Aqualliance et al v. U.S. Bureau of Reclamation, et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.July 15, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DANIEL J. O’HANLON, State Bar No. 122380 HANSPETER WALTER, State Bar No. 244847 REBECCA R. AKROYD, State Bar No. 267305 ELIZABETH L. LEEPER, State Bar No. 280451 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 400 Capitol Mall, 27th Floor Sacramento, California 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 JON D. RUBIN, State Bar No. 196944 General Counsel SAN LUIS & DELTA-MENDOTA WATER AUTHORITY 400 Capitol Mall, 27th Floor Sacramento, CA 95814 Telephone: (916) 321-4519 Facsimile: (209) 826-9698 ANDREA A. MATARAZZO, State Bar No. 179198 JEFFREY K. DORSO, State Bar No. 219379 PIONEER LAW GROUP, LLP 1122 S Street Sacramento, CA 95814 Telephone: (916) 287-9500 Facsimile: (916) 287-9515 Attorneys for Defendant/Respondent, San Luis & Delta-Mendota Water Authority UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA AQUALLIANCE, ET AL., Plaintiffs and Petitioners, v. The UNITED STATES BUREAU OF RECLAMATION; SAN LUIS & DELTA- MENDOTA WATER AUTHORITY; SALLY JEWELL, in her official capacity; and DOES 1 -100, Defendants and Respondents. Case No. 1:15-cv-00754-LJO-BAM MEMORANDUM IN SUPPORT OF SAN LUIS & DELTA-MENDOTA WATER AUTHORITY’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Judge: Hon. Lawrence J. O’Neill Date: No Hearing Set Time: No Hearing Set Crtrm.: No Hearing Set Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 1 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 i MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................................1 II. STATEMENTS OF FACTS ..................................................................................................1 A. Water Transfers Are a Key Element of California Water Management. ...................1 B. Water Transfers Are Highly Regulated Transactions. ...............................................2 C. The Water Authority and Reclamation Voluntarily Prepared the EIS/EIR to Analyze Impacts of a Defined Range of Potential Water Transfers. .........................4 III. SCOPE AND STANDARD OF REVIEW ............................................................................5 IV. ARGUMENT .........................................................................................................................7 A. The Project Description Is Clear, Complete, and Finite. ...........................................7 1. The EIS/EIR Describes a Defined Range of Water Transfers Regulated by Reclamation, Whose Annual Process Accounts for the Unavoidable Uncertainty of Variable Conditions. .........................................9 2. Carriage Water Is Calculated Through Regular Operation of CVP Facilities and Is an Inherent Component of Water Transfers. ......................10 B. The EIS/EIR Properly Defines Existing Groundwater Conditions. .........................12 C. The EIS/EIR Fully Discloses Reasonably Foreseeable Project Impacts. .................14 1. The EIS/EIR Analyzes and Discloses Potentially Significant Impacts Related to Groundwater Levels. ...................................................................15 2. The EIS/EIR Properly Accounts for Potential Climate Change. .................17 3. The EIS/EIR Fully Analyzes Potential Water Quality Impacts. ..................18 4. The EIS/EIR Properly Analyzes Impacts to Giant Garter Snake. ................19 5. The EIS/EIR Adequately Analyzes Potential Impacts to Biological Resources Associated with Delta Outflow. ..................................................20 D. Substantial Evidence Supports the Agencies’ Conclusions that the Adopted Mitigation Measures Are Effective and Enforceable. ..............................................21 1. The EIS/EIR Identifies, and the Agencies Adopted, Effective and Legally Enforceable Mitigation Measures. ..................................................22 2. Implementation of Mitigation Measure GW-1 Ensures Sufficient Monitoring and Data to Avoid Significant Environmental Effects. .............23 3. Mitigation Measures GW-1 and WS-1 Include Appropriate and Realistic Guidance that Ensures Effectiveness. ...........................................25 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 2 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 ii MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (a) Mitigation Measure GW-1 Ensures Impacts on Other Water Users Are Not Significant. ...............................................................27 (b) Mitigation Measure GW-1 Ensures Impacts Related to Land Subsidence Are Not Significant. ......................................................28 (c) Mitigation Measures GW-1 and WS-1 Ensure Impacts from Streamflow Depletion Are Not Significant. .....................................29 4. Recirculation Is Not Required Because the Final EIS/EIR Does Not Add Significant New Information. ...............................................................30 E. The EIS/EIR Evaluates a Reasonable Range of Alternatives. .................................32 1. The EIS/EIR’s Alternatives Were Properly Developed and Selected Based on the Project’s Objectives. ...............................................................32 2. The Alternatives Examined in the EIS/EIR Represent a Reasonable Range Consistent With CEQA Standards. ...................................................32 F. The Water Authority Is a Proper Lead Agency. .......................................................33 G. The Agencies’ Environmental Review and Determinations Are Consistent with the Public Trust Doctrine. ................................................................................35 H. Plaintiffs’ ESA Claims Against Reclamation and the U.S. Fish and Wildlife Service Should Be Rejected. ....................................................................................36 1. The Court Lacks Jurisdiction to Hear Plaintiffs’ ESA Claim Against Reclamation Because Plaintiffs Failed to Comply with ESA Notice Requirements. ...............................................................................................36 2. Plaintiffs’ ESA Claim against the U.S. Fish & Wildlife Service Fails Because USFWS Adequately Justifies and Supports the Programmatic BiOp with the Best Scientific and Commercial Data Available. .....................................................................................................37 (a) USFWS Adequately Justifies the Programmatic BiOp’s Conservation Measures. ..................................................................38 (b) Changes Between the Final Programmatic BiOp and the April 2015 Programmatic BiOp It Replaced Do Not Establish Arbitrary or Capricious Action by USFWS. ....................39 V. CONCLUSION ....................................................................................................................40 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 3 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 iii MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES Page(s) Federal Cases American Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118 (9th Cir. 1997) ....................................................................................................39 Bennett v. Spear, 520 U.S. 154 (1997) .............................................................................................................37, 38 City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir. 1997) ......................................................................................................6 Ctr. for Envtl. Science, Accuracy & Reliability v. Cowin, No. 1:15-cv-00884 LJO BAM, 2015 WL 543050 (E.D. Cal. Sept. 14, 2015) ...........................37 Forest Guardians v. Johanns, 450 F.3d 455 (9th Cir. 2006) ......................................................................................................37 Friant Water Auth. v. Jewell, 23 F. Supp. 3d 1130 (E.D. Cal. 2014) ........................................................................................11 Hawaii Cnty. Green Party v. Clinton, 124 F. Supp. 2d 1173 (D. Haw. 2000) .......................................................................................37 Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) ....................................................................................................38 Lone Rock Timber Co. v. U.S. Dep’t of Interior, 842 F. Supp. 433 (D.Or. 1994) ...................................................................................................36 S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., 629 F. Supp. 2d 1123 (E.D. Cal. 2009) ......................................................................................37 Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000) .....................................................................................................38 Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998) ................................................................................................36, 40 California Cases Bakersfield Citizens v. City of Bakersfield, 124 Cal.App.4th 1184 (2004) .................................................................................................6, 18 In re Bay-Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 43 Cal.4th 1143 (2008) ...............................................................................................................32 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 4 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 iv MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Beverly Hills Unified Sch. Dist. v. Los Angeles Cnty. Metro. Transp. Auth., 241 Cal.App.4th 627 (2015) .......................................................................................................31 Cadiz Land Co. v. Rail Cycle, 83 Cal.App.4th 74 (2000) ...........................................................................................................29 Cherry Valley Pass Acres & Neighbors v. City of Beaumont, 190 Cal.App.4th 316 (2010) .......................................................................................................32 Citizens for a Sustainable Treasure Island v. City and Cnty. of San Francisco, 227 Cal.App.4th 1036 (2014) .........................................................................................22, 25, 29 Citizens Opposing a Dangerous Env’t v. Cnty. of Kern, 228 Cal.App.4th 360 (2014) .......................................................................................................22 City of Hayward v. Cal. State Univ., 242 Cal.App.4th 833 (2015) ...........................................................................................23, 26, 30 City of Irvine v. Cnty. of Orange, 238 Cal.App.4th 526 (2015) ...................................................................................................7, 31 City of Maywood v. Los Angeles Unified Sch. Dist., 208 Cal.App.4th 362 (2012) ...........................................................................................26, 30, 32 Clover Valley Found. v. City of Rocklin, 197 Cal.App.4th 200 (2011) .................................................................................................20, 26 Cnty. of Amador v. El Dorado Cnty. Water Agency, 76 Cal.App.4th 931 (1999) .........................................................................................................13 Cnty. San. Dist. No. 2 v. Cnty. of Kern, 127 Cal.App.4th 1544 (2005) .....................................................................................................35 CREED v. City of San Diego Redev. Agency, 134 Cal.App.4th 598 (2005) .........................................................................................................7 Ctr. for Biological Diversity v. Cnty. of San Bernardino, 247 Cal.App.4th 326 (2016) .......................................................................................................35 Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, 234 Cal.App.4th 214 (2015) .................................................................................................10, 26 Defend the Bay v. City of Irvine, 119 Cal.App.4th 1261 (2004) .................................................................................................6, 23 Del Mar Terrace Conservancy v. San Diego, 10 Cal.App.4th 712 (2004) ...........................................................................................................5 Dry Creek Citizens v. Cnty. of Tulare, 70 Cal.App.4th 20 (1999) .............................................................................................................7 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 5 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 v MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Endangered Habitats League v. City of Orange, 131 Cal.App.4th 777 (2005) ...........................................................................................25, 26, 29 Fed’n of Hillside & Canyon Ass'ns v. City of Los Angeles, 83 Cal.App.4th 1252 (2000) .......................................................................................................22 Gray v. Cnty. of Madera, 167 Cal.App.4th 1099 (2008) .....................................................................................................26 Historic Amador Waterways v. Amador Water Agency, 116 Cal.App.4th 1099 (2004) .....................................................................................................19 Laurel Heights Imp. Ass’n v. Regents of Univ. of Cal., 6 Cal.4th 1112 (1993) .............................................................................................................5, 31 Laurel Heights Imp. Ass’n v. Univ. of Cal., 47 Cal.3d 376 (1988) .......................................................................................................... passim Lotus v. Dep’t of Transp., 223 Cal.App.4th 645 (2014) .....................................................................................11, 12, 19, 20 N. Coast Rivers Alliance v. Marin Mun. Water Dist., 216 Cal.App.4th 614 (2013) ...........................................................................................13, 20, 26 Neighbors for Smart Rail v. Expo. Metro Line, 57 Cal.4th 439 (2013) ...........................................................................................................13, 15 Paulek v. Dep’t of Water Res., 231 Cal.App.4th 35 (2014) ...........................................................................................................5 PCL v. Castaic Lake Water Agency, 180 Cal.App.4th 210 (2009) .....................................................................................10, 33, 34, 35 PCL v. Dep’t of Water Res., 83 Cal.App.4th 892 (2000) .........................................................................................................35 Rialto Citizens v. City of Rialto, 208 Cal.App.4th 899 (2012) .......................................................................................................28 Riverwatch v. San Diego, 76 Cal.App.4th 1428 (1999) ............................................................................................... passim Sacramento Old City Ass’n v. City Council, 229 Cal.App.3d 1011 (1991) ....................................................................................22, 23, 25, 29 San Diego Citizenry Grp. v. Cnty. of San Diego, 219 Cal.App.4th 1 (2013) .............................................................................................................6 San Francisco Baykeeper v. State Lands Comm’n, 242 Cal.App.4th 202 (2015) .....................................................................................14, 20, 32, 36 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 6 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 vi MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Santa Monica Baykeeper v. City of Malibu, 193 Cal.App.4th 1538 (2011) .......................................................................................................6 Save Cuyama Valley v. Cnty. of Santa Barbara, 213 Cal.App.4th 1059 (2013) ............................................................................................. passim Save Our Peninsula Comm. v. Monterey Cnty., 87 Cal.App.4th 99 (2001) ...........................................................................................................13 Save Panoche Valley v. San Benito Cnty., 217 Cal.App.4th 503 (2013) .......................................................................................................23 Save Round Valley v. Cnty. of Inyo, 157 Cal.App.4th 1437 (2007) .......................................................................................................7 Schaeffer Land Trust v. San Jose City Council, 215 Cal.App.3d 612 (1989) ........................................................................................................10 SCOPE v. City of Santa Clarita, 197 Cal.App.4th 1042 (2011) .......................................................................................................6 Sierra Club v. City of Orange, 163 Cal.App.4th 523 (2008) .....................................................................................................7, 9 Sierra Club v. West Side Irrigation Dist., 128 Cal.App.4th 690 (2005) ...................................................................................................5, 17 Tracy First v. City of Tracy, 177 Cal.App.4th 912 (2009) .................................................................................................22, 33 Vineyard Area Citizens v. City of Rancho Cordova, 40 Cal.4th 412 (2007) ......................................................................................................... passim Federal Statutes Administrative Procedure Act, 5 U.S.C. § 500 .....................................................................................................................................37, 38 Central Valley Project Improvement Act, Title XXXIV, Pub. L. No. 102-575, 106 Stat. 4700 (1992) § 3405 ...........................................................................................................................................3 § 3405(a)(1) ..................................................................................................................................3 § 3405(a)(1)(H) ............................................................................................................................3 Endangered Species Act, 16 U.S.C. § 1531 ...................................................................................................................................21, 36 § 1536(a)(2) ..........................................................................................................................38, 40 § 1540(g) ....................................................................................................................................36 § 1540(g)(2)(A)(i) ......................................................................................................................36 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 7 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 vii MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT National Environmental Policy Act, 42 U.S.C. § 4321 (1970) ...........................................................................................................................4, 6 California Statutes Cal. Pub. Res. Code § 21000 .........................................................................................................................................1 § 21001 .........................................................................................................................................1 § 21002.1(a) ...............................................................................................................................21 § 21065 .......................................................................................................................................19 § 21067 .................................................................................................................................33, 