Project's impacts on
18
the enviromnent. The Science Board thus complained that the Final EIR/EIS "resembles its
19
predecessors in failing to communicate clearly the principal findings and uncertainties of an
20
enormous report."
21
79.
a~ ~ Q ~
DWR inappropriately limited the public's ability to meaningfully participate in the
22
environmental review process by attempting to artificially impose a deadline on the opportunity
23
to comment on the Final EIRIEIS, setting a 30-day period by which "any person may submit to
24
DWR any grounds for noncompliance with CEQA," purportedly "consistent with CEQA Section
25
21177(a)." (See 81 .Fed. Reg. 964$6; Bay Delta Conservation Plan, Final EIRJEIS.} The
26
existence of the 30-day Final EIR/EIS comment period was disclosed only in the formal Federal
2?
Register notice required as part of Reclamation's responsibility to comply with NEPA for the EIS
28
portion of the document. However,in order to learn the date ofthat deadline, the public had to 1492191.4
22
VERIFIED PETITION FOR WRIT OF MANDATE
a a a Q
w O
Q
1
refer to yet another notice in the Federal Register posted by the U.S. Environmental Protection
2
Agency on December 27, 2016. (81 Fed. Reg. 96451.) That notice indicates that the review
3
period would end on January 30, 2017, less than six weeks after the Final EIR/EIS became
4
available to the public. DWR's decision to limit public comment on the Final EIRlEIS to a 30-
5
dayperiod that spanned three holidays, and bury the notice of that comment period within a
6
federal notice process, was unreasonable, arbitrary, and capricious in light ofthe fact that the
7
Final EIRIEIS is longer than the RDEIRISDEIS (for which a 16-week comment period was
8
provided), and contains substantial significant new information. Commenters were required to
9
undertake a lengthy, multi-step process simply to locate responses to their comments. The
10
complexity and. unwieldiness of the Project and the Final EIR/EIS demanded additional time for
11
public review and analysis in order for the document to attain CEQA's goals of informed self-
12
government, public participation, and transparency.
13
80.
In a move that compounded, rather than alleviated, these informational
14
deficiencies, the decisional documents released by DWR on July 21,2017 included an additional
15
294-page document purported to be part ofthe final EIR certified by the agency, entitled
16
"Developments after the Publication ofthe Proposed Final EIR/EIS." Rather than meaningfully
17
engage with the substantive and procedural issues raised by commenters, the July 2017
18
Developments Document adds another difficult-to-navigate index of comments, responses, and
19
post hoc rationalizations for DWR's findings. Among other failings, the document includes 22
20
pages of new modeling results not evaluated in prior iterations ofthe EIR, and derived from
21
operational criteria set by the CDFW Section 2081 permitting process and the 2017 BiOps.
22
81.
In these ways the EIR violates CEQA's requirement that data "be presented in a
23
manner calculated to adequately inform the public and decision makers, who inay not be
24
previously familiar with the details of the project." (Vineyard Area Citizensfor Responsible
25
Growth, Inc. v. City ofRancho Cordova (2007)40 Cal.4th 41.2, 442.) In preparing and
26
circulating draft and final EIR documents that failed to satisfy CEQA's informational mandate,
27
DWR prejudicially abused its discretion. For these reasons, among others, DWR failed to proceed
28 1492191 A
23 VERIFIED PETITION FOR WRIT OF MANDATE
1
in the manner required by law, and its decision to approve the Project was not supported by
2 II substantial evidence. t 'i
3 4
•,
(Violation of CEQA—Inadequate Project Description)
5 6
i,
82.
Petitioners reallege and incorporate by reference each and every allegation set
forth above.
7
83.
CEQA requires that an EIR include an accurate, stable and consistent description
8
ofthe proposed Project. (Cal. Code Regs., tit. 14, § 15124.)3 The Project description must
9
contain specific information about the project sufficient to allow a complete evaluation and
10
review ofits environmental impacts.
11
84.
The EIR is legally deficient because the Project description is not accurate, stable
12
or consistent, nor does it contain sufficient specific information about the Project to a11ow a
13
complete evaluation and review of its environmental impacts. The EIR Project description is not
d
14
accurate, stable, or consistent, for example, because the Project changed throughout the
as w 3
15
environmental. review process, and the EIR did not clearly describe the changes or evaluate the
16
new or substantially more severe significant impacts the Project changes would cause. Changes
17
between the project described in the Draft EIR/EIS and the proposed Project presented in the
18
RDEIR/SDEIS, and additional changes between the RDEIRISDETS proposed project and the
19
Project described in the Final EIR/EIS, with further changes introduced in the final certified EIR,
20
were sufficiently substantial as to invalidate the. EIR's impact analyses.
z
a, a a Q
0 Q
21
85.
For example, the ETR relies on the artificial concept of a "range" ofProject
22
operations, without ever identifying a particular, finite set of operating criteria that would allow
23
the public to identify and evaluate a particular Project or alternative. This range of potential
24
Project operations was substantially enlarged from the RDEIR/SDEIS to the Final EIR/EIS (from
25
the single operating scenario described in the RDEIR/SDEIS as Alternative 4A,to the vastly
26
broader range of operations presented. as the proposed project in the contemporaneous Project
27 28
3
California Code of Regulations, title l4, sections 15000 et seq. are herein referred to as the"CEQA Guidelines."
1492141.4
24 VERIFIED PETITION FOR WRIT OF MANDATE
water rights change petition proceeding), yet the EIR certified by DWR does not analyze the 2
potentially significant impacts associated with those changes. The Project description changed
3
substantially once again, six months after release ofthe proposed Final EIR/EIS, with issuance of
4
the BiOps in June 201.7 and the Incidental Take Permit in July 2017. Among the changes to the
5
Project description effected by the BiOps and Incidental Take Permit are new spring outflow
6
criteria, along with a provision that water to meet the new outflow criteria will be acquired. from
7
unidentified "willing sellers" or, failing that,"through operations ofthe CVP/SWP." The July
8
2017 Developments Document purports to include modeling that would address the requirements
9
of the BiOps and Incidental Take Permit, including increases to spring outflow. However, the
10
source or availability of water needed to meet the new spring outflow criteria are not defined,
11
making it impossible to assess the feasibility of the criteria (and thus whether the new outflow
12
criteria will be effective at lessening the Project's adverse effects on protected fish species), or the
a ~ Q Q
13
potentially significant environmental impacts associated with the potential change in use and
14
location of water needed to meet the new outflow criteria. DWR did not explain where the
~
15
replacement water would be obtained, or the mechanism for making such water available. The
z
16
BiOps also change the Project by reducing and restricting the use of barges to transport
Q
17
construction materials, which was a key component ofthe Project as it was described in the
18
RDEIR/SDEIS and proposed Final EIRJEIS, and which had been proposed to reduce the Project's
19
significant construction traffic impacts.
20
86.
To date, neither DWR nor Reclamation (nor any other Project proponent) has
21
provided an operations plan to show how the proposed new facilities will actually be operated.
22
Instead, the EIR's impact analysis relies upon Ca1Sim II model results generated from sets of
23
ever-shifting operating criteria, often artificially constrained or modified by DWR during the
24
model runs. DWR uses the modeling results to tell a story about the potential impacts without
25
defining project operations or corrunitting to the operational criteria utilized by the model
26
scenarios. The model scenarios are no substitute for an adequate project description.
27 28
87.
The Project description in the EIR also is impermissibly vague because it relies on
uncertainties of science and project permitting, included under the rubric of"adaptive 149219 L4
25 VERIFIED PETITION FOR WRIT OF MANDATE
management,'" instead of identifiable operational parameters. For example, the EIR does not 2
specify the quantity and timing of water to be diverted at the North Delta Diversion, the amount
3
of spring outflow needed to meet the needs of threatened and endangered fish species, the
4
quantity, timing or source of water for this additional outflow, or how the CVP and SWP would
5
be operated if the Project were to be approved.. Each ofthese operational aspects is essential to
6
understanding the Project's environmental effects. DWR's omission of this basic information
7
from the Project description made it impossible to draw meaningful conclusions about the
8
Project's effects on the environment, including potential impacts to water supplies and associated
9
land. uses in the Sacramento Valley, the northern Delta. or elsewhere.
10
a Q ~ x r~ z 3 Q
88.
By certifying an EIR that lacked an accurate, stable, and consistent project
11
description and that did not contain sufficient specific information about the Project to allow a
12
complete evaluation and review ofits enviromnental impacts, DWR prejudicially abused its
13
discretion. For these reasons, among others, DWR failed to proceed in the manner required by
14
law, and its decision to approve the Project was not supported by substantial evidence.
15
THIRD CAUSE OF ACTION
16
(Tmproper Incorporation of Mitigation Measures in the Project T)escription)
17
89.
18
Petitioners reallege and incorporate by reference each and every allegation set
forth above.
19
90.
