In re Bay-Delta Proceedings

184 P.3d 709

77 Cal.Rptr.3d 578

43 Cal. 4th 1143

In re BAY-DELTA PROGRAMMATIC ENVIRONMENTAL IMPACT REPORT COORDINATED PROCEEDINGS.

No. S138974.

Supreme Court of California.

June 5, 2008.

Brenda Washington Davis, Rebecca Dell Sheehan, Sacramento, John R. Weech, Ronda Azevedo Lucas for Plaintiffs and Appellants Don Laub, Debbie Jacobsen, Ted Sheely and California Farm Bureau Federation.

Gibson, Dunn & Crutcher, Christopher H. Buckley, Jr., Alan Neal Bick, Irvine, and Christeon J. Constanzo for Plaintiff and Appellant California Farm Bureau Federation.

Nomellini, Grilli & McDaniel, Dante John Nomellini, Sr., Daniel A. McDaniel, Dante John Nomellini, Jr., Stockton; Thomas M. Zuckerman; and John Herrick, Stockton, for Plaintiffs and Appellants Central Delta Water Agency, R.C. Farms, Inc., Zuckerman-Mandeville, Inc., Rudy Mussi and South Delta Water Agency.

Brian E. Gray; Kerr & Wagstaffe, James M. Wagstaffe, Michael J. von Loewenfeldt and Keith K. Fong, San Francisco, for Plaintiff and Appellant Regional Council of Rural Counties.

Best Best & Krieger and Roderick E. Walston, Walnut Creek, for California Chamber of Commerce, California Municipal Utilities Association and Los Angeles Area Chamber of Commerce as Amici Curiae on behalf of Plaintiffs and Appellants.

Rossmann and Moore, Antonio Rossmann, Roger Moore, David R. Owen, Palo Alto; Hamilton Candee, San Francisco, Katherine S. Poole; and Thomas J. Graff, Oakland, for the Planning and Conservation League, Natural Resources Defense Council and Environmental Defense as Amici Curiae on behalf of Plaintiffs and Appellants.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Tom Greene and Janet Gaard, Chief Assistant Attorneys General, J. Matthew Rodriquez, Assistant Attorney General, Daniel L. Siegel, Danae J. Aitchison, Gordon B. Burns, Virginia A. Cahill and Peter Southworth, Deputy Attorneys General, for Defendants and Respondents State of California, Joseph Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental Protection Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick Wright, CALFED Bay-Delta Program and Department of Fish and Game.

Timothy N. Washburn; Shute, Mihaly & Weinberger and Ellen J. Garber, San Francisco, for Sacramento Area Flood Control Agency as Amicus Curiae on behalf of Defendants and Respondents State of California, Joseph Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental Protection Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick Wright, CALFED Bay-Delta Program and Department of Fish and Game.

Heller Ehrman White & McAuliffe, Nicholas W. van Aelstyn, San Francisco, Patricia K. Olver and Alissa B. Kolek for The Nature Conservancy as Amicus Curiae on behalf of Defendants and Respondents State of California, Joseph Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental Protection Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick Wright, CALFED Bay-Delta Program and Department of Fish and Game.

Kronick, Moskovitz, Tiedemann & Girard, Clifford W. Schulz, and Eric N. Robinson, Sacramento, for Real Parties in Interest and Respondents State Water Contractors, Kern County Water Agency and Tulare Lake Basin Water Storage District.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, William T. Chisum and Jon D. Rubin, Sacramento, for Real Party in Interest and Respondent Westlands Water District.

Sonnenschein Nath & Rosenthal, Kevin T. Haroff; Squire, Sanders & Dempsey, Kevin T. Haroff, San Francisco, and Olive Lee Thaler for Real Party in Interest and Respondent Santa Clara Valley Water District.

Jeffrey Kightlinger, Sydney B. Bennion, Karen L. Tachiki, Linus S. Masouredis, Oakland, and Adam C. Kear for Real Party in Interest and Respondent The Metropolitan Water District of Southern California.

Hatch & Parent and Lisabeth D. Rothman, Los Angeles, for California Building Industry Association, Building Industry Legal Defense Foundation, Homebuilders Association of Northern California, Building Industry of San Diego and California Business Properties Association as Amici Curiae on behalf of Defendants and Respondents State of California, Joseph Graham Davis, California Resources Agency, Mary S. Nichols, California Environmental Protection Agency, Winston H. Hickox, Department of Water Resources, Thomas Hannigan, Patrick Wright, CALFED Bay-Delta Program and Department of Fish and Game and Real Parties in Interest State Water Contractors, The Metropolitan Water District of Southern California and Westlands Water District.

