Cnty. of Butte v. Dep't of Water Res.

30 Cal.App.5th 630

241 Cal.Rptr.3d 720

COUNTY OF BUTTE, Plaintiff and Appellant,

v.DEPARTMENT OF WATER RESOURCES, Defendant and Respondent;

State Water Contractors, Inc., et al., Real Parties in Interest and Respondents.

County of Plumas et al., Plaintiffs and Appellants,

v.Department of Water Resources, Defendant and Respondent;

State Water Contractors, Inc., et al., Real Parties in Interest and Respondents.

C071785

Court of Appeal, Third District, California.

Filed December 20, 2018

Bruce Alpert, County Counsel; Rossmann and Moore, Antonio Rossmann, San Francisco, Roger B. Moore, and Barton Lounsbury for Plaintiff and Appellant County of Butte. R. Craig Settlemire, County Counsel; Law Office of Roger B. Moore and Roger B. Moore; Law Offices of Michael B. Jackson and Michael B. Jackson for Plaintiffs and Appellants Plumas County and Plumas County Flood Control and Water Conservation District.

E. Robert Wright for Friends of the River and the California Sportfishing Protection Alliance as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kamala D. Harris and Xavier Becerra, Attorneys General, Robert W. Byrne, Senior Assistant Attorney General, Randy L. Barrow, Deputy Attorney General, Deborah L. Barnes and Matthew J. Goldman, Deputy Attorneys General for Defendant and Respondent Department of Water Resources. The Sohagi Law Group, Margaret M. Sohagi and Philip A. Seymour ; Duane Morris, Thomas M. Berliner and Jolie-Anne S. Ansley ; Downey Brand, David R.E. Aladjem for Real Parties in Interest and Respondents Alameda County Flood Control & Water Conservation District, Zone 7, Kern County Water Agency, San Bernardino Valley Municipal Water District, Santa Clara Valley Water District, The Metropolitan Water District of Southern California, and State Water Contractors, Inc.

Blease, J.

The Department of Water Resources (DWR) applied to the Federal Energy Regulatory Commission (FERC or Commission) to extend its federal license to operate Oroville Dam and its facilities as a hydroelectric dam.¹ The project is referred to as the Oroville Facilities Project (sometimes also Project or Settlement Agreement (SA) ) by which the affected parties agree to the conditions for the extended license. "The SA includes Appendix A, which incorporates all of the ... measures that the Settling Parties believe to be under FERC’s jurisdiction."² The objective of the Project is the continued operation of the Oroville Facilities for power generation and the implementation of conditions for the extended license.

The plaintiffs brought this action in the superior court to stay the license procedure on the premise the environmental effects of relicensing the dam concern the operation of the dam and that jurisdiction to review the matter lies in the state courts pursuant to the California Environmental Quality Act ( Pub. Resources Code, § 21000 et seq. ; hereinafter CEQA).³ They claim that a CEQA document offered to support the DWR’s application to FERC failed to consider the impact of climate change on the operation of the dam for all the purposes served by the dam. The superior court dismissed the complaint on the ground that predicting the impact of climate change is speculative. The plaintiffs appealed.

A federal license is required by the Federal Power Act ( 16 U.S.C. § 791a et seq. ; hereinafter FPA) for the construction and operation of a hydroelectric dam. The license is issued by FERC. With one relevant exception, the FPA occupies the field of licensing a hydroelectric dam and bars review in the state courts of matters subject to review by FERC. (See, e.g., First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152, 66 S.Ct. 906, ( First Iowa ).) The reason is that a dual final authority with a duplicate system of state permits and federal licenses required for each project would be unworkable. In this case the duplicate authority involves the separate NEPA (National Environmental Protection Act) and CEQA reviews of the SA. ( Ibid . )

The exception to preemption lies with the state’s authority to impose more stringent water quality conditions on the license than federally required pursuant to section 401 ( 33 U.S.C. § 1341 ; hereinafter section 401) of the Clean Water Act⁴ ( 33 U.S.C. § 1251 et seq. ).⁵ In California the authority to establish the conditions is vested in the state water pollution control board (now State Water Resources Control Board (SWRCB) ). ( Wat. Code, § 13160 et seq. ) The conditions must be set forth in a certificate to be incorporated in the license.⁶ The environmental predicate for the certificate is set forth in Appendix A of the SA in both NEPA and CEQA reviews of the conditions for the license. To avoid duplication of federal and state environmental reviews, the jurisdiction to review the conditions lies with FERC.

