County of Amador v. Water Agency

91 Cal.Rptr.2d 66

76 Cal.App.4th 931

COUNTY OF AMADOR, Plaintiff, v. EL DORADO COUNTY WATER AGENCY et al., Defendants;

Pacific Gas and Electric Company, Real Party in Interest.

Boyd Gibbons, as Director, etc., Plaintiff and Respondent, v. El Dorado County Water Agency et al., Defendants and Appellants;

Pacific Gas and Electric Company, Real Party in Interest and Respondent.

League to Save Sierra Lakes, Plaintiff and Respondent, v. El Dorado County Water Agency et al., Defendants and Appellants;

Pacific Gas and Electric Company, Real Party in Interest and Respondent.

No. C027948.

Court of Appeal, Third District.

November 3, 1999.

Rehearing Denied December 1, 1999.

Review Denied February 16, 2000.^*

Noble Sprunger and Philip H. Weber, Placerville, for Defendant and Appellant El Dorado Irrigation District.

Louis B. Green, County Counsel, Thomas D. Cumpson, Deputy County Counsel, Remy, Thomas and Moose, James G. Moose, John H. Mattox, Sacramento, and Erik K. Spiess, for Defendant and Appellant El Dorado County Water Agency.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Roderick E. Walston and Richard M. Frank, Chief Assistant Attorneys General, Charles W. Getz IV, Assistant Attorney General and Ellen M. Peter, Deputy Attorney General, for Plaintiff and Respondent Department of Fish and Game.

Earthjustice Legal Defense Fund and Stephan C. Volker, San Francisco, for Plaintiff and Respondent League to Save Sierra Lakes.

No appearance for Real Party in Interest and Respondent.

HULL, J.

Under the best of circumstances, cases involving the California Environmental Quality Act (CEQA) are complicated. Legal questions resist easy resolution, and records are voluminous. That is particularly true when cases involve crucial matters such as population growth, increased demands for water, and the threatened degradation of natural resources. If a case also involves procedural anomalies, matters become that much more difficult.

This is such a case. Defendants El Dorado County Water Agency (Water Agency) and El Dorado Irrigation District (Irrigation District) embarked on an ambitious project to provide water to a burgeoning population. The need for new water supplies was predicated on projections contained in a draft, unadopted general plan.

The plan to increase water supplies had two distinct aspects. The first involved the Water Agency's Water Program and the proposed El Dorado Project, which was designed to take approximately 17,000 acre feet of water per year (af/yr)¹ for consumptive use from three high Sierra lakes. The Water Agency and the Irrigation District prepared an environmental impact report (EIR) and certified it as complying with CEQA.

The second component involved the proposed purchase of "Project 184," a hydroelectric project, from Pacific Gas and Electric Company (PG & E). In addition to gaining ownership of this project, defendants also sought to shift the focus of Project 184 to provide not only hydroelectric power, but consumptive water supplies as well. The Irrigation District concluded this project was exempt from CEQA review requirements.

These decisions were challenged by plaintiffs Department of Fish and Game (the Department), Amador County (Amador), and a coalition led by the League to Save Sierra Lakes (collectively referred to as the League). This coalition included Alpine County, environmental groups, and area homeowner associations.

The trial court agreed with many of plaintiffs' claims and issued a writ of mandate. As recounted in greater detail later in this opinion, the court ordered defendants to set aside their approvals of the EIRs as well as their adoptions of findings of fact and statements of overriding concerns. The court also ordered the Irrigation District to set aside its notice of exemption for Project 184, and suspended any operation of Project 184 for consumptive water use until the Irrigation District complied with CEQA.

Both the Water Agency and the Irrigation District appeal, raising various claims relating to the Water Agency's Water Program and the El Dorado Project. They assert subsequent actions by El Dorado County (the County) and the State Water Resources Control Board (SWRCB) moot many of the court's concerns. They also contend that, contrary to the trial court's assessment, the certified EIRs met CEQA requirements. We conclude the matters are not moot. We further conclude that the EIR is fundamentally flawed because it is predicated on a draft, unadopted general plan.

The Irrigation District also contends the court's rulings regarding Project 184 are erroneous. Specifically, it asserts: (1) CEQA challenges are preempted by the Federal Power Act (16 U.S.C. § 791a et seq.); (2) plaintiffs' claims are barred by the statute of limitations; and (3) Project 184 is categorically exempt from CEQA review requirements. We reject each of these assertions, and affirm.