Somach, Simmons & Dunn, Stuart L. Somach, Andrew M. Hitchings and Nicholas A. Jacobs, Sacramento, for Real Party in Interest and Respondent Glenn-Colusa Irrigation District.

O'Laughlin & Paris and Tim O'Laughlin for Interveners and Respondents.

Weston Benshoof Rochefort Rubalcava & MacCuish, Edward J. Casey and Tammy L. Jones, Los Angeles, for The Association of California Water Agencies as Amicus Curiae.

KENNARD, J.

California's two largest rivers, the Sacramento and the San Joaquin Rivers, meet to form a delta (California Delta or Delta) near the City of Sacramento, and their combined waters, if not diverted, flow through the Delta, Suisun Bay, and San Francisco Bay, to the Pacific Ocean. The flow of water through this region, commonly known as the Bay-Delta, forms the largest estuary on the West Coast of the United States. It is also the hub of California's two largest water distribution systems, supplying drinking water for two-thirds of California's residents and irrigation water for seven million acres of agricultural land.

Competition for the Bay-Delta's resources, pollution of Bay-Delta water, draining and filling of tidal marshes and other wetlands, and diversion of Bay-Delta water for urban and agricultural uses throughout the state have, however, resulted in a decline in Bay-Delta wildlife habitat, the threatened extinction of plant and animal species, an increasing risk of failure of Bay-Delta levees, and degradation of the Bay-Delta as a reliable source of high quality water.

In 1994, to address the Bay-Delta's problems, 18 federal and state agencies formed a consortium, known as CALFED, to design and implement a long-term and comprehensive plan (the CALFED Program or Program), to restore the Bay-Delta's ecological health and to improve management of Bay-Delta water for the various beneficial uses that depend on it. The CALFED Program was intended to reduce conflicts and provide solutions that competing interests could support. Because of the plan's comprehensive and long-range nature, CALFED decided to proceed in stages and to begin by preparing a program environmental impact statement/environmental impact report (EIR; together PEIS/R). Under state law, a program environmental impact report is one that "may be prepared on a series of actions that can be characterized as one large project" and are related in specified ways. (Cal. Code Regs., tit. 14, § 15168, subd. (a).)

Here, we must determine whether, as the Court of Appeal concluded, the final PEIS/R for the CALFED Program (CALFED Final Programmatic EIS/EIR (July 2000)) failed to comply with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because it did not examine in detail a program alternative requiring reduced water exports from the Bay-Delta; because it did not identify with adequate specificity the potential sources of water required for the proposed projects or analyze in sufficient detail the environmental impacts of taking water from those specific sources; and because it did not provide sufficient detail about the proposed "Environmental Water Account" (a specific project within the CALFED Program). Disagreeing with the Court of Appeal, we conclude that the CALFED program environmental impact report is not legally defective in any of these ways.

I. FACTS, BACKGROUND, AND PROCEDURAL HISTORY

California has a long history of conflict over its water resources. "The history of California water development and distribution is a story of supply and demand. California's critical water problem is not a lack of water but uneven distribution of water resources." (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 98, 227 Cal.Rptr. 161.) Approximately 75 percent of the state's natural water runoff occurs north of Sacramento, while about 75 percent of the net water demand, for both agricultural and urban uses, occurs south of Sacramento. (See ibid.) The Bay-Delta has been the focal point of the most ambitious projects to resolve this mismatch of supply and demand.

The Bay-Delta's watershed encompasses 37 percent of the state's surface area, and its average annual in-flow is 22 million acre-feet of water, of which 17.9 million acre-feet comes from the Sacramento River region. Covering over 738,000 acres in five counties, the Bay-Delta is a haven for plants, fish, and wildlife, supporting over 750 native and introduced plant and animal species. Home to residential and business communities supported by major transportation networks, the Bay-Delta is also the hub of the state's major water distribution networks. Currently an average of 5.9 million acre-feet of water is exported south each year from the Bay-Delta, of which about 60 percent is taken for agriculture and the remainder for urban uses. Two-thirds of California households receive at least some of their domestic water from the Bay-Delta, and over seven million acres of highly productive land are irrigated from the same source. (See United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 97, 227 Cal.Rptr. 161.)

As a result of the uneven distribution of water resources in California, the Bay-Delta has long been the focus of competing interests making...