DWR violated CEQA by improperly incorporating many necessary mitigation
20
measures into its project description, characterizing them as "environmental commitments," and
21
relying on this tactic to conclude potentially significant Project impacts would be less than
22
significant or otherwise reduced without analyzing as~d disclosing the fu11 scope ofProject
23
impacts. This constitutes a failure to proceed in the manner required by law. (Lotus v, Califorszia
24
Department ofTransportation (2014)223 Ca1.App.4th 94.)
25
91.
The "enviromnental commitments" are designed to reduce or eliminate numerous
26
project impacts, including significant impacts to air quality, water quality, fish and aquatic
27
resources, public health, and a host of other impact areas; thus DWR was required to treat them as
28
mitigation measures. Contrary to the EIR's assertions, many ofthe "environmental 1492}91A
'~~
VERIFIED PETITION FOR WRIT OF MANDATE
commitments" are not "standard","already compulsory" or "proven methods" to avoid or reduce 2
environmental impacts, but instead are vague and untested measures whose feasibility and
3
effectiveness cannot be determined. Many ofthe "environmental commitments" require the
4
future development of mitigation plans that involve the exercise of substantial discretion by the
5
Project proponents themselves during implementation; as such they are not similar to compliance
6
with adopted standards such as building codes, which have been vetted through the code adoption
7
process or other regulatory processes. Moreover, the commitments themselves are inadequate as
8
mitigation because they are fraught with uncertainties and off-ramps that would allow far no or
9
undefined mitigation to occur, or have the potential to result in new significant effects that are not
10
analyzed in the EIR but subject to possible future environmental review. Further, characterizing
11
these measures as "commitments" is inaccurate and misleading because not only are they nat set
12
forth in the project description, but the EIR makes no firm requirement that they be implemented.
a a Q ~
14
claimed to be factored into the impact analysis. Despite their apparently critical role in reducing
~
15
the Project's impacts, the "environmental commitments" are not even described in the EIR itself
z
16
or evaluated as part ofthe impact analyses, but are relegated to one ofthe many appendices.
17
Whether characterized as part ofthe project description or mitigation, burying the "environmental
18
commitments" in an appendix subverts CEQA's informational. mandate by denying the public the
19
opportunity to review and understand them in the context ofthe EIR analysis. Merely assuming
20
their implementation will reduce impacts, without any analysis or evidence to support those
21
assumptions, prevented the public from understanding the full scope ofthe impact of the
22
proposed actions or commenting on the effectiveness ofthe "environmental commitments" as
23
mitigation.
24
93.
13
92.
There is hardly a resource area for which "environmental commitments" were not
3 ~
The EIR's "environmental commitments" are plainly mitigation measures. CEQA
25
requires that mitigation measures be separately identified and analyzed. The EIR's failure to
26
discuss the significance of Project impacts apart from these de facto mitigation measures is a fatal
27
structural deficiency in the EIR that resulted in a failure to disclose the fu11 scope of Project
28
impacts and to consider whether other possible mitigation measures would be more effective. By 1492191.4
2'~
VERIFIED PETITION FOR WRIT OF MANDATE
1
omitting material necessary to informed decision-making and public participation, DWR failed to
2
proceed in the mariner required bylaw, and its decision to approve the Project was not supported
3
by substantial evidence.
4 5
(Violation of ~EQA—Inadequate Analysis of Water Supply Impacts)
6 7
94. forth above.
8 9
a, a a Q d
Petitioners reallege and incorporate by reference each and every allegation set
95.
An EIR must describe the physical setting of a project, including the physical
environmental conditions, viewed from. a local and regional perspective. (CEQA Guidelines, §§
10
15125, 15126.2; see also Neighborsfor Smart Rail v. Exposition MetYo Line Constr. Auth.(2013)
11
57 Cal. 4th 439.) The EIR's baseline description of water supply conditions fails to comply with
12
CEQA in that it does not describe the physical environmental conditions pertinent to water supply
13
with sufficient detail or accuracy to allow the Project's significant impacts to be considered in
14
their full environmental context. (CEQA Guidelines, § 15125(a)(c).)
15
96.
The EIR baseline description of water supply conditions also fails to comply with
w
16
CEQA because the manner in which the baseline was assessed and established was inaccurate.
3 0
17
DWR's errors and omissions with regard to establishing the baseline conditions resulted in the
18
lack of substantial evidence to support the baseline and impact analyses that relied on that
19
baseline. The EIR relies heavily on hydrologic modeling that purports to depict the WaterFix's
20
potential operations and impacts. However,DWR artificially constrained the model's operational
21
criteria, effectively pre-determining the results of the model. For example, although the North
22
Delta Diversion proposed for the Project would provide increased ability to convey water from
23
upstream reservoirs, the export estimates applied by DWR to calculate water allocations to south-
24
of-Delta SWP/CVP water users with the Project in place are artificially and unrealistically limited
25
to the same values set in the modeling for the No Action Alternative. Because of this constraint
26
in the modeling, the resulting modeling outputs reflect higher water levels in north-of-Delta
27
SWP/CVP reservoirs than is realistic, given the availability of new export capacity as a result of
28
the Project. This approach, among other flaws in the modeling, fundamentally masks the
z Q
1492191.4
VERIFIED PETITION FOR WRIT OF MANDATE
1
reasonably foreseeable impacts ofthe Project.
2
97.
The modeling that the EIR relies upon utilizes operational criteria that are
3
inconsistent with the Project description and do not accurately depict what the Project's actual
4
operations will be in the real world, and therefore the impacts analysis flowing from this
5
modeling is fundamentally flawed. For example, the modeling fails to utilize the additional
6
conveyance capacity that the Project facilities would add and includes artificial limits on the use
7
ofthe tumlels to convey water through the Delta. When realistic and reasonably foreseeable
8
operating criteria are used in the hydrologic modeling, the modeling results reveal significant
9
impacts to reservoir storage, river flows, water deliveries, Delta hydrodynamics, and Delta water
10
quality.
11
98.
The modeling also fails to describe baseline physical conditions sufficient to
12
evaluate water supply impacts, and therefore fails to adequately depict Project impacts because,
13
for example:(1)base modeling assumptions do not include Fall X2 requirements;(2)the EIR
a a Q z d G4
14
inappropriately relies on assumptions about future conditions, including regulatory conditions, in
15
its description of the baseline;(3)the EIR contains insufficient information regarding the physical
z
16
conditions at the Project site, and. relies inappropriately on future studies to be performed and
Q
17
future analysis to be obtained. Furthermore, the EIR acknowledges that the modeling does not
18
accurately farecast water supply impacts for dry year conditions, and so the analysis ofimpacts in
19
such years is unsupported.
20
99.
The flaws in the EIR modeling and the underlying assumptions on which that
21
modeling is based render the impact analyses and determinations based on that modeling
z2
inadequate as a matter of law.
23
100.
The EIR's water supply analysis is also inadequate because it fails to evaluate and
24
mitigate potentially significant impacts to water supply for water users who rely on upstream
25
supplies and water stored in Shasta, Oroville and Folsom reservoirs. Changes in the amount of
26
water delivered to a location constitute physical changes to the environment. (See also Pub.
27
Resources Code, § 21060.5 ["`Environment' means the physical conditions which exist within the
28
area which will be affected by a proposed project, including land, air, water ..."].) Petitioners 1492191.4
~~
VERIFIED PETITION FOR WRIT OF MANDATE
1
submitted substantial evidence demonstrating that the Project will cause physical changes to
2
water supply conditions, including changes in Delta outflow and SWP/CVP upstream reservoir
3
storage, that would affect the amount and availability of water supplies for water users north of
4
the Delta, and DWR was required to analyze the significance ofthe environmental impacts
5
associated with those changes. Yet the EIR mistakenly asserted that such physical changes are
6
"are not considered as water supply effects or impacts," and. did not evaluate their environmental
7
impacts. Nowhere in the EIR does DWR analyze the significance ofthe impacts to water
8
supplies that is disclosed by the modeling results upon which the impact analysis relies. 101.
9
Biological opinions issued by USFWS and NMFS and the Incidental Take Permit
10
issued by CDFW change the potential operating parameters of the Project in ways that have not
11
been analyzed by the EIR. For example, new spring outflow criteria were disclosed in the NMFS
12
BiOp issued on June 16, 2017 and the impacts of those new criteria were not adequately analyzed
a a Q ~
13
or disclosed in the EIR. Additionally, under the terms of the Section 2081 incidental take permit
14
issued by CDFW in July 201.7, mitigation of Project impacts to fisheries is to be achieved through
~
15
outflow requirements that would be accomplished through operation of the CVP and water
z
16
transfers from "willing sellers of water." This mitigation is both unenforceable and speculative,
Q
17
and the potential changes in operations associated with these terms were not analyzed in the EIR. 1 Q2.