Oroville Dam was completed in 1968 as part of the State Water Project (SWP). It blocks access to 66.9 miles of high-quality habitat for anadromous fish (salmon & steelhead). FERC licenses are conditioned on the adoption of a plan for the "adequate protection, mitigation, and enhancement of fish and wildlife ... and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes ...." ( 16 U.S.C. § 803(a)(1).) The Feather River Fish Hatchery was built to compensate for the loss of spawning grounds resulting from the construction of Oroville Dam.

The DWR proposes, in fulfillment of the environmental requirements of section 803 of title 16 of the United States Code, that new measures be taken to improve the conditions of fish and wildlife affected by the presence of the dam. The measures include a commitment by DWR to develop plans to enhance, protect, restore, and/or create habitat within the FERC boundary to be set forth in a certificate. These plans, referred to as the "New Project License," are subject to CEQA environmental review when implemented.⁷ The DWR has selected a federal alternative procedure, an SA, for the fulfillment of its obligations. The SA involves the agreement of the parties affected by the extended license.

We shall conclude that the plaintiffs cannot challenge the environmental sufficiency of the SA in the state courts because jurisdiction to review the matter lies with FERC and plaintiffs did not seek federal review as required by 18 Code of Federal Regulations part 4.34(i)(6)(vii) (2003). Moreover, the plaintiffs did not challenge and could not challenge the SWRCB Certificate itself in their pleadings because it did not exist at the time this action was filed. The extended license issues upon the filing of a certificate and that cannot be delayed beyond one year from the date of a request for the certificate. "Section 401(a)(1) requires that a State ‘act on a request for certification[ ] within a reasonable period of time (which shall not exceed one year) after receipt of such request,’ or else ‘the certification requirements of this subsection shall be waived ....’ " ( Alcoa Power Generating Inc. v. FERC (D.C. Cir. 2011) 643 F.3d 963, 972.) It is only after the issuance of the license that the Certificate may be implemented.

Accordingly, this court has no jurisdiction of the cause tendered. We shall return the case to the trial court with an order to dismiss the complaint for lack of subject matter jurisdiction.⁸

DISCUSSION⁹

A. The Oroville FERC Project and its Multiple Uses

The Oroville FERC Project No. 2100 is located on the Feather River in the Sierra Nevada foothills in Butte County, California. The Oroville Facilities were constructed between 1961 and 1968 as part of the SWP, a water storage and delivery system of reservoirs, aqueducts, power plants, and pumping plants designed to provide flood control and to store and distribute water to supplement the needs of urban and agricultural water users in both northern and southern California. The Oroville Dam is the largest earthen dam in the United States. The Oroville Facilities Project is operated for power generation, water quality improvement in the Sacramento–San Joaquin Delta, recreation, fish and wildlife enhancement, and flood management. The dam is designed to access the waters of Lake Oroville at different depths to allow control of the temperature of the water discharged from the dam. The only physical change to the existing dam is the opening of a water valve to access the cold water at the bottom of Lake Oroville.¹⁰

The Oroville Facilities include facilities and operations to help protect and enhance fish and wildlife species and their habitat. Many of the existing environmental programs implemented within the Oroville Facilities Project boundary are cooperatively managed or are based on agreements with other agencies such as the Department of Fish and Game and the United States Fish and Wildlife Service. This includes operation and maintenance of facilities such as the Feather River Fish Hatchery and the Oroville Wildlife Area and implementation of measures developed in consultation with interested parties to protect species that are listed under the Federal Endangered Species Act and/or the California Endangered Species Act.

As an integral part of the SWP, water stored in Lake Oroville is released from the Oroville Facilities to meet a variety of statutory, contractual water supply, flood management, and environmental commitments. These contractual, flood management, fishery, water quality, and other environmental obligations are defined in numerous operating agreements that specify timing, flow limits, storage amounts, and/or constraints on water releases. The relicensing of the operation of the dam is consistent with these existing commitments and no changes to the contractual obligations or to the general pattern of these releases are anticipated.

The Oroville Facilities are also important components of the Sacramento River Flood Control Project, the flood management system for areas along the Feather and Sacramento rivers downstream of...