Plan. & Conserv. League v. Dep't of Water Res.

317 Cal.Rptr.3d 53

PLANNING AND CONSERVATION LEAGUE et al., Plaintiffs and Appellants,

v.DEPARTMENT OF WATER RESOURCES, Defendant and Respondent;

The Metropolitan Water District of Southern California et al., Interveners and Respondents.

Department of Water Resources, Plaintiff and Respondent,

v.The California Water Impact Network et al., Defendants and Appellants;

The Metropolitan Water District of Southern California et al., Interveners and Respondents.

North Coast Rivers Alliance et al., Plaintiffs and Appellants,

v.Department of Water Resources, Defendant and Respondent;

The Metropolitan Water District of Southern California et al., Interveners and Respondents.

C096304

C096316

C096384

Court of Appeal, Third District.

Filed January 5, 2024

As Modified on Denial of Rehearing

January 25, 2024

APPEAL from a judgment of the Superior Court of Sacramento County, Kevin R. Culhane, Judge. Affirmed. (Super. Ct. Nos. 34201980003053CUWMGDS), (Super. Ct. No. 34201800246183CUPTGDS), (Super. Ct. No. 34201980003047CUWMGDS)

Law Office of Roger B. Moore and Roger B. Moore for Plaintiffs and Appellants in No. C096304.

Law Offices of Stephan C. Volker, Stephan C. Volker, San Francisco, Alexis E. Krieg, Stephanie L. Clarke and Jamey M.B. Volker, Berkeley, for Plaintiffs and Appellants and for Defendants and Appellants North Coast Rivers Alliance, Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association and Winnemem Wintu in Nos. C096316 and C096384.

Law Office of Adam Keats, Adam Keats, Joshua Tree; John Buse; Law Office of E. Robert Wright and E. Robert Wright for Defendants and Appellants California Water Impact Network, AquAlliance, California Sportfishing Protection Alliance, Center for Biological Diversity, Friends of the River and Planning and Conservation League.

Freeman Firm, Thomas H. Keeling; Law Office of Roger B. Moore and Roger B. Moore for Defendants and Appellants County of San Joaquin, County of Contra Costa, Contra Costa County Water Agency, County of Solano, County of Yolo, County of Butte, County of Plumas, Plumas County Flood Control and Water Conservation District and Central Delta Water Agency.

Rob Bonta, Attorney General, Robert W. Byrne, Assistant Attorney General, Eric M. Katz, Ryan R. Hoffman, L. Elizabeth Sarine and Janelle Smith, Deputy Attorneys General, for Plaintiff and Respondent and for Defendant and Respondent Department of Water Resources.

Marcia L. Scully, Los Angeles, John D. Schlotterbeck, Robert C. Horton; Best Best & Krieger, Amy E. Hoyt, Riverside, Miles Krieger, Riverside; Redwine and Sherrill, Steven B. Abbott, Riverside; J. Carlos Orellana, San Jose; Hanson Bridgett, Adam Hofmann, Sacramento; Meyers Nave, Gregory J. Newmark, Los Angeles; Amelia Minaberrigarai; Nossaman and Paul S. Weiland, Irvine, for Interveners and Respondents.

MESIWALA, J.

This consolidated appeal presents another chapter in California’s long and contentious water supply story. The case centers on the Department of Water Resources’s (department) approval of amendments to long-term contracts with local government agencies that receive water through the State Water Project. The original contracts were executed in the 1960s with 75-year terms ending between 2035 and 2042. The amendments extend the contract terms to 2085 and make other changes to the contracts’ financial provisions, including expanding the facilities listed as eligible for revenue bond financing.

After reviewing the amendments under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and determining they would not have an environmental impact, the department filed an action to validate the amendments. Several conservation groups and public agencies (collectively, appellants) either answered with affirmative defenses or brought separate actions challenging the amendments. In a coordinated proceeding, the trial court ruled in favor of the department.

Appellants contend the trial court erred. Specifically, they contend the amendments violate three laws: CEQA, the Sacramento-San Joaquin Delta Reform Act (Delta Reform Act), and the public trust doctrine. Some appellants contend validation is improper for additional reasons. We disagree and affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

I California’s Water Supply

The problems surrounding California’s water supply are well-documented in California jurisprudence. The story is one of " ‘uneven distribution of water resources’ by region and season." (San Diego County Water Authority v. Metropolitan Water Dist of Southern California (2017) 12 Cal. App.5th 1124, 1131, 220 Cal.Rptr.3d 346 (San Diego County Water Authority).) Precipitation varies widely from year to year, most of the precipitation occurs in the winter while demand is highest in the summer, and most of the rain and snow falls in the north while the highest demand for Water arises in the south. (Ibid.) To address this water distribution problem, California has established an "extensive water supply system to store and move water where and when it is needed." (Ibid.) "This water supply system is managed by a network of agencies on federal, state, regional and local levels.", (Ibid.) An important component of that system is the Sacramento-San Joaquin Delta (Delta).