34 § 21068 .......................................................................................................................................19 § 21081.6(a) ...............................................................................................................................22 § 21081.6(b) ...............................................................................................................................22 § 21100(b)(3) ..............................................................................................................................21 § 21166 .......................................................................................................................................10 § 21168.5 ......................................................................................................................................6 Cal. Wat. Code § 109 ...........................................................................................................................................34 § 1435 .........................................................................................................................................11 California Regulations Cal. Code Regs., Title 14 § 15000 .........................................................................................................................................6 § 15051(a) ............................................................................................................................34, 35 § 15060(c)(2) ..............................................................................................................................19 § 15064 .......................................................................................................................................19 § 15064(b) ............................................................................................................................19, 20 § 15064(d) ..................................................................................................................................19 § 15064(d)(3) ..............................................................................................................................29 § 15088.5 ..............................................................................................................................31, 32 § 15088.5(a) ...............................................................................................................................31 § 15088.5(a)(4) ...........................................................................................................................32 § 15088.5(b) ...............................................................................................................................31 § 15097 .......................................................................................................................................22 § 15124 ...................................................................................................................................7, 17 § 15124(b) ..................................................................................................................................32 § 15125 .................................................................................................................................13, 19 § 15126.2 ....................................................................................................................................13 § 15126.2(a) ...............................................................................................................................16 § 15126.4(a)(1) ...........................................................................................................................21 § 15126.4(a)(1)(A) .........................................................................................................12, 19, 20 § 15126.4(a)(1)(B) .........................................................................................................24, 25, 26 § 15126.4(a)(2) ...........................................................................................................................22 § 15126.6 ....................................................................................................................................33 § 15126.6(a) ...............................................................................................................................32 § 15130 .........................................................................................................................................9 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 8 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 viii MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT § 15143 .......................................................................................................................................16 § 15144 ...................................................................................................................................7, 17 § 15145 ...........................................................................................................................17, 28, 29 § 15151 ...............................................................................................................................6, 9, 21 § 15160 .........................................................................................................................................7 § 15165 .........................................................................................................................................5 § 15168(c) ..................................................................................................................................10 § 15168(c)(2) ..............................................................................................................................10 § 15204(a) ....................................................................................................................................9 § 15355 .........................................................................................................................................9 § 15367 .......................................................................................................................................34 § 15370 ...........................................................................................................................21, 24, 29 § 15370(b) ..................................................................................................................................21 § 15370(c) ..................................................................................................................................29 § 15378 .........................................................................................................................................5 § 15378(a) ..................................................................................................................................19 § 15382 .......................................................................................................................................19 Cal. Code Regs., Title 23 § 805 ...........................................................................................................................................11 § 806 ...........................................................................................................................................11 Other Authorities 50 C.F.R. § 402.14(g)(8) ..................................................................................................................38 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2016) § 14.7, p. 14-9 ............................................................................................29 Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 9 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 ix MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT TABLE OF DEFINED TERMS AND ABBREVIATIONS Agencies: Lead Agencies U.S. Bureau of Reclamation and San Luis & Delta-Mendota Water Authority, together APA: Administrative Procedure Act, 5 U.S.C. § 500 et seq. (1946) AR: Administrative Record BMO: Basin Management Objectives CAR: CEQA AR Castaic: Castaic Lake Water Agency CDFW: California Department of Fish and Wildlife CEQA: California Environmental Quality Act cfs: Cubic Feet per Second CVP: Central Valley Project CVPIA: Central Valley Project Improvement Act, Title XXXIV, Pub. L. No. 102-575, 106 Stat. 4700 (1992) Delta: Sacramento-San Joaquin Delta DWR: California Department of Water Resources EIR: Environmental Impact Report EIS/EIR: Long-Term Water Transfers Environmental Impact Statement/Environmental Impact Report ESA: Endangered Species Act, 16 U.S.C. § 1531 et seq. GGS: Giant Garter Snake GMPs: Groundwater Management Plans Guidelines: CEQA Guidelines, Cal. Code Regs., tit. 14, § 15000 et seq. MAF: Million Acre-Feet NEPA: National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970) NDO: Net Delta Outflow Programmatic BiOp: Programmatic Formal Consultation for Bureau of Reclamation’s Proposed Central Valley Project Long Term Water Transfers (2015-2024) with Potential Effects on the Giant Garter Snake within Sacramento Valley, California Reclamation: U.S. Bureau of Reclamation RPA: Reasonable and Prudent Alternative SWP: State Water Project SWRCB 1641: State Water Resources Control Board Decision 1641 USFWS: U.S. Fish and Wildlife Service Water Authority: San Luis & Delta-Mendota Water Authority Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 10 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 1 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION The California Environmental Quality Act (“CEQA”) applies to the discretionary actions of California public agencies. Cal. Pub. Res. Code §§ 21000, 21001. Water transfers among willing buyers and sellers are independent discretionary actions regulated through multi-agency