18
Mitigation measures must include specific standards to be met and future actions
19
to be accomplished. (See Madera Oversight Coalition, bic. v. County ofMadera(2011) 199
20
Cal.App.4th 48.) By relying on adaptive management and the promise of future enviromnental
21
compliance processes to assert that no impacts will result, the EIR improperly defers mitigation
22
and analysis to a future date. For example, the EIR improperly relies on future permitting teens
23
to mitigate for the potential impacts ofthe Project, despite the fact that the Project's proponents
24
have not identified any such terms or conditions, or any criteria by which that mitigation could be
zs
evaluated.
26
103.
Moreover, DWR's findings regarding Project impacts rely on the unsupported
27
conclusion that water supply impacts —including those that would. occur under the much. broader
28
range of potential operations disclosed only late in the environmental review process (between 149219 L4
3
VERIFIED PETITION FOR WWT OF MANDATE
1
Boundary 1 and Boundary 2}—fall within the "range" of alternatives analyzed in the EIR°s
2
modeling. However,the potential Project impacts to upstream reservoir operations and water
3
supply cannot be understood by general reference to 18 different EIR alternatives, as well as two
4
much broader "boundary conditions," and multiple iterations of hydrologic modeling performed
5
for the EIR and entirely separate permitting processes. The Project impacts could only be
6
meaningfully evaluated through a distinct evaluation of each alternative, including impacts of
7
Boundary 1 and Boundary 2, separately from those of Alternative 4A. Because it does not
8
include this analysis, the EIR does not disclose the full range ofimpacts ofthe Project to
9
upstream water supplies in a manner calculated to inform the public and decision makers. 104.
10
A lead agency has an obligation to "use its best efforts to find out and disclose all
11
that it reasonably can" about future conditions. (Planning aizd Conservation League v. Castaic
12
fake Water Agency(2009) 180 Cal. App.4th 210, 242; CEQA Guidelines, § 15144.) The EIR
a a Q Q
13
fails entirely to analyze the water supply impacts of the Project's operations under reasonably
14
foreseeable future conditions, including prolonged drought conditions, despite substantial
~
15
evidence in the record that made such an analysis feasible.
z
16
Q
17
conditions, fails to adequately evaluate and disclose Project impacts, and fails to include
18
mitigation that is clear, effective, and enforceable. This omission ofinformation and analysis
19
constitutes a failure to proceed in the manner required bylaw. Therefore, DWR committed. a
20
prejudicial abuse of discretion by certifying the EIR and approving the Project, and its decision to
21
approve the Project was not supported by substantial. evidence.
105.
With respect to water supply impacts, the EIR fails to properly document baseline
22
FIFTH CAUSE OF ACTION
23
(Violation of CEQA—Inadequate Analysis of Biological Impacts)
24
106.
25
forth above.
26
107.
Petitioners reallege and incorporate by reference each and every allegation set
The EIR fails to adequately analyze, disclose, and mitigate for biological impacts.
27
In particular, for example, DWR has failed to comply with CEQA by asserting that it may
28
identify the impacts of the operations of these proposed facilities, and mitigate them at some point 1492191.4
31 VERIFIED PETI770N FOR WRIT OF MANDATE
in the future, despite the fact that the EIR is presented as an analysis ofthe project-level approval 2
to construct the Project.
3
108.
An EIR must describe the physical setting of a project, including the physical
4
environmental conditions, viewed from a local and regional perspective. (CEQA Guidelines, §§
5
15125, 15126.2; see also Neighbo~s,for Smart Rail v. Exposition Metra sine Constr. Auth.(2013)
6
57 Ca1.4th 439.) The EIR's baseline description of biological conditions fails to comply with
7
CEQA in that it does not describe the physical environmental conditions pertinent to biological
8
resources with sufficient detail to allow the Project's significant impacts to be considered in their
9
full environmental context. (CEQA Guidelines, § 15125(a)(c).)
10
109.
The EIR's baseline description ofbiological conditions also fails to comply with
11
CEQA because the manner in which the baseline was assessed and established was inadequate.
12
Given the immense size, scale, and geographic scope ofthe Project and its impacts, additional
13
observation and analysis was necessary to properly document baseline conditions. DWR's
14
omissions with regard to establishing the baseline biological conditions resulted in a lack of
~
15
substantial evidence to support the baseline and impact analyses that relied on that baseline.
~
16
Q
17
agency identifies all. potentially significant impacts of a proposed project, adequately discloses
18
those impacts to the public, and conditions approval ofthe project on implementation of feasible
19
alternatives or mitigation measures that avoid or substantially lessen those impacts. (Pub,
20
Resources Code, §§ 21002, 21100; CEQA Guidelines, §§ 15126.6, 15370.) It is improper for an
21
EIR to defer its analysis or the formulation of mitigation measures until after certification of an
22
EIR and approval ofthe project, and those mitigation measures must be enforceable.
a ~ Q
110.
23
111.
CEQA and its informational requirements are designed to ensure that the lead
Problems and uncertainties in the Project elements and technica] analyses
24
concerning salmonids and pelagic fish demonstrate that WaterFix will not meet the biological
25
needs of covered salmonid and pelagic fish species and is more likely to harm these species than
26
contribute to their recovery. As a result, the EIR improperly concludes that Project impacts to
27
fish species would be less than significant.
28
112. I49219t.4
The EIR improperly defers analysis ofimpacts of the proposed intakes, and 32 VERIFIED PETITION FOR WRIT OF MANDATE
1
includes mitigation measures related to fisheries and biological resources that are not feasible.
2
For example, the EIR asserts that the final design ofthe intakes and their fish screens have not yet
3
been developed and will be developed based on a series of future studies DWR promised to
4
conduct. The EIR's failure to provide sufficient evidence about fish screens prevented the public
5
from assessing their effectiveness and the EIR failed to adequately disclose and analyze the
6
impacts that these structures may have on the environment. Elsewhere, such as in determinations
7
regarding Delta outflow for longfin smelt, the EIR defers development of key mitigation
8
measures to some future date
9
113.
When specific mitigation measures are identified in the EIR,they are often
10
unenforceable. For example, pursuant to DWR's Mitigation Monitoring and Reporting Program
11
(MMRP), mitigation measure AQUA-22d, implementation of any necessary spring outflow
12
criteria will. occur through coordinated operations ofthe CVP and SWP. DWR is responsible for
a, a Q Z
13
implementing this mitigation measure under the MMRP;however, DWR lacks the requisite
14
authority to compel CVP operations. Reclamation, the agency responsible for CAP operations,
~
15
has made no such commitment.
z
16
~
17
conditions, fails to adequately evaluate and disclose Project impacts, and fails to include
18
mitigation that is clear, effective, and enforceable. This omission ofinformation and analysis
19
constitutes a failure to proceed in the manner required bylaw. In this way, DWR committed a
20
prejudicial abuse of discretion by certifying the EIR and approving the Project, and its decision to
21
approve the Project was not supported by substantial evidence.
11.4.
With respect to biological impacts, the EIR fails to properly document baseline
22
SIXTH CAUSE OF ACTION
23
(Violation of CEQA—Failure to Recirculate)
24
115.
25
forth above.
26
116.
Petitioners reallege and incorporate by reference each and every allegation set
CEQA requires that if significant new information is added to an EIR after notice
27
of public review is given but before final certification ofthe EIR, the lead agency must issue a
28
new notice and recirculate the revised draft EIR for public comment and public agency ~49~~9~.4
33 VERIFIED PETIT70N FOR WRIT OF MANDATE
1
consultation. (CEQA Guidelines, §15088.5(a).) New information that triggers the recirculation
2
requirement may include changes in the project as well as evidence of a new, or substantially
3
more severe, significant impact. (Ibid.) Recirculation is also required when the draft EIR was
4
"so fundamentally and basically inadequate and conclusory in nature" that public comment on the
5
draft EIR was essentially meaningless. (Ibid.)
6
a a
117.
The EIR and parallel regulatory processes (including consultations and permitting
7
under the federal and state Endangered Species Acts, and evidence submitted in the SWRCB
8
Hearing), revealed new significant environmental impacts and substantial increases to the severity
9
of previously identified significant impacts that the Project will cause. For example, the July
10
2017 Developments Document purported. to address comments on the December 2016
ll
"proposed" Final EIR/EIS and the myriad of changes to the Project that had occurred since
12
December 2016. That document, however, was no more than a post hoc rationalization for
13
DWR's approval ofthe Project that it made the same day, In that document, DWR inaccurately
Q d a~
14
characterized the many substantial changes to the Project as "minor" and dismissed, without
15
supporting evidence or analysis, the potential significant impacts those changes would cause
w Z
16
based. on the conclusory assertion that the new impacts would not be "substantial" in light of the
O Q
17
Project's already massive impacts. 118.
