U.S. Chief District Court Judge Lawrence J. O’Neill has issued an order in AquAlliance, et al v. U.S. Bureau of Reclamation, et al holding that analysis and disclosure for the Environmental Impact Report/Environmental Impact Statement (“EIR/S”) for a water transfer program under the Central Valley Project (“CVP”) were insufficient.
Under the program, the U.S. Bureau of Reclamation (“Reclamation”) and the San Luis & Delta–Mendota Water Authority (“the Authority”) could transfer up to 511,094 AF annually, depending on hydrologic conditions, from the Sacramento River to users south of the Delta. Transfers are made possible through the use of groundwater substitution, fallowing, reservoir releases, and conservation. Transfers of this nature have been occurring for decades. Establishing a program provides regulatory efficiency, with the EIR/S including a stated purpose to “provide a streamlining tool by providing a comprehensive, long-range, project-level view of the potential environment impacts associated with a range of potential transfer activities over a ten-year period, to both expedite approval of water transfers and to reduce participant uncertainty.”
The program was opposed by residents and local governments in Northern California.
In May 2015, AquAlliance, California Sportfishing Protection Alliance, Central Delta Water Agency, Local Agencies of the North Delta, and South Delta Water Agency filed a lawsuit arguing that the EIR/S “was arbitrary and capricious, ignored relevant new information and failed to meet minimum requirements of the National Environmental Policy Act (“NEPA”) and the California Environmental Quality Act (“CEQA”).” Judge O’Neill ruled in favor of AquAlliance, et al on several of the specific CEQA claims and two of the NEPA claims, including:
- There were no performance standards for groundwater mitigation measure under CEQA;
- The FEIS/EIR failed to mitigate for land subsidence under CEQA;
- The cumulative biological impact analysis for reduced Delta outflow was inadequate under CEQA;
- The FEIS/EIR failed to analyze impacts to the giant garter snake and propose mitigation under CEQA;
- The agencies failed to evaluate the effectiveness of groundwater mitigation under NEPA; and
- The agencies failed to consider climate change impacts under NEPA.
The court also rejected a number of claims. Among the most notable are the argument that the Authority is the inappropriate lead agency because potentially significant impacts lie outside of its boundaries and that the Department of Water Resources would be a better lead agency. Judge O’Neill turned to Center for Biological Diversity v. City of San Bernardino as precedent for his decision on this point. The case involved the EIR for the Cadiz Water Project, which proposes construction of wells and transport via underground pipeline on land in San Bernardino County with Santa Margarita Water Agency, the County of San Bernardino as a possible responsible agency, and potential customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties. Judge O’Neill agreed with the Authority’s argument that even though impacts will occur outside of the Authority’s jurisdiction, the Authority has a more significant role than DWR because the transfers are “‘voluntary actions proposed by willing buyers and sellers and are not initiated by state agencies’… DWR will not be a party involved in negotiating the transfers identified in the EIS/EIR, nor will the agency be party to any of the transfer contracts.”
The court also rejected the argument that the project violates CEQA because the time, amount, location, and frequency of transfers are not included in the project description. In his conclusion on this point, Judge O’Neill states, “The Court agrees with the Authority that the FEIS/R in this case uses CEQA as it was intended to be used: to describe and analyze a series of individual activities having generally similar impacts that can be mitigated in similar ways.”
On the portions the case that have been deemed unlawful, Judge O’Neill directed the parties to confer and submit a “joint proposed form of judgment that identifies a schedule for remand and/or a joint proposed schedule for any anticipated further proceedings in this case.”
Written by Marta L. Weismann