collaboration at the local, state, and federal levels. No single government agency has overarching authority regarding water transfers. The San Luis & Delta-Mendota Water Authority (“Water Authority”), fully recognizing the reality of a multi-agency process and the challenges presented by variables of weather and hydrology, regulations, biological opinions, and operational logistics, joined with the U.S. Bureau of Reclamation (“Reclamation”) to prepare the Long-Term Water Transfers Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”) to facilitate responsible water transfers to Central Valley Project (“CVP”) contractors when circumstances allow. The Water Authority and Reclamation’s (together, “Agencies”) joint EIS/EIR is an informational opportunity otherwise unavailable to Plaintiffs or anyone else, which benefits all interested parties. In undertaking systematic and comprehensive review of a defined range of potential water transfer activities over the long term, the Water Authority has proceeded with great care and caution to ensure that any potentially significant adverse impacts resulting from such transfers are disclosed and mitigated. The administrative record shows that the Water Authority undertook this process with the diligence CEQA demands. The record likewise makes clear that Plaintiffs oppose north-south water transfers, and no amount or type of environmental review will redress their policy objections. Viewed, as they must be, in light of the whole record, Plaintiffs’ attacks on the EIS/EIR are insupportable and unfair. A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims such as those Plaintiffs assert here. The Water Authority therefore respectfully requests that the Court deny Plaintiffs’ motion for summary judgment and grant Federal Defendants’ and the Water Authority’s cross-motions for summary judgment. II. STATEMENTS OF FACTS A. Water Transfers Are a Key Element of California Water Management. Water transfers are a critically important tool for resource planning and management in California. See Administrative Record (“AR”) 21575-83, 25367, 25441-43, 82710. California’s Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 11 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 2 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT water supply is variable by nature and is affected by hydrologic conditions, climatic variability, consumptive use within the watershed, and regulatory requirements. AR 25367. Particularly in times of drought and water shortages, water suppliers rely on water transfers to temporarily move water from a willing seller to a willing buyer to help serve existing demand. AR 25367, 25375; see AR 136199-200. “Water transfers are one of the critical elements integrated into the California Water Action Plan . . . ” AR 27450. Federal and state water policies promote water transfers as an effective incentive for improved water management. See CEQA AR (“CAR”) 53-66, 160, 456; AR 25435, 27450, 151500. During California’s current multi-year drought, the Governor issued emergency proclamations and executive orders recognizing the importance of transfers for effective water management, which included provisions to streamline the transfer process. CAR 452-54; AR 27450. An efficient transfer process helps ensure that water suppliers can respond to changes in hydrologic conditions and water availability by acquiring supplemental water supplies to alleviate water shortages. See AR 25368. Many transfers are time sensitive and expediting the review and approval of water transfers helps move water to where it is needed most. See CAR 427. The transfer approval process is involved and complex, however. CAR 426; AR 25440. Parties participating in or reviewing transfers spend significant resources to complete environmental documents that cover transfers for a single year or a few years. See CAR 469 (satisfying “the environmental documentation compliance requirements is typically the critical path that drives how long the [transfer] approval process will take”); see also CAR 476; AR 25440. One way to expedite transfers is to conduct environmental review for a category of transfers that share certain characteristics that are relevant to their potential environmental impacts. See CAR 169; AR 21588, 25440-41. A more comprehensive environmental review over a longer timeframe streamlines the environmental review process, can make water transfers more readily implementable, especially when hydrologic conditions and available pumping capacity are unknown until right before the transfer season, and allows those transfers to proceed without significant environmental impacts. See AR 25440-41. B. Water Transfers Are Highly Regulated Transactions. Water transfers, particularly transfers involving water conveyed through the Sacramento-San Joaquin Delta (“Delta”), are highly regulated and subject to layers of governmental oversight and Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 12 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 3 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT approval. See AR 25507-09, 127708, 136201. The type of water involved and the facilities necessary to convey it determine which regulatory approvals are needed. See CAR 471-73; AR 127711, 127709. Transfers conveyed through the Delta are governed by water right terms and conditions, including terms intended to protect beneficial uses; applicable pumping limitations; reservoir storage capacity; and statutory and regulatory requirements. See generally CAR 67-150; AR 25375. Under the Central Valley Project Improvement Act, Title XXXIV, Pub. L. No. 102-575, 106 Stat. 4700, § 3405 (1992) (“CVPIA”), water transfers involving CVP water are subject to Reclamation’s review and approval, and transfers involving more than 20 percent of the participating CVP contractor’s contract amount must be consistent with specified state and federal laws. See CAR 53-66, 89, 123-25, 468, 476, 2864; AR 25436; CVPIA § 3405(a)(1). Such transfers can have no “significant adverse effect” on Reclamation’s ability to deliver water for fish and wildlife purposes. AR 25436; CVPIA § 3405(a)(1)(H). Biological opinions on the coordinated operations of the CVP and State Water Project (“SWP”) also seek to protect certain fish species and limit the time period and quantity for through-Delta transfers using CVP or SWP facilities. AR 25375, 25436-38.1 Under the current regulatory framework, no single California public agency has regulatory responsibility for reviewing and approving all transfers in the state. AR 27421. “Water transfers are voluntary actions proposed by willing buyers and sellers, and are not initiated by state agencies.” AR 27422. In all instances, however, the potential transfers analyzed in the EIS/EIR would be subject to individual review and approval. AR 25443-44. Buyers and sellers must submit CVP transfer proposals to Reclamation for evaluation based on a real-time assessment of hydrologic conditions, regulatory requirements, and other operational limitations to ensure a responsible transfer; transfers 1 Water transfer proposals with Sellers that are members of the State Water Contractors (“SWC”) or that require use of SWP facilities must also be submitted to the California Department of Water Resources (“DWR”). AR 25444, 136212. For transfer water from SWC and/or conveyed through SWP facilities, DWR must determine if the transfer can be made without injuring any legal user of water and without unreasonably affecting fish, wildlife, or other instream beneficial uses. AR 25444. In addition, water transfers may be subject to local government requirements. AR 25508. Some counties have requirements related to transferring water outside of the county, primarily related to groundwater extraction. Id. Reclamation requires transfer participants to comply with local government requirements. Id. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 13 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 4 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT involving non-CVP facilities or contractors are subject to similar evaluation. CAR 56-63, 325, 426, 432, 2305-06; AR 14788, 14844, 14861, 14881-92, 14894-95, 25443-44, 26330. C. The Water Authority and Reclamation Voluntarily Prepared the EIS/EIR to Analyze Impacts of a Defined Range of Potential Water Transfers. Reclamation and the Water Authority prepared the EIS/EIR to facilitate voluntary water transfers to CVP contractors and thereby improve flexibility to help meet annual water demand during periods of shortage. CAR 434, 457, 2362-63, 2912-14; AR 14844. The EIS/EIR therefore describes a finite range of potential transfers, enabling careful study of the impacts of those activities while allowing flexibility to respond to the annual variables of hydrology and facility operations associated with specific applications. AR 14788, 14861-62, 14896; see AR 26399-490. The purpose of the EIS/EIR is to “provide a streamlining tool by providing a comprehensive, long-range, project-level view of the potential environment impacts associated with a range of potential transfer activities over a ten-year period, to both expedite approval of water transfers and to reduce participant uncertainty.” AR 27451. By volunteering to analyze a range of potential transfers to CVP contractors, all subject to annual review and approval by Reclamation and/or DWR, the Agencies and the public gained an opportunity for comprehensive and systematic evaluation of water transfers that was otherwise not available. AR 14861-62, 25441, 27450-52. In their past criticisms of the transfer process, Plaintiffs have repeatedly urged that the Agencies prepare a “long-term” EIS/EIR rather than one-year assessments. AR 14858, 26356, 27869- 70. In response to such comments, as well as to streamline and facilitate the process for reviewing water transfers and plan more efficiently for water shortages, Reclamation and the Water Authority undertook a comprehensive review process voluntarily. AR 14844-45, 14858, 14861, 25367-68, 25425, 27421, 27450-51, 27510-11. Neither