18
Examples of significant new information that triggered the requirement of
19
recirculation of the EIR include the fact that the scope of the Project's operations changed
20
between the RDEIR/SDEIS and Final EIR/EIS, increasing from the Alternative 4A scenario to
21
now operating between Boundaries 1 and 2. The boundary scenarios represent a significantly
22
different range of operations than the preferred alternative identified in the RDEIR/SDEIS
23
(Alternative 4A): Boundary 1 would represent an increase in total average annual exports of
24
approximately 1.2 MAF relative to the environmental baseline selected by DWR,and Boundary 2
25
would represent a reduction in total average annual exports of approximately 1.1 MAF relative to
26
the baseline, representing a differential spread of approximately 2.3 MAF/year on average. The
27
Final EIRIEIS did not explain or analyze impacts of the Project as DWR now states it will operate
28
(i.e., under much wider range of operations than considered in the Draft EIR/EIS or 7492191.4
34 VERIFIED PETITION FOR WRIT OF MANDATE
1
RDEIR/SDEIS). Evidence provided. to DWR in comments on the Final EIR/EIS and in the
2
SWRCB Hearing revealed the potential for new and substantially more severe Project impacts to
3
upstream reservoir operations and water supply. Those impacts cannot be understood without a
4
distinct evaluation of each alternative, including impacts of Boundary 1 and Boundary 2 separate
5
from those of Alternative 4A.
6
119.
The June 2017 biological opinions issued by USFWS and NMFS,and a draft
7
incidental take permit from CDFW contained additional signifeant new information triggering
8
the requirement of recirculation, because their requirements changed the Project description in
9
ways that were not analyzed by the EIR. For example, the NMFS BiOp contained new spring
10
outflow criteria, which were not disclosed or evaluated in the RDEIR/SDEIS. Because the BiOps
11
and incidental take permit are fundamental components ofthe Project's operations, and serve as
12
parameters for those operations which have the potential to result in new significant impacts
13
(including impacts to water supply and agriculture due to increased reservoir releases and/or
d
14
decreased water deliveries), DWR was required to evaluate this new information (and the
as
15
different and new impacts revealed by it) in a recirculated draft EIR.
w
16
O Q
17
RDEIR/SDEIS, Final EIR/EIS, and the EIR that was ultimately certified by DWR. Each
18
document presented extensive new material, and including new versions ofthe Project and
19
entirely rewritten impact sections (with no indication of where changes occurred from the Draft
20
EIR/EIS or RDEIR{SDEIS),thus requiring the public to re-read entire impact sections ofthe
21
document, many of which run into the thousands of pages. For example, the revised water quality
22
impact chapter alone was 1,157 pages long, not including figures which are located in a separate
23
file. As with the Draft EIRIEIS and RDEIR/SDEIS,the size, structure, and manner of presenting
24
information in the Final EIR/EIS inhibited review and informed public participation, and the too-
25
short review period denied Petitioners and the public a meaningful opportunity to identify and
26
evaluate the new information contained in the Final EIR/EIS and the validity ofthe conclusions
27
DWR drew from it. The magnitude of the Project changes from the RDEIR/SDEIS, and the
a a a Q
120.
Recirculation was also required due to the fundamental inadequacy of both the
28 1492197A
35 VERIFIED PET1T10N FOR WRIT OF MANDATE
',
deficiencies in the presentation of material, necessitated recirculation for an additional, 2
appropriate public review.
3
121.
Despite the changes incorporated into the Project after release ofthe
4
RDEIR/SDEIS,the extensive unidentified revisions and additions to the Final EIR/EIS, the
5
additional new information introduced in the form of the July 2017 Developments Document, and
6
substantial evidence that the Project will result in new or substantially more severe significant
7
impacts Chat were not evaluated, disclosed or mitigated in the EIR, DWR failed to recirculate the
8
EIR or any portion of the EIR as required by CEQA. As a result of DWR's failure to recirculate
9
the EIR, Petitioners, the public and other public agencies were deprived of a meaningful
10
opportunity to review and comment on the approved Project and its substantial adverse
11
environmental. consequences. By failing to amend and recirculate the EIR, DWR failed to
12
proceed in the manner required by law, and its decision to approve the Project was not supported
13
by substantial evidence.
a a Q z
14
~
15
~
16
122.
Q
17
forth above.
18
123.
i
~'
(Vialation of CEQA —Inadequate Alternatives Analysis) Petitioners reallege and incorporate by reference each and every allegation set
An EIR must describe a reasonable range of alternatives to the project, or to its
19
location, that could feasibly attain most of the project's basic objectives while reducing or
20
avoiding any ofits significant impacts. (CEQA Guidelines, § 15126.6,(a),(~.) An EIR also
2l
must evaluate the comparative merits ofthe alternatives. (fbzd.) The WaterFix EIR failed to
Zz
address a reasonable range of alternatives to the Project as it was revised and presented in the
23
RDEIR/SDEIS. In addition, Final EIR/EIS, and the EIR ultimately certified by DWR each lack a
24
clear and meaningful evaluation ofthe comparative merits ofthe alternatives. 124.
25
The Project was fundamentally changed between the Draft EIR/EIS and
26
RDEIR/SDEIS,to remove the habitat enhancement and species protection components. These
27
major changes to the Project altered its purpose and also represented wholesale changes in the
28
assumptions underlying the Draft EIR/EIS modeling and mitigation. DWR's decision to jettison 1492191.4
3
VERIFIED PETITION FOR WRIT OF MANDATE
a a a Q
the HCP component ofthe Project made all ofthe Draft EIR/EIS alternatives invalid, as each of
2
those was predicated on the assumption that they would function as a HCPfNCCP. Due to the
3
scope of the changes, the WaterFix as proposed in the RDEIR/SDEIS —Alternative 4A —
4
constituted an entirely new project, and DWR was required to analyze a reasonable range of
5
alternatives to the new Project as part of the revised analyses necessary to satisfy CEQA. Yet the
6
RDEIR/SDEIS evaluated only two alternatives to the Project —Alternatives 2D and SA.
7
Alternative SA was not a reasonable alternative because it was plainly infeasible. It proposed
8
diversion of up to 15,000 cfs, an almost ?5 percent increase over historic water deliveries that
9
could never occur under existing and reasonably foreseeable environmental regulations. In
10
addition, it was not capable of avoiding or substantially lessening any ofthe significant effects of
11
the proposed Altenlative 4A. Other than the required No Action Alternative, that left only one
12
alternative, Alternative 2D, which proposed to increase the number of diversion intakes from
13
three to eve. Alternative 2D also was not a reasonable alternative because it would have greater
14
impacts than the proposed Project. Because the only two alternatives to the new preferred Project
15
included in the EIR would not avoid or substantially lessen any of the proposed Project's
16
significant impacts, or were not practical or feasible from a technical, economic, or common
17
sense perspective, the EIR failed. to satisfy CEQA's requirements that an EIR analyze a
1$
reasonable range of alternatives.
z
w
1
0
Q
19
125.
By presenting all alternatives with no clear, cohesive summary ofthe major
20
impacts and relative merits ofthe alternatives, the EIR also failed to evaluate the comparative
21
merits of the alternatives in a manner that was reasonably calculated to inform the public In this
22
way,too, the EIR's discussion of alternatives was inadequate and DWR thus failed to proceed in
23
the manner required by law when it certified the EIR and approved the Project. Moreover,
24
DWR's findings with regard to the Project alternatives were not supported by substantial
25
evidence.
26 27 28 7442197.4
37 VERIFIED PETITION FOR WRIT OF MANDATE
1
EIGHTH CAUSE OF ACTION
2
(Violation of CEQA—Inadequate Analysis and Mitigation of Cumulative Impacts)
3
126.
Petitioners reallege and incorporate by reference each and every allegation set
4 I forth above. 5
127.
CEQA requires lead agencies to answer two questions to determine whether a
6
project will. have cumulative impacts. First, the agency must determine whether the effects of the
7
proposed project, in combination with other projects, would be cumulatively considerable. If so,
8
the agency must then evaluate whether the project's incremental contribution is cumulatively
9
considerable. (Communitiesfor a Better Envil^onment v. California Resou~^ees Agency(2002) 103
10
Ca1.App.4th 98, 120, disapproved on other grounds in Berkeley Hillside Preservation v. City of
11
Berkeley (2015)60 Cal.4th 1086, 1109 fn. 3.) When the project's incremental effect is
12
cumulatively considerable, the EIR must discuss the project's cumulative impacts. (Saga
13
F'ranciseo Baykeeper v. State Lands Comm'n (2015)242 Ca1.App.4th 202, 222.)
i
14
•
128.
The EIR's cumulative impacts analysis is inadequate because, far example,
15
existing and reasonably foreseeable potential future projects or existing projects and changes to
16
operations were not included in the evaluation. The projects determined by DWR to be a part of
17
the Cumulative Impact Analysis are discussed in some chapters, but absent from the analysis in
18
others. These projects or anticipated changes in operations are inherently intertwined because of
19
their connectivity with the CVP and SWP water conveyance systems. In particular, for example,
20
significant omissions exist for failure to identify or sufficiently evaluate the change in plans for
21
operations under the NMFS and USFWS 2017 BiOps; the July 2017 CDFW Incidental Take
22
Permit; and the implementation of California EeoRestore. 129.