II The Delta

The Delta is formed by the confluence of the state’s two largest rivers. (Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 564, 293 Cal.Rptr.3d 910 (DWR Environmental Impact Cases).) "The bounded area is roughly triangular, with Sacramento at the north, Vernalis at the south[,] and Pittsburg at the west." (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 107, 227 Cal.Rptr. 161; see Wat. Code, § 12220 [legal boundaries].)

The Delta is the "most valuable estuary and wetland ecosystem on the west coast of North and South America." (Delta Stewardship Council Cases (2020) 48 Cal. App.5th 1014, 1027, 262 Cal.Rptr.3d 445.) It provides "habitat for a vast array of aquatic and terrestrial species [and] offers a wide variety of recreational activities." (DWR Environmental Impact Cases, supra, 79 Cal.App.5th at p. 565, 293 Cal. Rptr.3d 910.) The Delta also "serves as the hub of California’s water supply infrastructure." (Ibid.) On its southeast edge, a set of pumps for the State Water Project "ex- tract[s] millions of acre-feet of water from the Delta and convey[s] it through a system of reservoirs and canals to other parts of the state" for primarily urban and agricultural uses. (Ibid.)

Thus, the quality of water in the Delta is important to the state’s water supply system, "to other water users in and around the Delta, and to the maintenance and enhancement of fish and wildlife in the Delta." (State, Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 694, 39 Cal.Rptr.3d 189.) "[H]uman modifications to the Delta have promoted California’s economy, but they have also imperiled its ecological health. The Delta is the only saltwater estuary in the world that is used as a conveyance system to deliver fresh water for export. This creates substantial water supply and ecosystem conflicts." (Delta Stewardship Council Cases, supra, 48 Cal.App.5th 1014, 1034, 262 Cal. Rptr.3d 445.)¹

III The State Water Project

The State Water Project is one of "two great water projects aimed at addressing the state’s ‘fundamental water problem.’ " (Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal. App.5th 170, 182, 284 Cal.Rptr.3d 212 (Central Delta).)² In 1960, the voters approved a $1.75 billion general obligation bond measure to build the State Water Project by enacting the Burns Porter Act (Wat. Code, § 12930 et seq; Burns-Porter) and authorizing the sale of Burns-Porter bonds. (Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163, 1170, 1172, 152 Cal.Rptr.3d 845 (Alameda County).)

In 1967, the State Water Project began operations under the management of the department. (State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 693, 39 Cal.Rptr.3d 189.) The State Water Project "‘consists of a series of 21 dams and reservoirs, 5 power plants, and 16 pumping plants [that] stretch from Lake Oroville in Butte County to Lake Perris in Riverside County,’ " (San Diego County Water Authority, supra, 12 Cal. App.5th at p. 1132, 220 Cal.Rptr.3d 346.) Water from the State Water Project flows from the Feather River to the Sacramento River and then into the Delta, where it is lifted by the Delta Pumping Plant into the California Aqueduct that conveys it south. (Goodman v. County of Riverside (1983) 140 Cal.App.3d 900, 903, 190 Cal.Rptr. 7.)

Following an initial period of Burns-Porter bonds, State Water Project capital costs have been financed primarily through the issuance of revenue bonds authorized by the Central Valley Project Act.

(O’Connor, Cal. Research Bur., Issue Summary: Financing the State Water Project (June 1994), pp. 10-11; see Stats. 1933, ch. 1042, § 18; Wat. Code, § 11700.) The Central Valley Project Act requires the department to adopt a resolution authorizing the issuance of bonds to obtain funds for purposes of the act. (Wat. Code, § 11701.) The department adopted a general bond resolution for State Water Project revenue bonds in 1986. (Department of Water Resources, Central Valley Project Water System Revenue Bonds, General Bond Resolution No. DWR-WS-1 (July 1, 1986).) The department has since adopted over 60 supplemental resolutions to the general bond resolution, each authorizing a series of bonds for specific purposes, often for the capital costs of specific State Water Project facilities.

The permits to appropriate water for operation of the State Water Project were issued to the department in 1967. (State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 693, 39 Cal. Rptr.3d 189; State Wat. Resources...