the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970) (“NEPA”) nor CEQA required such review in light of the independent character and utility of each of the transfers possible or proposed each year. CAR 434, 438; AR 27451, 27510- 11.2 The Water Authority had no obligation to undertake comprehensive review, nor did DWR or any 2 Related actions may be treated as separate projects under NEPA and CEQA if they are of Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 14 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 5 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT other agency. AR 14853-57, 14861-62, 27421-22. Not only did Reclamation and the Water Authority voluntarily provide a comprehensive long- term analysis of transfers otherwise unavailable, the EIS/EIR offers additional advantages by ensuring consideration of “big picture” issues that might be slighted in a case-by-case analysis. AR 14858, 25443-44, 26353-57, 26402; see also AR 26345-398, 26399-489. The EIS/EIR also allows the Agencies to consider mitigation for the range of potential activities at an early time when they have greater flexibility to coordinate the efforts of potential buyers and sellers and deal with basic problems or cumulative impacts. AR 26402, 27451. The Agencies have recognized, both before and throughout the EIS/EIR process, that ensuring responsible transfers involves time-, location-, and circumstance-specific questions for which data is frequently not available in advance; it must instead be developed and verified at the time the transfer proposals are being considered. See, e.g., CAR 432; AR 14844-45, 14858, 14861-62, 14896, 25425, 25444, 27451, 27510-11. The EIS/EIR analyzes a range of transfers already subject to layers of regulation in addition to the Agencies’ adopted mitigation measures – assuring transparency and accountability for each transfer as it is proposed. CAR 06, 22-34, 38-43, 432; AR 14844-45, 14858, 14861-62, 14896, 25378-89, 25425, 25444, 27451, 27510-11. By volunteering to analyze a range of potential transfers to CVP contractors, all subject to annual review and approval by Reclamation and/or DWR, the Agencies seized an opportunity for comprehensive review and mitigation that might otherwise be lost. AR 14861-62, 27450-52. III. SCOPE AND STANDARD OF REVIEW Review of this CEQA claim is based on an “abuse of discretion” standard. Laurel Heights Imp. Ass’n v. Regents of Univ. of Cal., 6 Cal.4th 1112, 1132-33 (1993) (“Laurel Heights II”). Plaintiffs must demonstrate that the agency has not proceeded in a manner required by law or that the independent utility. Del Mar Terrace Conservancy v. San Diego, 10 Cal.App.4th 712, 732 (2004); Paulek v. Dep’t of Water Res., 231 Cal.App.4th 35 (2014), 45-48. Water transfers are exactly these types of independent actions. Cal. Code Regs., tit. 14, §§ 15165, 15378; Sierra Club v. West Side Irrigation Dist., 128 Cal.App.4th 690, 699-700 (2005) (independent and distinct water transfers are properly reviewed separately – even if they involve similar agencies, locations, and purposes). An agency still may elect to complete a single EIS/EIR for separate projects where there is a reasonable basis for doing so. Paulek, 231 Cal.App.4th at 47-48 (agency may separately review several similar projects that do not comprise a single larger project, or review them together, in its discretion). Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 15 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 6 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT determination is not supported by substantial evidence. Cal. Pub. Res. Code § 21168.5. The agency’s decision is given substantial deference and presumed correct. Santa Monica Baykeeper v. City of Malibu, 193 Cal.App.4th 1538, 1546 (2011). The court “does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.” Laurel Heights Imp. Ass’n v. Univ. of Cal., 47 Cal.3d 376, 392 (1988) (“Laurel Heights I”). “An error in procedure by itself is not the basis for an adverse judicial determination. There must be a prejudicial abuse of discretion. ‘[T]here is no presumption that error is prejudicial.’” San Diego Citizenry Grp. v. Cnty. of San Diego, 219 Cal.App.4th 1, 13 (2013) (“Citizenry”). Where the agency makes substantive factual conclusions, the court may not set aside the agency’s approval of an environmental impact report (“EIR”) on the ground that an opposite conclusion would have been equally or more reasonable. Vineyard Area Citizens v. City of Rancho Cordova, 40 Cal.4th 412, 435 (2007) (“Vineyard”). “The agency is the finder of fact and [courts] must indulge all reasonable inferences from the evidence that would support the agency’s determinations and resolve all conflicts in the evidence in favor of the agency’s decision.” SCOPE v. City of Santa Clarita, 197 Cal.App.4th 1042, 1050 (2011). The substantial evidence test “applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” Bakersfield Citizens v. City of Bakersfield, 124 Cal.App.4th 1184, 1198 (2004). The issue for a reviewing court is not whether substantial evidence in the record supports any of the challengers’ assertions, but whether substantial evidence supports the agency’s decisions. Laurel Heights I, 47 Cal.3d at 409. An EIR must reflect a good faith effort at full disclosure; CEQA does not mandate perfection, nor does it require exhaustive analysis. Defend the Bay v. City of Irvine, 119 Cal.App.4th 1261, 1265 (2004). “[T]he sufficiency of an EIR is to be reviewed in light of what is reasonably feasible.” Cal. Code Regs., tit. 14, § 15151.3 In short, CEQA sets procedural requirements similar to NEPA. City of 3 Future citations to the California Code of Regulations, title 14, section 15000 et seq. will appear as “Guidelines § _____.” Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 16 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 7 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1163 (9th Cir. 1997). An EIR, like an EIS, must inform the decision-makers and the public about the potential environmental consequences of proposed activities before proceeding with them. Laurel Heights I, 47 Cal.3d at 393. IV. ARGUMENT A. The Project Description Is Clear, Complete, and Finite. Plaintiffs allege that the EIS/EIR “fails to provide a legally adequate project description.” Doc. 45 at 12-17. Under CEQA, however, the term “project” encompasses a wide spectrum of activities ranging from statewide or regional planning efforts to local use permits for site-specific developments. CREED v. City of San Diego Redev. Agency, 134 Cal.App.4th 598, 604 (2005). Practical considerations specific to the nature of the project at hand govern the level of specificity required in the EIR, which is measured by its content, not its label. City of Irvine v. Cnty. of Orange, 238 Cal.App.4th 526, 540 (2015). This rule reflects the variety of situations that may be addressed by an EIR, “as the documents are tailored to different situations and intended uses.” Guidelines § 15160. An EIR’s project description therefore discusses the basic characteristics of proposed activities and the approvals anticipated to implement them. Guidelines § 15124; see AR 14865. The description requires enough information to analyze the project’s environmental effects, assess ways of mitigating them, and consider alternatives. Sierra Club v. City of Orange, 163 Cal.App.4th 523, 533 (2008). It need not be exhaustive nor need it benefit from any prophetic ability to predict the future. Guidelines §§ 15124, 15144; Save Round Valley v. Cnty. of Inyo, 157 Cal.App.4th 1437, 1450-51 (2007). A concise outline of project elements and anticipated uses of the EIR is all that CEQA requires. Guidelines § 15124; Dry Creek Citizens v. Cnty. of Tulare, 70 Cal.App.4th 20, 28 (1999). Here, in compliance with CEQA, the level of detail in the EIS/EIR’s project description is consistent with its purpose and function. AR 14786, 14861, 25425-26. Water deliveries to CVP contractors fall short of contract amounts in all but the wettest years. AR 14786, 14844, 14847, 26401. The EIS/EIR’s purpose is to facilitate voluntary transfers to CVP contractors to afford a small degree of flexibility to help meet annual water demand during periods of shortage. CAR 434, 457, 2362-63, 2912-14; AR 14844. The EIS/EIR therefore describes a finite range of potential transfers, enabling careful study of the impacts of those activities while allowing flexibility to respond to the Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 17 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 8 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT annual variables of hydrology and facility operations associated with specific applications. AR 14788, 14861-62, 14896; see AR 26399-490. Details about the potential transfers are provided:  The EIS/EIR describes a specific range of potential transfer activities based on identified service areas of buyers as well as sellers. AR 14791-93, 14848-53, 14871, 14881.  The EIS/EIR evaluates transfers to be purchased by CVP contractors only. AR 14848.  The EIS/EIR describes water transfer methods. AR 14872-76.  For each potential seller, the EIS/EIR identifies the location, maximum potential water transfer amount, the upper limits of each type of transfer, and anticipated timing (limited to a July through September transfer window, and only under balanced conditions for cross-Delta transfers). AR 14876-81, 14894-95, 25375, 25455, 27560, 27562.  The EIS/EIR describes transfer operations by geographic region, with details regarding how potential transfers would be conveyed in relation to rivers and the Delta region. AR 14881-92.  The EIS/EIR describes variables that affect capacity available for transfers, including water availability, biological opinions, seasonal limits on operations, State Water Resources Control Board Decision 1641 (“SWRCB 1641”), and pumping capacity. AR 14894-96.  