23
The EIR's cumulative impacts analysis is also lacking in significant details
24
required to evaluate the impacts of the Project. Specifically, for example, the EIR's cumulative
25
impacts analysis states that the Project could lead to "changes in instream flow or water quality
26
conditions" without providing adequate details on the damage that might cause the Bay/Delta
27
estuary or to the significant impacts that those changes would impose an water supply. Similarly
28
in another example, the EIR does not include the SWRCB's Update ofthe Bay-Delta Water 1492191.4
VERIFIED PETITION FOR WRIT OF MANDATE
1
Quality Control Plan in its cumulative impacts analysis and instead baldly states that the update
2
"does not affect any water quality impacts addressed in the Final EIRIEIS." In fact, the EIR's
3
cumulative impacts analysis does not address the Project's cumulative impacts on water supplies;
4
rather, it refers the reader back to the impact analyses elsewhere in the document for an analysis
5
of the effects of changes to SWP/CVP export or deliveries, such as the need to develop future
6
water supplies. That cursory analysis does not, however, describe what the changes and their enviromnental impacts might be, or the full consequences of those impacts. No portion ofthe
8
EIR includes any evaluation of whether the Project's incremental contribution to water supply
9
impacts is cumulatively considerable. The EIR makes no attempt to fill in the missing analyses.
10
130.
Specifically, for example, the EIR does not contain the required analysis to
11
evaluate whether t11e Project's incremental contribution to water supply impacts is cumulatively
12
considerable. Credible expert evidence offered by commenters, based on the EIR's own data,
a a
13
quantified the potential cumulative impacts to water supply, distinct from the changes to water
z
14
supply conditions anticipated to occur as a result of climate change, sea level rise, and increased
~
15
demand north-of-Delta. Rather than perform the required analysis, the EIR dismisses these
z 3 Q
16
cumulative impacts, instead attributing them entirely to sea level rise, climate change, and
17
increased north of Delta demands. The EIR's own data contradict that position, and show that, in
l8
the driest range of years when effects would be most severe, Project-related effects on Folsom
19
Reservoir, for example, will be at least as large as those caused by all other non-Project factors
20
together.
21
131.
Other flaws in the EIR's analysis ofthe Project's cumulative impacts include, but
22
are not limited to, an assessment of cumulative impacts to biological resources that is based on
23
faulty and unreasonable assumptions, and unproven mitigation measures. The best available
24
scientific information indicates that the WaterFix Alternative 4A would contribute considerably
25
to significant cumulative adverse impacts to biological resources, but the EIR fails to address or
26
evaluate those impacts. Specifically, for example, cumulative adverse impacts on salmonids
27
caused by impingement, predation, and reduced flows in migration habitats, among others, will be
28
considerable, but are not addressed in the cumulative impacts analysis. While acknowledging 1492191.4
39 VERIFIED PETITION FOR WRIT OF MANDATE
l
that adverse impacts to salmon would occur as a result ofimplementation of Alternative 4A,the
2
EIR is almost totally reliant on unproven and undefined measures to mitigate those impacts
3
through the future use of predator control and nonphysical barriers. The presumed success of
4
those mitigation measures is inappropriate and not plausible, in particular, because the EIR has
5
provided no credible evidence to support the effectiveness of those measures.
6
132.
The EIR fails to analyze the Project's incremental contribution to impacts on water
7
supply, biological resources, and agricultural resources, among others, and fails further to
8
determine whether that impact is cumulatively considerable. The EIR improperly dismisses
9
potentially cumulative impacts as attributable to non-Project factors, without justification or
10
analysis. Under both CEQA and NEPA,a project's cumulative environmental impact cannot be
11
deemed insignificant merely because its individual contribution to an existing environmental
12
problem is relatively small. (San Francisco Baykee~er,supra, 242 Ca1.App.4th at p. 223, citing
a a Q Q
13
Kings County ~'arrn Bureau v. City ofHanford(1990} 221 Ca1.App.3d 692, 718-721; Kern v.
14
~Tnited States BLM(9th Cir. 2002)284 F.3d 1062, 1075.) To the contrary,"the greater the
~
15
existing environmental problems are, the lower the threshold should be for treating a project's
~
16
contribution to cumulative impacts as significant." San Francisco Baykeeper, at p. 222;
~
17
Communitiesfor a Better Envi~~onment,supra, 103 Cal.App.4th at p. 120.) The EIR's discussion
18
of cumulative impacts was inadequate and DWR thus failed to proceed in the manner required by
19
law when it certified the EIR and approved the Project. Moreover, DWR's findings with regard
20
to the cumulative impacts of the Project were not supported by substantial evidence.
21
NINTI~ CAUSE(JF ACTION
22
(Violation of CEQA—Inadequate Responses to Comments)
23
1.33.
24
forth above.
25
134.
Petitioners reallege and incorporate by reference each and every allegation set
A CEQA lead agency must evaluate comments on enviromnental issues received
26
from persons who reviewed and commented on the draft EIR, and the lead agency must prepare
27
written responses to every comment on the draft EIR. (CEQA Guidelines, § 150$8(a).) When a
28
comment raises a significant environmental issue, or the recoirunendations and objections raised 1492191.4
L~.Q
VERIFIED PETITION FOR WRIT OF MANDATE
1
in the comment are at variance with the lead agency's position, the lead agency must address the
2
comment in detail, giving reasons why specific comments and suggestions were not accepted.
3
(CEQA Guidelines, § 15088(b).) In particular, where comments from responsible experts
4
disclose new or conflicting data or opinions that cause concern that the agency may not have fully
5
evaluated the project and its alternatives, these comments may not simply be ignored. There must
6
be good faith, reasoned analysis in response. Conclusory statements unsupported. by factual
7
information are insufficient, 135.
9
a a Q Z d ~ z
DWR failed to respond adequately to numerous comments, suggestions, and
recommendations on the Draft EIRIEIS and RDEIR/SDEIS,including detailed technical
10
comments and expert evidence, made by Petitioners and other commenters with regard to the
11
adequacy ofkey elements of the EIR,including, but not limited to:
12
a.
the Project description;
13
b.
the baseline for evaluating impacts;
14
c.
the modeling that formed the basis ofthe EIR's analysis and impact
15
determinations;
16
d.
the methodology and evidence used to analyze Project's significant
3 Q
l~
envirorunental impacts (including, but not limited to, impacts to water supply,
18
water quality, flood control and state and federally protected fish species);
19
e.
the need for and adequacy of proposed mitigation measures;
20
f.
the range of alternatives; and
21
g.
other significant issues, including the overall inadequacy ofthe EIR
22
as an informational document.
23
136.
DWR also ignored, or otherwise failed to adequately address, numerous
24
substantive comments on the Final EIR/EIS that were submitted during the formal comment
25
period provided for the proposed Final EIR/EIS. The responses to comments contain conclusory
26
statements that are unsupported by substantial evidence in the record. Numerous responses do
27
not fully respond to the comments as submitted, or otherwise reflect a good faith, reasoned
28
analysis. 1442191.4
41 VERIFIED PETITION FOR WRIT OF MANDATE
1
137.
Petitioners and other members of the public objected to the adequacy ofthe
2
responses to comments on the Final EIR/EIS. The Science Board specifically objected that the
3
responses,"like the FEIR/EIS itself'"completely missed the point about the need to snake the
4
report readily understood by decisionmakers and the public." Despite these objections, DWR did
5
not revise the ETR to correct the deficiencies.
6
138.
For these additional reasons, DWR violated CEQA,failed to proceed in the
7
manner required by law, and prejudicially abused its discretion in certifying the EIR and
8
approving the Project.
9
TENTH CAUSE OF AC'T'ION
10
(Violation of CEQA—Insufficient Findings and Statement of Overriding Considerations)
11
139.
12
forth above.
13
140.
Petitioners reallege and incorporate by reference each and every allegation set
a a Q ~
14
findings for each significant effect identified in an EIR Specifically, the agency must make one
r~
15
of three findings:(1)that changes or alterations have been required in, or incorporated in, the
~
16
project which avoid or substantially lessen the significant environmental effect;(2)that such
17
changes or alterations are within the responsibility and jurisdiction of another public agency, and ~
18
that such changes have been adopted or can and should be adopted by that agency; or(3)specific
19
economic, legal, social, technological, or other considerations make infeasible the mitigation
20
measures or project alternatives identified in the EIR. These findings must be supported by
21
substantial evidence in the administrative record. (CEQA Guidelines, § 1.5091, subd.(b).)
CEQA Guidelines section 15091(a)requires a lead agency to make specific written
3 ~
22
141.
Under Public Resources Code section 21080(b), a lead agency may not approve a
23 ~ project with significant and unavoidable impacts unless it finds, based upon substantial evidence, 24
that specific overriding economic, legal, social, technological, or other benefits ofthe project
25
outweigh the project's unavoidable significant effects. The EIR identifies numerous impacts to
26
be significant and unavoidable, but DWR found these impacts justifiable and adopted a statement
27
of overriding considerations.
