By William W. Abbott

The Delta, the confluence of the Sacramento and San Joaquin rivers, is ground zero in the debate over California water. It seems like everyone has a dog in the fight, including farmers inside and outside of the Delta, municipalities, water contractors, the sport fishing industry and environmentalists. It is a scenario in which it is improbable, if not impossible, to make everyone happy when it comes to the topic of water management. In 1994, CALFED was born as a consortium of 18 federal and state agencies. CALFED’s task was to develop a Delta water management strategy which would positively respond to the multiple competing interests and concerns. In 2000, CALFED certified a programmatic EIR/EIS. Following a timely legal challenge, the trial court in the case entitled In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 upheld the adequacy of that environmental document. (See the Abbott & Kindermann Land Use Law Blog article on that opinion.) The Court of Appeal ruled otherwise, concluding that the EIR was inadequate because of the failure to evaluate an alternative with reduced water exports, the failure to identify future potential sources of water, and the lack of detail on the Environmental Water Account, a program within CALFED. The Supreme Court subsequently granted review and on June 5, 2008, issued an opinion. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (June 5, 2008) 2008 Cal. LEXIS 6737. In this opinion, the Supreme Court affirmed the legal adequacy of the programmatic document.

CALFED is a 30 year management strategy that identifies four primary objectives: improve aquatic and terrestrial habitat; reduce the mismatch between supplies and project beneficial uses; provide good water quality for all beneficial uses; and reduce the risk to infrastructure, economic supplies and the ecosystem from levee failure. All four objectives must be met to achieve the project purpose. Six solution principles were adopted to more closely evaluate the appropriateness of particular strategies. 

In 2005, the Court of Appeal held that the EIR had to consider another alternative which included reduced water export from the Delta. The CALFED process is noteworthy in its extensive stakeholder and public input process. This process generated multiple approaches to Delta water management, an early screening of potential alternatives. Thirty-two (32) approaches generated 100 alternatives which in turn were narrowed to down to ten. The list was further reduced to three basic alternatives, which were the subject of numerous public workshops. Although the reduced export alternative would not meet all of the defined objectives, the Court of Appeal concluded that it was still an appropriate alternative which had to be considered, as it would be responsive to a number of impact considerations and be responsive to the balance of the objectives. 

In the recent opinion, the Supreme Court disagreed with the Court of Appeal, holding that an alternative need not be considered which did not respond to the four stated objectives.[1] The Court drew a very fine line. While an alternative cannot be rejected if it impedes to some degree attainment of the project objectives, it need not be studied if it fails of achieve the project’s “underlying fundamental purpose.” The Court’s holding underscores the need to carefully define the project objective from the outset.

Part of CALFED’s overall strategy was development of water sources, potentially utilizing multiple approaches. These were not examined in the first tier EIR. The appellate court held that water supply was too significant of an issue to be deferred to later. In a ruling important to answering the question of how much information is required by a first tier EIR, the Supreme Court disagreed.

CEQA does not mandate that a first-tier program EIR identify with certainty particular sources of water for second-tier projects that will be further analyzed before implementation during later stages of the program…Similarly, at the first-tier program stage, the environmental effects of obtaining water from potential sources may be analyzed in general terms, without the level of detail appropriate for second-tier, site specific review.

The Court went on to elaborate on the differences between project and programmatic level review. The Court also distinguished CALFED, as a broader policy examination, to more specific development projects such as those found in Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182 and Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412. Thus, the Court’s holding is supportive of broader CEQA analysis at the general plan level, but becomes less useful as land use entitlements become more specific.

With respect to the final remaining issue of the Environmental Water Account, the Supreme Court adopted a similar position and held that the issue of the level of detail was more appropriate for the later CEQA tiers. As long as the first level decision was more of a policy oriented, geographically non-specific evaluation, CEQA does not require that more detailed information be evaluated in the first tier. In an interesting and potentially disastrous case of bad timing, some information regarding the Water Account became available immediately before certification of the first tier EIR. This generated the obvious argument that the EIR had to include this new more detailed information. The Court struck a blow for practicality when it recognized that the agency should not be effectively punished for releasing more current information. Rather, the Court held that if the first tier EIR was not required to consider this information, then the fact that some of the information became available pre-certification did not become a compulsory basis to expand the first tier EIR. 

The Court’s holding affirms the use of tiered CEQA documents. Ideally suited for broad, programmatic-type policy issues, the decision certainly casts favorable light on using programmatic documents in the more traditional land use setting as well. However, as the Court noted, the more specific a land use proposal is, the less freedom the lead agency enjoys not to complete the fuller, more detailed analysis.

Bill Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP 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.

[1]   In fact, due to the extensive number of potential strategies originally screened, CALFED had looked at the reduced export alternative, but did not carry it forward for additional study.