The Supreme Court granted review in this case on January 25, 2006, and the opinion below is no longer citable. See Abbott & Kindermann Land Use Law Blog article for a discussion of the Supreme Court opinion. by Elias E. Guzman and Janell M. Bogue CALFED is an unprecedented collaboration among 18 state and federal agencies and the state’s leading urban, agricultural, and environmental interests. The ultimate goal is to develop a long-term, comprehensive plan that will restore ecological health and improve water management for beneficial uses of the Bay-Delta system, the intricate waterways created at the junction of the San Francisco Bay and the Sacramento and San Joaquin rivers and the watersheds that feed them. After many years of study and analysis, CALFED adopted a program to be administered over the next 30 years. The program includes measures designed to improve the Bay-Delta ecosystem, water quality and quantity, and Delta levee stability. On August 28, 2000, the final Programmatic Environmental Impact Statement/Environmental Impact Report (PEIS/R) was certified and CALFED adopted the Record of Decision (ROD) for the Program in accordance with NEPA and CEQA. Subsequently, three separate cases filed in Sacramento, Fresno, and Orange counties challenged the CALFED Program. These cases were coordinated for trial proceedings before the Superior Court in Sacramento County. After the trial court found the PEIS/R satisfied CEQA and the non-CEQA causes of action were premature or not properly stated, appellants (California Farm Bureau Federation, Central Delta Water Agency, and the Regional Council of Rural Counties) appealed. They primarily argued that the PEIS/R was inadequate and thus did not comply with CEQA. In In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 (review granted by California Supreme Court January 25, 2006), the Third District Court of Appeal rejected most of Appellants challenges to the PEIS/R. However, the appellate court did determine that the PEIS/R was legally insufficient as to three matters. PEIS/R failed to discuss an alternative that would result in less Delta water exports Appellants first argued that the PEIS/R failed to incorporate any alternative that included reduced water exports from the Delta. CALFED countered that it had considered a reduced export alternative, but in light of the projected population growth in southern California and the goal of water supply reliability, those alternatives were discarded. The appellate court disagreed with CALFED and said that the rejection of a reduced exports alternative was premised Aon the false assumption that, for an alternative to be feasible, it must meet all of the Program’s goals. It said that when water supply is insufficient to meet all beneficial uses, choices must be made. The court suggested that an alternative including decreased water exports to the south may slow growth due to water supply limitations. This may result in an environmental benefit by decreasing or eliminating the need for redirection of water from existing beneficial uses or new storage facilities. Because one goal of an EIR is to provide a sufficient range of alternatives to generate a reasoned choice, the State’s restriction of alternatives to only those that included increased water exports from the Delta was impermissible and violated CEQA. PEIS/R failed to adequately analyze the impacts of converting water from potential sources Second, appellants argued that the PEIS/R included as part of the program nearly one million acre feet of water without identifying the sources of the water or impacts from diversion. The State contended that because of the programmatic nature of the EIR, only potential sources need be listed and that later project level reports would analyze the environmental impacts associated with diversion from specific sources. The appellate court was not persuaded by CALFED’s argument and held:

“In light of the overarching importance of water to the success of the CALFED Program, merely listing potential sources of water, indicating that the ultimate source determination will be made later, and deferring CEQA analysis of the need to provide water to the Program violates the PEIS/R’s basic informational purpose.”

The court said that the PEIS/R did not address the impacts of potential water sources and because the sources were uncertain, the impacts of the entire program were uncertain. AA project description that omits integral components of the project may result in an EIR that fails to disclose the actual impacts of the project. (citing Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20.) The court said that the Program depended upon the availability of water and thus the PEIS/R must include an analysis of the impacts generated by potential sources. PEIS/R failed to include significant information relating to Environmental Water Account Appellants lastly challenged the environmental water account (EWA). The EWA is part of the water transfer program created to bank excess water when supplies are available. Its purpose is to provide water protection and recovery of fish beyond that which is available through existing regulatory means while avoiding the necessity of reducing exports to other beneficial users. Appellants contended that the commitment to use the EWA as a means of meeting Program goals while deferring the impact analysis would result in a lack of any meaningful environmental review. The state said that only a general level of detail was needed in the PEIS/R. The court agreed with the appellants and held that an EIR must contain enough project detail to provide the information required to intelligently choose an action that considers the environmental consequences of the project. The PEIS/R contained very little analysis of the EWA and described no mitigation measures or alternatives. The court emphasized that the use of a programmatic EIR is not an excuse to defer analysis of the significant impacts of a program. The appellate court remanded the case to the trial court with instructions to grant the petitions for writ of mandate vacating the certification of the PEIS/R and adoption of the ROD. Significance Programmatic EIRs have offered a strategic advantage because they require less detail. EIR preparers have struggled lately in determining how much detail is enough. This case moves toward defining the shadowy contours of an adequate programmatic document. Elias E. Guzman is an associate and Janell M. Bogue is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.