Facts and Procedural History

Caples Lake, Silver Lake, and Lake Aloha are three high Sierra lakes that are widely used for recreational purposes. Through its Project 184, PG & E diverted and stored water at these lakes, and then released water as needed to generate hydroelectric power.

In March 1991, defendants Water Agency and Irrigation District filed a joint water rights application with the SWRCB for the stored water volume of these lakes and for diversion of this water from the South Fork of the American River for consumptive water use in El Dorado County. This proposal required environmental review under CEQA.

In September 1992, defendants prepared a draft EIR (DEIR) for the Water Agency's Water Program and El Dorado Project for the El Dorado Irrigation District service area. This document was designed to provide a broad overview of water delivery options as well as in-depth analysis of one specific project, the El Dorado Project, the joint water rights application for consumptive water supply. The DEIR indicated that the primary objective of the proposed water program was "to deliver sufficient water supplies to meet projected long-term (2020) demands within the El Dorado Irrigation District ... service area," that is, "the projected growth anticipated in the general plan update." This general plan update was in draft form and had not yet been adopted by the County.

The DEIR outlined the proposal as follows: "PG & E, in connection with Federal Energy Regulatory Commission Project No. 184 (PG & E's El Dorado Project), possesses various water-related facilities, including dams, reservoirs, diversions, and conveyances, which are related to power generation at El Dorado and Chili Bar Powerhouses. PG & E possesses the nonconsumptive (power) water rights to operate these facilities and certain pre-1914 consumptive water rights. [¶] [The Water Agency and Irrigation District] have submitted a joint application to SWRCB for consumptive use rights to waters stored by PG & E and to certain direct diversion amounts from South Fork American River using PG & E's El Dorado Canal.... [The Water Agency and Irrigation District] intend to use the supplemental water from PG & E to meet growing demands, especially in dry and critically dry years. The combined safe yield from these rights would be about 17,000 af/yr, assuming that water is delivered on a schedule and to locations (such as Folsom Reservoir) appropriate to [the Irrigation District's] requirements and that PG & E's current mode of operation does not change____ No changes in the operation of [the lakes] would occur under the El Dorado project."

The DEIR stated that controversy had arisen over the possible effects of the El Dorado Project on the Sierra lakes. The DEIR concluded "the proposed program would not alter the way in which PG & E operates these facilities. Therefore, the proposed program would not affect these resources."

Numerous problems were raised during the period for public comment. For example, the League and the Department argued the DEIR did not describe PG & E's historical operation of the lakes with any specificity, thus limiting the ability to measure any impact on these resources. The League also noted that the general plan process was incomplete and that the relationship between growth and water supplies was not discussed adequately in the DEIR.

Defendants responded that no change in the DEIR was necessary, and in March 1993, they issued a final EIR (FEIR). In May 1993, defendants certified the FEIR, adopted findings of fact and a statement of overriding considerations, and posted a notice of determination.

The Department, the League, and Amador filed legal challenges to this determination.

SWRCB held a hearing on defendants' joint water rights application, and in October 1993 issued a letter stating the record did not contain substantial evidence to support that request. Defendants subsequently submitted an amended joint water rights application to SWRCB, changing the point of diversion to Folsom Reservoir and specifying the amount of consumptive use to be 17,000 af/yr. In July 1995, a draft supplemental EIR (DSEIR) was prepared and a final supplemental EIR (FSEIR) was prepared in October 1995. Defendants again adopted findings of fact and a statement of overriding considerations.

While these efforts were pending before the SWRCB, the Irrigation District learned that PG & E was interested in selling Project 184, the hydroelectric generation project that utilized the three Sierra lakes. As recounted in greater detail below, the Irrigation District decided to try to acquire this facility. Initially, the Irrigation District apparently intended to do an environmental analysis of this acquisition. Instead, it concluded this purchase was exempt from CEQA and adopted a notice of exemption in April 1995. In September 1995, the Irrigation District proceeded with steps to purchase Project 184.

Plaintiffs amended their writ petitions to include challenges to the acquisition of Project 184. Ultimately, all of the claims...