28 1492191.4
42 VERIFIED PETITION FOR WRIT OF MANDA
142.
DWR's findings in connection with certification of the ETR and approval ofthe
2
Project are not supported by substantial evidence in the record. These deficiencies include, but
3
are not limited to, the following:
4
a.
Findings regarding the feasibility of alternatives;
5
b.
The finding that the Project is the enviromnentally superior
6
alternative;
7
c.
Findings of consistency with the public trust doctrine;
8
d.
The statement of overriding considerations;
9
e.
The findings regarding water supply impacts, including the scope
10
and significance ofimpacts and the effectiveness of mitigation; and
11
£
12
The findings regarding biological impacts, including the scope and
significance ofimpacts and the effectiveness of mitigation.
a a Q Q
14
required to avoid or substantially lessen the Project's significant environmental effects(CEQA
r~
15
Guidelines, § 15091, subd.(a)(1)).
z
16
13
143.
144.
The findings fail to clearly identify the changes or alterations to the Project that are
There is no substantial evidence in the record to support the statement of
3 Q
17
overriding considerations. The EIR fails to disclose the true scope of the Project impacts,
18
including, but not limited to, impacts to water supply and biological resources, and its failure was
19
not cured by the finding that certain ofthese impacts are significant and unavoidable.
20
145.
DWR's findings and statement of overriding considerations are not supported by
21
substantial evidence, and therefore approval of the Project based upon those findings constitutes a
22
failure to proceed. in the manner required. by law and a prejudicial abuse of discretion.
23
ELEVENTH CAUSE OF ACTION
24
(Violation of CEQA—EIR Inadequate for Responsible Agency Approvals)
25
146.
26
forth above.
27
147.
28
Petitioners reallege and incorporate by reference each and every allegation set
Numerous local and state agencies have relied upon, or intend to rely upon in the
future, the EIR for purposes of various permits and approvals. Potential and actual responsible 1492191.4
L~,3
VERIFIED PETITION FOR WRIT OF MANDATE
and trusfee agencies under CEQA include the SWRCB,CDFW,the Central Valley Regional 2
Water Quality Control Board, the San Francisco Bay Regional Water Quality Control Board, the
3
Delta Stewardship Council, the California State Lands Commission, the California Department
4
of Parks and Recreation, the Califoniia Department of Boating and Waterways, the California
5
Department of Transportation, the Central Valley Flood Protection Board, Regional Air Pollution
6
Control Districts, the California Air Resources Board, the California Department ofPublic
7
Health, the San Francisco Bay Conservation and Development Commission, the Division of
8
Safety of Dams, the California Public Utilities Commission, the Port of Stockton, Alameda
9
County Flood Control and Water Conservation District, Zone 7, Santa Clara Valley Water
10
District, Kern County Water Agency, Metropolitan Water District of Southern California, San
I1
Luis &Delta-Mendota Water Authority, and the Westlands Water District.
12
148.
As detailed herein, DWR failed to comply with CEQA in connection with the
preparation and. certification of the EIR. DWR has failed to proceed in the manner required by law, and its conclusions and findings are not supported by substantial evidence. These prejudicial abuses of discretion render the EIR inadequate to support DWR's approval ofthe Project. as well as related approvals. 149.
Similarly, the prejudicial abuses of discretion described herein render the EIR
inadequate under CEQA for purposes ofthe responsible agency approvals. The EIR simply fails as an infonnatianal document and cannot support the approval of any permit or project. 20
150.
Specifically, for example, the CDFW on July 26,2017 issued to DWR a permit
21
under Fish &Game Code section 2081(b), authorizing incidental take of species protected under
22
the CESA in connection with the Project. The EIR is inadequate to support issuance of that
23
permit in a variety ofrespects, including but not limited to the following:
24
a.
The permit imposes spring outflow limitations that have not been
25
analyzed as part ofthe Project, and which will have environmental effects not
26
identified or studied in the EIR, and which will harm other legal users of water.
27
b.
28
The permit states that the spring outflow limitations will be
accomplished through. operation ofthe CVP and transfers from willing sellers of (492191,4
..
VERIFIED PETITION FOR WRIT OF MANDATE
water. This mitigation is both unenforceable—because DWR has no jurisdiction 2
over the CVP—and speculative—because the premise that there will be willing
3
sellers is not guaranteed, or even likely.
4
151.
For these reasons, among others, the EIR is inadequate for purposes ofthe
5
responsible agency approvals, and DWR has committed a prejudicial abuse of discretion in
6
certifying the EIR. Furthermore, DWR's findings as to the adequacy ofthe document for
7
purposes ofresponsible agency approvals are not supported by substantial evidence.
8
PRAYER FOR RELIEF
9
WHEREFORE,Petitioners pray for judgment as follows:
10
1.
For alternative and peremptory writs of mandate, commanding Respondent to:
11
(a)
vacate and set aside its July 21, 2017 approval ofthe Project;
12
(b)
satisfy all CEQA review requirements;
13
(c)
suspend any and all activities related to the Project until CEQA and federal
a♦ a p ~
14
~
15
z
16
prohibitory injunction prohibiting DWR from pursuing, authorizing, undertaking, or otherwise
Q
17
operating WaterFix pending completion ofthis litigation and full compliance with CEQA;
laws protecting the Delta have been satisfied; 2.
For a stay, temporary restraining order, preliminary injunction, and permanent
18
3.
For Petitioners' costs of suit;
19
4.
For Petitioners' reasonable attorneys' fees as authorized by Code of Civil
20
Procedure section 1021.5 and other provisions oflaw; and
21
5.
For other such relief as the Court may deem just and proper.
22 23 24 25 26 27 28 1492191.4
45 PETITION FOR WRIT OF MANDATE
1
DATED: August 18, 2017
DOWNEY BRAND LLP
2 By.«~.
3
5 6 7 8 9 10 11 12 13
z
14
~
15
z
16
~'
KEVIN .O'BRIEN KATHRYN L. OEHLSCHLAGER MEREDITH E. NIKKEL REBECCA R.A. SMITH Attorneys for Petitioners Reclamation District No. 108; El Dorado Irrigation District; El Dorado Water &Power Authority; Carter Mutual Water Company; Maxwell Irrigation District; Natomas Central Mutual Water Company; Meridian Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water Company; Princeton-Codora Glenn Irrigation District; Provident Irrigation District; Richter Bros, Inc.; Henry D. Richter et al; River Garden Fanns Company; South Sutter Water District; Sutter Extension Water District; Sutter Mutual Water Company; Tisdale Irrigation &Drainage Company; and Windswept Lands &Livestock Company.
4
a
~
DATED: August 18, 2017
SOMACH SIMMONS & DUNN,PC
3 Q
17
I~ ANDREW M. HITCHINGS KELLEY M.TABER AARON A. FERGUSON Attorneys for Petitioners Glenn-Colusa Irrigation District and Biggs-West Gridley Water District
18 19 20 21 22 23 24 25 26 27 28 1492191.4
L~
VERIFIED PETITION FOR WRIT OF MANDATE
1
DATED: August 18, 2017
It•
:•
t
•
2 3 KEVIN M. O'BRIEN KATHRYN L. OEHLSCHLAGER MEREDITH E. NIKKEL REBECCA R.A. SMITH Attorneys for Petitioners Reclamation District No. 108; El Dorado Irrigation District; El Dorado Water &Power Authority; Carter Mutual Water Company; Maxwell Irrigation District; Natomas Central Mutual Water Company; Meridian Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water Company; Princeton-Codora Glenn Irrigation District; Provident Irrigation District; Richter Bros, Inc.; Henry D. Richter et al; River Garden Farms Company; South Sutter Water District; Sutter Extension Water District; Sutter Mutual Water Company; Tisdale Irrigation &Drainage Company; and Windswept Lands &Livestock Company.
4 5 6 7 8 9 10 11 12 a a a
13
z
14
d
15 w
DATED: August 18, 2017
SOMACH SIMMONS & DUNN,PC
16
3
0 Q
17 ANDREW M. HITCHINGS KELLEY M.TABER AARON A. FERGUSON Attorneys for Petitioners Glenn-Colusa Irrigation District and Biggs-West Gridley Water District
18 19 20 21 22 23 24 25 26
zs
27
1492191.4
VERIFIED PETITION FOR WRIT OF MANDATE
It
~'~~-~ ~ ~'~~~
~w~~ I.J RA ~ ~
Kevin M. O'Brien
[email protected] 916.520.5235 Direct 916.520.5635 Fax
Downey Brand LLP b21 Capitol MaII, 1 $'h Fioor Sacramento, to 95814 916.444.1000 Main downeybrand.com
August 17, 2017
VIA E-1VIAIL AND FEDERAL EXPRESS
Spencer Kenner, Chief Counsel California Department of Water Resources Office of Chief Gounse] 1416 Ninth Street, Room 1104 Sacramento, CA 95814
[email protected]
Re:
Notice ofIntent to file CEQA Petition in the matter of approval ofthe California WaterFix Environmental Impact Report —Glenn-Colusa IrYigation Distrzct, et al.