Most transfers are short-term. AR 456. The EIS/EIR recognizes the possibility of “long term” transfers, meaning that buyers and sellers may negotiate multi-year agreements giving the buyer the right of first refusal. See, e.g., AR 14897. Such agreements are subject to annual review of the individual proposed transfers and do not guarantee that Reclamation will approve them in any given year. CAR 325, 370, 2305-06; AR 14897, 27422, 27450-52. The EIS/EIR evaluates transfers to existing CVP contractors to help meet existing needs and will not expand existing use of CVP water. AR 2916-17, 14788-89, 14844, 26353, 26401, 27687, 27977. Further, because the analysis is limited to CVP contractor buyers, all of the potential transfer activities involve review by Reclamation in coordination with the United States Fish and Wildlife Service (“USFWS”). CAR 56-63, 123-125, 471-73; AR 14786, 14861-62, 14854, 14890, 25443-444, 27422. The action alternatives were selected on that basis to meet the Water Authority’s objectives and Reclamation’s purpose and need for the project. AR 14789, 14794-96, 14866-69. Reclamation’s regulatory oversight is fundamental to the EIS/EIR’s project description and formulation of the Study Area, substantive impact analysis, and identification of effective and enforceable mitigation measures. AR 14790, 14861-62, 26402, 28187-205. Transfers outside of Reclamation’s jurisdiction are not part of the project analyzed in the EIS/EIR. AR 14789, 27421-22, 27450-52.4 4 The EIS/EIR analyzes transfers of CVP water through CVP or SWP facilities and transfers of non- Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 18 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 9 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 1. The EIS/EIR Describes a Defined Range of Water Transfers Regulated by Reclamation, Whose Annual Process Accounts for the Unavoidable Uncertainty of Variable Conditions. According to Plaintiffs, “the timing, amount, location, and frequency of transfers are entirely uncertain.” Doc. 45 at 12-15. Neither Reclamation nor the Water Authority, nor any other public agency, can mandate or predict the specific “timing, amount, location, and frequency” of individual transfers. Doc. 45 at 12-13. A transfer involves an agreement between a willing seller and a willing buyer, and sufficient infrastructure capacity to convey water between the two parties based on a real- time assessment of hydrologic conditions, regulatory requirements, and other operational limitations to ensure a responsible transfer. CAR 56-63, 325, 426, 432, 2305-06; AR 14788, 14844, 14861, 14881-92, 14894-95, 26330. Buyers and sellers are responsible for identifying one another, initiating discussions, and negotiating the terms of transfers including amount, method, and price. AR 14861; see CAR 2917, 14788, 14896. For analytical purposes, the EIS/EIR therefore identifies a range of potential locations, types, timing, and maximum amounts of available water per year over a ten-year period. CAR 435; AR 14791-93, 14848-53, 14871, 14876-81, 14894-95, 25375, 25455, 27560.5 The analysis scenario also establishes upper limits for each type of transfer. Id. The EIS/EIR takes a conservative approach by analyzing impacts of the maximum “worst case” of 511,094 acre-feet of water transferred per year, while noting “it is likely that only a portion of the potential transfers . . . would occur.” AR 14793, see CAR 2364; AR 14860, 14881, 14894-95, 25460-66, 27560.6 The CVP water supplies that require the use of CVP facilities – activities that require Reclamation’s annual review and approval. CAR 470-71, 2371; AR 27450-52. Reasonably foreseeable transfers outside Reclamation’s jurisdiction are considered in combination with the potential action alternatives for purposes of cumulative impact analysis. AR 15656-665; see also CAR 2291; AR 14845, 14861, 14937-38, 14995-99, 15094-97, 15363-66, 25443, 27599; Guidelines §§ 15130, 15355. 5 These analytical assumptions could not preclude any pair of willing buyer and seller to propose a transfer inconsistent with them, but such proposals would be subject to separate CEQA/NEPA evaluations. AR 14789, 14845, 26402, 27451, 27510-11, 27691. 6 An EIR’s adequacy is determined in terms of what is reasonably feasible. Guidelines §§ 15151, 15204(a). “Worst case” analysis generally is not required (see, e.g., Vineyard, 40 Cal.4th at 453), but may be used to account for project impacts where some elements are necessarily flexible or uncertain due to market forces or other variables. Sierra Club, 163 Cal.App.4th at 533. When project activities will be implemented over time, future approvals need not be precisely defined in the EIR. Id. Rather, the agency should evaluate a reasonable worst-case scenario or otherwise “comprehensively, if not Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 19 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 10 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT analysis overstates impacts by assuming amounts would be maximized despite a host of factors making such a scenario practically impossible. CAR 123-125, 325, 2303-06; AR 14793, 14894-96, 26407-08, 27560, 28036. In fact, the CVP and SWP facilities have no capacity to convey transfer water in 65 percent of years. AR 27590; see CAR 2364. The EIS/EIR’s conservative worst-case assumptions account for the variability in annual and even monthly conditions associated with evaluating individual water transfers. See, e.g., CAR 14896, 26422-32, 26433-36, 27560. Further, the EIS/EIR expressly provides (and the Agencies’ approval documents affirm) that all specific transfer proposals are subject to review for consistency with the scope and analysis of the certified EIS/EIR as well as the adopted mitigation measures. AR 14861-62, 25444, 27451; see CAR 06-07, 19-20, 38-44; AR 27544-45, 27562, 27687, 27691, 27772, 28185-205; Cal. Pub. Res. Code § 21166; Guidelines § 15168(c). The EIS/EIR uses exactly the process CEQA anticipates to describe and analyze a series of individual activities having generally similar impacts that can be mitigated in similar ways. See Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, 234 Cal.App.4th 214, 233-34, 237-40 (2015). For the range of transfers identified, the EIS/EIR analyzes every impact that reasonably could occur for each environmental resource potentially affected. See, e.g., AR 14903-912, 14914, 25378-390, 25490-500, 25503. Further analysis of individual transfers within the Study Area likely will not be necessary because it would not reveal any unanticipated impacts. Id.; Guidelines § 15168(c)(2). 2. Carriage Water Is Calculated Through Regular Operation of CVP Facilities and Is an Inherent Component of Water Transfers. Plaintiffs assert that the EIS/EIR’s “carriage water” project component is undefined and “conflates a mitigation measure with the project itself.” Doc. 45 at 15-17. Plaintiffs’ argument mischaracterizes the EIS/EIR in both respects. The CVP and SWP facilities have capacity for transfers when the water can be moved without interfering with CVP and SWP operations, which are subject to numerous regulatory requirements, including SWRCB 1641. CAR 325, 2305-06; AR 14896, 26330. Transfers only occur when the Delta is in balanced conditions (when the CVP and perfectly, analyze the issue.” Schaeffer Land Trust v. San Jose City Council, 215 Cal.App.3d 612, 631 (1989); see PCL v. Castaic Lake Water Agency, 180 Cal.App.4th 210, 246 (2009) (“PCL II”). Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 20 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 11 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SWP are releasing stored water to satisfy SWRCB 1641, and storage releases plus unregulated flow equal in-basin uses plus exports). AR 14890, 14894; see Friant Water Auth. v. Jewell, 23 F. Supp. 3d 1130, 1151 (E.D. Cal. 2014). “Carriage water” is the amount of any cross-Delta conveyance used to maintain these balanced conditions by accounting for in-stream losses7 and countering the potential for salinity intrusion.8 AR 2918, 15737, 15741. This is what is meant by “maintaining water quality in the Delta” with carriage water – it is the amount of the transfer water allocated to conveyance in compliance with established CVP operational criteria. CAR 325, 370, 432, 2472-77, 2482-86, 2510; AR 14895-96, 15749, 25478, 26330, 26419, 27687. The carriage water component applies to all transfers and “[i]t would be nonsensical to analyze the impact using some other [approach] and then to consider use of this particular [requirement] as a mitigation measure.” Lotus v. Dep’t of Transp., 223 Cal.App.4th 645, 656 fn. 8 (2014) (“Lotus”); CAR 43. Reclamation and DWR calculate carriage water based on real-time monitoring information, annual hydrology, and regulatory restrictions, among other operational considerations. CAR 432, 2918; AR 15736-37, 25478, 27627, 27840, 27885-86, 28029. For transfers, this requires initial estimates of carriage water that must be verified and adjusted. AR 15737, 15811, 26406, 26498.9 As part of the total cost for a water transfer, buyers pay for carriage water they do not receive as well as 7 In-stream losses are inherent in all cross-Delta conveyance. AR 27609, 27616, 27885. They are distinct from “streamflow depletion”—the change in the existing environment that could occur when transfers involve groundwater and surface water interaction. AR 14932, 27686. Streamflow depletion effects of transfers were fully analyzed and mitigated in the EIS/EIR. AR 14929-36, 25518-527. 8 Reclamation maintains salinity control at all times. CAR 2695, 2874, 2876-900, 2929-32, 2958-60, 3570-71; AR 15749. Temporary modifications to water quality requirements to address urgent conditions—such as exceptional drought—are anticipated and sometimes necessary. Cal. Wat. Code § 1435; Cal. Code Regs., tit. 23 §§ 805,806; CAR 2517-18, 2530-41, 2545-48, 2655-59, 2673-93, 2682, 2696-98, 2702-04, 2713-15, 2924-56, 3544-79; see Doc. 45 at 28; AR 28028-29, 30364. 