To the California Department of Water Resources: PLEASE TAKE NOTICE,under Public Resources Code section 2I 167.5, that this letter serves as written notice ofPetitioners Glenn-Colusa Irrigation District; Reclamation District No. 108; Carter Mutual Water Company; El Dorado Irrigation District; El Dorado Water &Power Authority; Maxwell Irrigation District; Natomas Central Mutual Water Company; Meridian Farms V~ater Company; Oji Brothers Fann, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water Company; Princeton-Codora-Glenn Irrigation District; Provident Irrigation District; Henry D. Richter, et al; River Garden Farms Company; South Sutter Water District; Sutter Extension Water District; Sutter Mutual Water Company; Tisdale Irrigation &Drainage Company; Windswept Lands &Livestock Company; and BiggsWest Gridley Water District's intent to file a Verified Petition for Writ of Mandate against the California Department of Water Resources(DWR)under the provisions ofthe California Environmental Quality Act(CEQA)(Pub. Res. Code, § 2100 et seq.). The Petition challenges DWR's actions made on July 21,2017 approving the Bay Delta Conservation PlanlCalifornia WaterFix Project(SCH# 2008032062) and certifying the Final Environmental Impact Report for the project.
1491867.3
Grant Davis, Director August 17, 2017 Page 2
Very truly yours, ~•
:'• ~
• n "4 g .
~ m
m n
e
•a«,*
Kevin M. O'Brien Kathryn L. Oehlschlager Meredith E. Nikkel Rebecca R.A. Smith Attorneys far Petitioners Reclamation District No. 108; Carter Mutual Water Company; E1 Dorado Irrigation District; El Dorado Water &Power Authority; Maxwell Irrigation District; Natomas Central Mutual Water Company; Meridian Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water Company; Princeton-Codora-Glenn Irrigation District; Provident Irrigation District; Henry D. Richter, et al; River Garden Farms Company; South Sutter Water District; Sutter Extension Water District; Sutter Mutual Water Company; Tisdale Irrigation & Drainage Company; and Windswept Lands & Livestock Company SOMACH,SIMMONS & DUNN,PC By:
/s/Andv M. Hitchin~s Andy M. Hitchings Kelley M.Taber Aaron A. Ferguson
Attorneys for Glenn-Colusa Irrigation District and Biggs-West Gridley Water District cc(by mail): Grant Davis, Director California Department of Water Resources ,49,86.3
„BRAND
Grant Davis, Director August 17, 2017 Page 3
Marcus Yee,Program Manager Executive Program Office California Department of Water Resources 901 P Street, Fourth Floor Sacramento, CA 95814
14918673
~~~~. ~gRAND
1
2 3
I am a resident ofthe State of California, over the age of eighteen years, and not a party to the ~~vithin actic~ra. My business address is Downey Brand LLP;621 Capitol MaIL 18th Floor, Sacramento, California, 95814-4731. On August 17, 2017, I served the within document(s):
4 5 6 Q 7 8 9 10
BY E-MAIL: by transmitting via e-mail or electronic transmission -the documents) listed above to the persons) at the e-mail addresses) set forth below. BY MAIL: by placing the documents)listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below. BY OVERNIGHT MAIL: by causing documents)to be picked up by an overnight delivery service company for delivery to the addressees) on the next business day.
11 12 a a
13
z
14
ra
15
w
z
16
O
17
3 Q
Spencer Kenner, Chief Counsel California Department of Water Resources Office of Chief Counsel 1416 Ninth Street, Room 1104 Sacramento, CA 95814
Grant Davis Director California Department of Water Resources P.O. Box 942836, Rm 1115-1 Sacramento, CA 94236-0001
Via email and overni ht delivery
Via U.S. Mail
19
Marcus Yee Program Manager, Executive Program Office California Department of Water Resources 901 P Street, Fourth Floor Sacramento, CA 95814
20
Via U.S. Mail
18
21 22 23 24 25
I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare that I am employed in the office of a member ofthe bar ofthis court at whose direction the service was made. Executed on August 17, 2017, at Sacramento, California.
26 27
Catharine F. Irvine
5
DOWNEY BRAND LLP KEVIN M. O'BRIEN (Bar No. 122713) KATHRYN L. OEHLSCHLAGER (Bar No. 226817) MEREDITH E. NIKKEL(Bar No. 254818} REBECCA R.A. SMITH (Bar No. 2'75461) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: 916.444.1000 Facsimile: 916.444.2100
6
-c~~~~ [
2 3 4
7
8 9 10 11 12 a a a Q
13 14
a~
15
w z
16
3 0 Q
~`~ ~
s x~~~ ~ ~r
rr t.`r
~ ~ isi:I~1t ,;a}i11 R ~ ~,s~rf <1~~.~
Attorneys for Petitioners Reclamation District No. 108 et al. [Additional Petitioners on signature page] SOMACH SIMMONS & DUNN A Professional Corporation ANDREW M. HITCHINGS,ESQ.(Bar No. 154554) KELLEY M. TABER,ESQ.(Bar No. 184348) AARON A. FERGUSON,ESQ.(Bar No. 271427) 500 Capitol Mall, Suite 1.000 Sacramento, CA 95814 Telephone: (916)446-7979 Facsimile: (916)446-8199 ~~
17
~ i r,,
~,,_;
„~
-
c~~r~
Attorneys for Petitioners Glenn-Colusa Irrigation District and Biggs-West Gridley Water District
18 19
SUPERIOR COURT OF CALIFORNIA
20
COUNTY OF SACRAMENTO
21 22 23 24 25 26 27 28
GLENN-COLUSA IRRIGATION DISTRICT, a California Irrigation District; RECLAMATION DISTRICT NO. 108, a California Reclamation District; CARTER MUTUAL WATER COMPANY,a California mutual water company; EL DORADO IRRIGATION DISTRICT, a California Irrigation District; EL DORADO WATER &POWER AUTHORITY,a joint powers authority; MAXWELL IRRIGATION DISTRICT, a California Irrigation District; NATOMAS CENTRAL MUTUAL WATER
CASE ND.
(Pub. Res. Code,§§ 21167.6) California Environmental Quality Act (CEQA)Case
1492239.]
VERIFICATION OF KATHRYN L.
2 3 4 5 6 7 8 9 10 11 12
z
a a a
13 14 15
w
16
z
d as
COMPANY,a California mutual water company; MERIDIAN FARMS WATER COMPANY,a California mutual water company; OJI BROTHERS FARM,INC., a business entity; OJI FAMILY PARTNERSHIP,a business entity; PELGER MUTUAL WATER COMPANY,a California mutual water company; PLEASANT-GROVE VERONA MUTUAL WATER COMPANY,a California mutual water company; PRINCETON-CODORA-GLENN IRRIGATION DISTRICT, a California Irrigation District; PROVIDENT IRRIGATION DISTRICT, a California Irrigation District; HENRY D. RICHTER, ET AL, a group ofindividuals; RICHTER BROS.,INC., a business entity; RIVER GARDEN FARMS COMPANY,a business entity; SOUTH SUTTER WATER DISTRICT, a California Water District; SLITTER EXTENSION WATER DISTRICT, a California Water District; SLITTER MUTUAL WATER COMPANY,a California Water District; TISDALE IRRIGATION & DRAINAGE COMPANY,a business entity; WINDSWEPT LANDS &LIVESTOCK COMPANY,a business entity; AND BIGGS-WEST GRIDLEY IRRIGATION DISTRICT, a California Irrigation District,
3
0 Q
17
Petitioners,
18 19 20
CALIFORNIA DEPARTMENT OF WATER RESOURCES,a California state agency,
21
Respondent.
22 DOES 1-50, 23 Real Parties in Interest. 24 25 26 I, Kathryn Oehlschlager, am an attorney at law duly admitted and licensed to practice 27 before all courts of this State. I have my professional offices in the County of Sacramento, at 621 28 1492239.1
2 VERIFICATION OF KATHRYN L.
1
Capitol Mall, 18th Floor, in Sacramento, California, 95814, and in the County of San Francisco,
2
at 455 Market Street, Suite 1500, in San Francisco, California, 94105.
3
I am one ofthe attorneys ofrecord for Petitioners Carter Mutual Water Company;
4
Meridian Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual
5
Water Company; Pleasant-Grove Verona Mutual Water Company; Henry D. Richter, et al; River
6
Garden Farms Company; Sutter Mutual Water Company; Tisdale Irrigation &Drainage
7
Company; and Windswept Lands &Livestock Company (collectively,"Out-of-County
8
Petitioners") in the above-entitled action. I have read the foregoing Verified Petition for Writ of Mandate. I am informed and
9 10
believe, and on that basis attest, that the matters therein are true.
11
This Verification is signed by me rather than by the Out-of-County Petitioners because the
12
Petitioners reside and exist in Colusa, Placer, Sutter, and Yolo Counties, and are not able to sign
13
the verification.
a~ a Q Q
14
~
15
~
16
I declare under penalty of perjury, under the laws ofthe State of California, that the foregoing is true and correct. Executed on this 18th day of August, 2017, at Sacramento, California.
3 Q
l~ 18 19 20 21 22
~'
Kathryn Oehlschlager DOWNEY BRAND LLP Attorneys for Petitioners Carter Mutual Water Company; Me ,~ an Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water Company; Richter Bros., Inc.;Henry D. Richter, et al; River Garden Farms Company; Sutter Mutual Water Company; Tisdale Irrigation &Drainage Company; and Windswept Lands &Livestock Company.
23 24 25 26 27 28 1492239.1
VERIFICATION OF KATHRYN L. OEHLSCHLAGER
VERIFICATION 2
I, Brett Gray, declare:
3
I am the General Manager for the Natomas Central Mutual V~ater Company, a California
4
Mutual Water Company doing business in Sacramento County, Califoiyzia. Natc~mas Centrat
5
1Vlutual Water Company is named as a Petitioner in this action and I am authorized to make this
6
verification on its behalf.
7
I have read the foregoing Verified Petition far Writ af` Mandate and know its contents; I
8
am informed and believe and on that basis allege that the matters stated in the verified Petiiion for
9
Vi~rit of Mandate are true and caiz~ect.
10 11
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this ~(l day of August, ?017, at Sacramento, Califs nia.
12 a a Q
13
a
~~
~
15
w
l6
~y rett Gray General TVlanager Natomas Central Mutual Water Company
3 p
17 l8 I9 20 21 22 23 ~ 24 25 26 2'7 28 iay~uxit~' VERIFIED PETTPION FQR WRTI'OF MANDATE
2
6 7 8 9 10 11 12 a a a Q d x as w z 3 O Q
13 14 15
DOWNEY BRAND LLP KEVIN M. O'BRIEN (Bar No. 122713) KATHRYN L. OEHLSCHLAGER (Bar No. 226817) MEREDITH E. NIKKEL(Bar No. 254818) REBECCA R.A. SMITH (Bar No. 25461) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: 916.444.1000 Facsimile: 916.444.2100 kobrien(a~downeybrand.com koehlschla er(a,downevbrand.com mnikkel(cz~,downeybrand.com rsmith(c~downevbrand.com Attorneys for Petitioners Reclamation District No. 108 et al. [Additiotzal Petitioners on signature page] SOMACH SIMMONS & DLJNN A Professional Corporation ANDREW M. HITCHINGS,ESQ.(Bar No. 154554) KELLEY M. TABER,ESQ.(Bar No. 184348) AARON A.FERGUSON,ESQ.(Bar No. 271427) 500 Capitol Mall, Suite 1000 Sacramento, CA 95814 Telephone: (916} 446-7979 Facsimile: (916)446-8199 ahitchings(cr~,solnachlaw.com ktaber(a~sornachlaw.com aferguson(a,somachlaw.com
16 17
Attorneys for Petitioners Glenn-Colusa Irrigation District and Biggs-West Gridley Water District
18 19
SUPERIOR COURT OF CALIFORNIA
20
COUNTY OF SACRAMENTO
21 22 23 24 25 26 27 28
GLENN-COLUSA IRRIGATION DISTRICT, a California Irrigation District; RECLAMATION DISTRICT NO. 108, a California Reclamation District; CARTER MUTUAL WATER COMPANY,a California mutual water company; EL DORADO IRRIGATION DISTRICT, a California Irrigation District; EL DORADO WATER &POWER AUTHORITY,a joint powers authority; MAXWELL IRRIGATION DISTRICT, a California Irrigation District; NATOMAS CENTRAL MUTUAL WATER
CASE NO. NOTICE OF ELEC'T'ION TO PREPARE CEQA ADMINISTRATIVE RECORD (Pub. Res. Code, §§ 21167.6) California Environmental Quality Act (CEQA)Case
1491887.1
ELECTION TO PREPARE CEQA ADMINISTRATIVE RECORD
2 3 4 5 6 7
9 10 11 12 a, a a Q
d
13 14 15 16
z
w
COMPANY,a California mutual water company; MERIDIAN FARMS WATER COMPANY,a California mutual water company; OJI BROTHERS FARM,INC.; a business entity; OJI FAMILY PARTNERSHIP,a business entity; PELGER MUTUAL WATER COMPANY,a California mutual water company; PLEASANT-GROVE VERONA MUTUAL WATER COMPANY,a California mutual water company; PRINCETON-CODORA-GLENN IRRIGATION DISTRICT, a California Irrigation District; PROVIDENT IRRIGATION DISTRICT, a California Irrigation District; HENRY D. RICHTER, ET AL, a group ofindividuals; RICHTER BROS.,INC., a business entity; RIVER GARDEN FARMS COMPANY,a business entity; SOUTH SLITTER WATER DISTRICT, a California Water District; SLITTER EXTENSION WATER DISTRICT, a California Water District; SLITTER MUTUAL WATER COMPANY,a California Water District; TISDALE IRRIGATION &DRAINAGE COMPANY,a business entity; WINDSWEPT LANDS & LIVESTC?CK COMPANY,a business entity; AND BIGGS-WEST GRIDLEY IRRIGATION DISTRICT, a California Irrigation District,
0
Q
17
Petitioners,
18 19
v.
20
CALIFORNIA DEPARTMENT OF WATER RESOURCES,a California state agency,
21
Respondent.
22 DOES 1-50, 23 Real Parties in Interest. 24 25 The undersigned Petitioners elect to prepare the record of proceedings in the above-
26 27
captioned proceeding, or alternatively, to pursue an alternative method of record preparation
28
pursuant to California Public Resources Code section 21167.6(b)(2). 1491887.1
2 TO PREPARE CEQA ADMINISTRATIVE RECORD
2 DATED: August 18, 2017 3 4
DOWNEY BRAND LLP
By.
5
~~
,~"~ KEVIN M. O'BRIEN ~'THRYN L. OEHLSCHLAGER MEREDITH'E. NIKKEL REBECCA R.A. SMITH Attorneys for Petitioners Reclamation District No. 108; El Dorado Irrigation District; El Dorado Water &Power Authority; Carter Mutual Water Company; Maxwell Irrigation District; Natomas Central Mutual Water Company; Meridian Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water Company; Princeton-Codora Glenn Irrigation District; Provident Irrigation District; Henry D. Richter, et al; Richter Bros., Inc.; River Garden Farms Company; South Sutter Water District; Sutter Extension Water District; Sutter Mutual Water Company; Tisdale Irrigation &Drainage Company; and Windswept Lands &Livestock Company.
6 7 8 9 10 11 12 a~ a a Q z
13 14 15
w O
Q
16
DATED: August 18, 2017
SOMACH SIMMONS & DUNN
17 18 19
I~ ANDREW M. HITCHINGS KELLEY M.TABER AARON A. FERGUSON Attorneys for Petitioners Glenn-Colusa Irrigation District, Biggs-West Gridley Water District
20
zl 22 23 24 25
27
1491887.1
3
ELECTION TO PREPARE CEQA ADMINISTRATIVE RECORD
1 2 3
DATED: August 18, 2017
DOWNEY BRAND LLP
4 5
KEVIN M. O'BRIEN KATHRYN L. OEHLSCHLAGER MEREDITH E. NIKKEL REBECCA R.A. SMITH Attorneys for Petitioners Reclamation District No. 108; El Dorado Irrigation District; EI Dorado Water &Power Authority; Carter Mutual Water Company; Maxwell Irrigation District; Natomas Central Mutual Water Company; Meridian Farms Water Company; Oji Brothers Farm, Inc.; Oji Family Partnership; Pelger Mutual Water Company; Pleasant-Grove Verona Mutual Water . Company; Princeton-Codora Glenn Irrigation District; Provident Irrigation District; Henry D. Richter, et al; Richter Bros., Inc.; River Garden Farms Company; South Sutter Water District; Sutter Extension Water District; Sutter Mutual Water Company; Tisdale Irrigation &Drainage Company; and Windswept Lands &Livestock Company.
6 7 8 9 10 11 12 a
a a A
z x w
z 3 0 Q
13 14 15 16
DATED: August 18, 2017
SOMACH SIMMONS & DUNN
l~ 1s 19
By: ANDREW M. HITCHINGS KELLEY M. TABER AARON A. FERGUSON Attorneys for Petitioners Glenn-Colusa Irrigation District, Biggs-West Gridley Water District
20 21 22 23 24 25 26 27 28 14y,88~.,
3
ELECTION TO PREPARE CEQA ADMINISTF