9 The EIS/EIR assumed a constant carriage water percentage in order to evaluate through-Delta transfers and the effects on Delta outflow and water quality. AR 27627, 27738. Analysis of the effects on Delta water quality provided in the EIS/EIR is representative of what may be expected under each alternative, using the assumed carriage water percentage. AR 27738. In actual transfers, carriage water is determined based on observed data and conditions before, during, and after the transfer and can vary from the estimate used in the EIS/EIR. Id. Water quality impacts can be assessed with the models used, however, and also simulate additional factors that affect Delta inflow and outflow such as stream-groundwater interaction and changes in upstream reservoir operations. Id. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 21 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 12 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT the amount of water they do receive. CAR 2962-82; AR 27885-86. Accounting and adjusting for carriage water is part of the existing regulatory framework – one of the many layers in “the already complex task of operating the CVP and SWP for numerous in-stream flow, water temperature, water quality, and water supply constraints.” AR 26406; see CAR 264-273, 470; AR 15737, 15811, 27627. As such it is properly described in the EIS/EIR as a component of water transfers. CAR 117; AR 14892, 15737, 25478; Guidelines § 15126.4(a)(1)(A); see also AR 27686 (distinguishing between operational considerations (e.g. carriage water) that are project components and mitigating actions that are separate from the project (e.g. Measure WS-1)). Plaintiffs cite the Lotus opinion in claiming that the EIS/EIR “illegally conflates a mitigation measure with the Project itself.” Doc. 45 at 15. The Lotus EIR’s primary flaw was omitting significance criteria for root zone impacts on old growth redwood trees adjacent to the proposed roadway improvements. 223 Cal.App.4th at 654-58. The agency “compounded” its omission by failing to identify any mitigation measures, instead relying solely on “environmental protection measures” as “part of the project” to conclude no impacts were significant. Id. at 650-51, 655-56. Because of this “shortcut” approach, the mitigation measures were not properly adopted. Id. at 652. In this case, however, Plaintiffs misconstrue a basic component of water transfers, carriage water, as “mitigation” for the transfers. The Lotus court noted the distinction between elements of a project and mitigation measures might not always be clear. 223 Cal.App.4th at 656 fn. 8. As examples, the court explained that “cement treated permeable base” pavement could be considered part of the road improvement project, but restorative planting, invasive plant removal elsewhere, and arborist monitoring are “plainly mitigation measures.” Id. No Lotus defect exists in this case, because (1) the EIS/EIR makes clear whether potential impacts of cross-Delta transfers are significant both before and after imposition of mitigation measures; (2) the EIS/EIR properly distinguishes project components and mitigation measures; and (3) each mitigation measure has been properly adopted as CEQA requires. CAR 01, 06, 22-34, 38-43; AR 25378-89; Lotus, 223 Cal.App.4th at 657-58; see also Guidelines § 15126.4(a)(1)(A). B. The EIS/EIR Properly Defines Existing Groundwater Conditions. In Plaintiffs’ view, the EIS/EIR “failed to accurately describe existing groundwater Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 22 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 13 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT conditions” and “relied upon an outdated groundwater baseline.” Doc. 45 at 18-23. The EIS/EIR’s baseline approach complies fully with CEQA, however. Guidelines §§ 15125, 15126.2; Neighbors for Smart Rail v. Expo. Metro Line, 57 Cal.4th 439, 449 (2013). Baseline discussions are sufficient if they provide the overall context for the impact analysis. N. Coast Rivers Alliance v. Marin Mun. Water Dist., 216 Cal.App.4th 614, 644-45 (2013) (“North Coast”). The EIS/EIR complies with CEQA by describing existing conditions in the context of historical conditions to provide sufficient information to make intelligent decisions. Save Our Peninsula Comm. v. Monterey Cnty., 87 Cal.App.4th 99, 125 (2001); AR 25599-697, 27810, 28207-65. Plaintiffs assert the EIS/EIR’s baseline discussion lacks information regarding recent drought conditions and increased water demand. Doc. 45 at 20, 23-24. Drought conditions existed in 2014 and 2015, resulting in declining groundwater levels, and the Agencies acknowledged this in the EIS/EIR. AR 25655. The EIS/EIR contains extensive recently published data regarding drought conditions and analysis of groundwater conditions during the drought. AR 25653, 27423-26; see also AR 27430-31, 27777, 27813-14, 27827. Moreover, the Agencies determined that to fully describe existing conditions and the potential impacts of transfers in relation to those conditions, the EIS/EIR required a more comprehensive analysis of data from a timeframe longer than the last few drought years on which Plaintiffs focus. AR 25518, 28206. Review of a range of historical hydrologic conditions is commonly used as guidance in understanding potential future impacts. AR 27781; see Cnty. of Amador v. El Dorado Cnty. Water Agency, 76 Cal.App.4th 931, 954-55 (1999). The EIS/EIR includes information showing that rainfall in California is cyclical. AR 25656. The Agencies pointed out “though the Sacramento Valley and other parts of California are currently noticing declining groundwater level trends, past groundwater trends are indicative of groundwater levels declining moderately during extended droughts and recovering to pre-drought levels after subsequent wet periods.” AR 27424. The Final EIS/EIR also includes updated information showing groundwater conditions through spring 2014. AR 25599-697, 28207-29265. This information adds detail about existing groundwater conditions, but does not change the conclusions drawn regarding impacts of water transfers. CAR 05-06, 22-27. The EIS/EIR thus provides a more realistic view of existing conditions by accounting for more than a simple “snapshot” in time, to allow for more informed Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 23 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 14 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT decision-making. AR 27428, 27430-31; San Francisco Baykeeper v. State Lands Comm’n, 242 Cal.App.4th 202, 217-19 (2015) (“Baykeeper”). Moreover, because the EIS/EIR is intended to assess environmental conditions resulting from implementation of a range of potential water transfer activities over a 10-year timeframe, a key consideration is whether there exists within the period of analysis any 10-year period representing a worst-case scenario with regard to rainfall and, therefore, groundwater levels. AR 27428. Recent years have been drier than average, resulting in lower groundwater levels, but the EIS/EIR analysis over a longer-term historical range identified several periods of multi-year drought that were significantly more severe than the current drought. AR 27429. For example, the average Sacramento Valley combined annual runoff is approximately 17.8 million-acre-feet (“MAF”) and the average for the ten-year period 2004-2014 was drier at 15.7 MAF. AR 27428. The period from 1985-1994 was drier still, at an average of 12.7 MAF. AR 27429. The driest ten-year period on record, 1928-1937, saw an average of 12.3 MAF. Id. A complete description of existing groundwater conditions includes not only the present drought but also analysis of the normal range of variability in water supplies typical for California. AR 27430-31. The EIS/EIR described this variability and the overall context of the historical hydrological record. AR 27428-31. C. The EIS/EIR Fully Discloses Reasonably Foreseeable Project Impacts. Plaintiffs assert the EIS/EIR failed to adequately assess effects regarding groundwater levels, climate change, water quality, giant garter snake (“GGS”) and other wildlife, and biological impacts from reductions in Delta outflows. Doc. 45 at 22-33. Substantial evidence in the record shows none of these claims has merit. Based on a conservative impact assessment that maximizes and thus overestimates the effects of transfers; substantial evidence that basins in the Study Area fully recharge and maintain capacity with seasonal fluctuations; monitoring that ensures transfer-related pumping will stop if even the slightest reductions in historic groundwater levels or subsidence occur; and mitigation plans with financial assurances for prompt corrective action in the unlikely event that impacts occur despite the monitoring program, the Agencies properly concluded that the potential for transfers to result in adverse impacts is less than significant. CAR 06, 16-33; AR 25753, 25765- 25766, 25768, 27465. While Plaintiffs disagree with the Agencies’ conclusions, the record contains Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 24 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 15 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT substantial evidence in support of the Agencies’ determinations and the EIS/EIR thus complies with CEQA. Laurel Heights I, 47 Cal.3d at 392, 409; Vineyard, 40 Cal.4th at 435. 1. The EIS/EIR Analyzes and Discloses Potentially Significant Impacts Related to Groundwater Levels. Plaintiffs contend that the EIS/EIR impermissibly relies on Mitigation Measure GW-1 (“Measure GW-1”) “to gather baseline groundwater data and assess the Project’s impact on groundwater resources.” Doc. 45 at 24-25. Substantial evidence in the record demonstrates otherwise. The groundwater impacts analysis in the EIS/EIR was developed using the best available modeling tools, SACFEM2013 and CalSim II. AR 27980, 27982. The Appendices to the EIS/EIR provide extensive technical details concerning the models used. AR 27515, 27760. Both of the models used for the EIS/EIR simulate demands based on a fixed level of development: 2005 for CalSim II and 2010 for SACFEM2013. AR 27430.10 Population, land use, and agricultural demands in the models are representative of existing demands in those years. Id. Actual demand for water changes every year, based on numerous factors. Id. The EIS/EIR recognizes that since 2005 (CalSim II) and 2010 (SACFEM2013), groundwater demand has likely increased due to additional crops and population increases. AR 27430. To account for this, new information regarding potential groundwater demand, including updated land-use surveys and precipitation records, was incorporated into SACFEM2013 to develop demands that vary in each year of the simulation. AR 27431. Thus, the range of demands simulated in SACFEM2013 is representative of existing conditions. Id.; see Neighbors for Smart Rail, 57 Cal.4th at 57 (agency has discretion to decide how existing physical conditions can most realistically be measured). Groundwater pumping resulting from potential transfers, as established by the upper limit volumes identified in the project description, was then added to background pumping in the SACFEM2013 model to assess the maximum potential changes to groundwater levels due to transfers. AR 27515, 27767. The EIS/EIR used a “worst-case” methodology to conservatively anticipate impacts associated with implementation of the full range of potential transfers analyzed. AR 25701, 25617, 27767. 10 Preparation of the EIS/EIR began in early 2011. CAR 04-05, 47. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 25 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 16 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT After using the models to assess the reasonably foreseeable direct and indirect groundwater impacts that might result from the full and concurrent implementation of the maximum groundwater substitution pumping described in the Proposed Action, the EIS/EIR conservatively concludes that there could be significant effects related to groundwater resources. AR 25768. Significant effects could include vegetation losses due to lowered groundwater tables, permanent land subsidence (which is caused by lowering of groundwater levels below historically recorded lows), and degradation of groundwater quality. AR 25697-98, 25702. The EIS/EIR therefore includes Measure GW-1 to accurately measure groundwater levels during groundwater substitution transfers. AR 25759-60, 27465. Pumping will be stopped if groundwater levels fall even slightly below recorded historic low levels. AR 27515. If monitoring indicates that groundwater levels have dropped below historic lows and the groundwater level remains decreased for more than seven days, measurements must be taken to ascertain whether any land subsidence has occurred. AR 25762. If detectable land subsidence has occurred (in excess of 0.1 foot or 1.2 inches), then the pumper must implement its mitigation plan, which includes curtailment of pumping until natural recharge occurs, reimbursement for modifications to structures or other physical features in the unlikely event that they are affected by subsidence, and other measures as determined by Reclamation based on local conditions. AR 25764. Based on a conservative impact assessment that maximizes potential effects on groundwater levels; substantial evidence that basins in the Study Area fully recharge and maintain capacity with seasonal fluctuations;11 monitoring that ensures transfer-related pumping will stop if even the slightest reductions in historic groundwater levels or land subsidence occur; and mitigation plans with financial assurances for prompt corrective action in the unlikely event that impacts occur despite monitoring, the Agencies properly concluded that potential impacts related to groundwater levels are not significant. CAR 06, 16-33; AR 25753, 25765-66, 25768, 27465. Because substantial evidence 11 CEQA requires an EIR to focus on impacts that are potentially significant. Guidelines §§ 15126.2(a), 15143. Plaintiffs’ assertion that transfers may reduce the capacity of the aquifer system to store water to any meaningful degree is unfounded. Doc. 45 at 42. Assuming permanent subsidence effects far greater than are reasonably foreseeable in the Study Area (i.e., measured in feet rather than inches), the risk of lost storage capacity is nonetheless insubstantial. AR 74528. Subsidence has very little, if any, effect on the storage capacity of aquifers because subsidence affects clay layers, rather than the water bearing sand and gravel portions of the aquifer. Id. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 26 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 17 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT supports the Agencies’ conclusions regarding groundwater impacts, the EIS/EIR complies with CEQA. Laurel Heights I, 47 Cal.3d at 392, 409; Vineyard, 40 Cal.4th at 435. 2. The EIS/EIR Properly Accounts for Potential Climate Change. Plaintiffs argue that the EIS/EIR “makes no attempt to account for global warming in its analysis.” Doc. 45 at 25-28. Throughout the EIS/EIR, however, the Agencies recognize California’s water resources are highly variable for many reasons. AR 27430. Any climate change effects that may have occurred in the most recent ten-year period are difficult to discern in context and would be too small to be outside the range of modeling variability. AR 27429, 27934. It is certainly possible that the next ten years may be the driest on record, potentially influenced to an unknown extent by climate change, but it would be speculative to develop hydrology for the period of analysis in the EIS/EIR (2015-2024) as a series of 10 consecutive critical years based on potential climate change. AR 27429; Guidelines § 15124, 15144-45; Sierra Club v. West Side Irrigation, 128 Cal.App.4th at 703 (agency not required to speculate about future water supply events). The Agencies took appropriate steps to analyze climate change-related issues as they may bear on the anticipated impacts of transfers, both in Section 3.6 (Climate Change) and through modeling. AR 25861-67.12 Modeling is the best available tool to estimate the effects of transfers in a range of scenarios; however, modeling is theoretical and water projects are managed in real time. CAR 56-63, 325, 426, 432, 2305-06; AR 14788, 14844, 14861, 14881-92, 14894-95, 26330, 27980. Measure GW- 1 is designed to avoid and reduce impacts based on actual conditions at the time of transfer, rather than predicted conditions from the modeling effort. AR 25764-66, 27862. If climate change results in different conditions over the next ten years, Measure GW-1 will protect the resource by limiting or preventing pumping or taking other identified steps to minimize effects, as monitoring determines necessary. AR 25764-66, 27429. The EIS/EIR complies with CEQA because the scope, methodology, and conclusions of its climate change analysis are supported by substantial evidence. 12 The CalSim II model was used to analyze climate change because it considers a long historical hydrologic record: 82 years, from 1922 – 2003. AR 36223. This data was then adjusted to account for the existing level of development, requirements and projects. AR 36224. Taken together with the SACFEM2013 model data, this effort represents the best available method to capture variability due to climate change, and to assess any associated environmental consequences. AR 27843, 28093, 36221. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 27 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 18 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Bakersfield, 124 Cal.App.4th at 1198. 3. The EIS/EIR Fully Analyzes Potential Water Quality Impacts. Plaintiffs claim the EIS/EIR “fails to accurately assess water quality impacts.” Doc. 45 at 28- 29. Here again, Plaintiffs disagree with the Agencies’ conclusions, yet fail to show any error in the EIS/EIR’s discussion of water quality issues. Substantial evidence in the record supports the Agencies’ determinations, in compliance with CEQA. Laurel Heights I, 47 Cal.3d at 392, 409; Vineyard, 40 Cal.4th at 435. Specifically, the EIS/EIR fully analyzes water quality issues in Section 3.2. AR 25531. It describes the complex regulatory structure that applies to water quality in California, as well as existing water quality regulatory compliance issues and numeric water quality objectives. AR 25533-39, 27900. These requirements include: Biological Opinions (and Reasonable and Prudent Alternatives (“RPA”)), the CVPIA, the California Water Code and state regulations, SWRCB 1641, Groundwater Basin Management Plans, and the 1995 Bay-Delta Plan. AR 25602. All of these legal authorities assure protection of water quality. AR 25435-40, 25481. The EIS/EIR also presents tables and accompanying narratives describing existing water quality conditions for potentially affected water bodies within the area of analysis. AR 25540-55, 25893-94, 27895, 27899. To analyze potential water quality impacts of water transfers, including impacts to fish and wildlife, the EIS/EIR uses both qualitative and quantitative methodologies. AR 25555, 27895. These include modeling to predict changes to water quality parameters and estimates based on the best available information, including anticipated changes to flows (decreases and increases) and the timing of those changes. AR 25555-56. Water quality impacts are considered significant if they violate existing water quality objectives or standards; result in long-term adverse effects on beneficial uses; or substantially degrade water quality. AR 25556. The EIS/EIR concludes water quality impacts will be less than significant because changes to overall flows in the seller service area would be insubstantial and confined to the wetter months of December through June. AR 25564. In addition, idled croplands would result in less potential for pesticide leaching and agricultural runoff. AR 25563, 25590, 27899. Water quality will be further maintained because Reclamation will not approve a transfer that does not comply with all applicable laws and regulations, and will issue decisions regarding transfer approvals in coordination with USFWS and the California Department of Fish and Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 28 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 19 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Wildlife (“CDFW”). CAR 43-44; AR 25602. 4. The EIS/EIR Properly Analyzes Impacts to Giant Garter Snake. Plaintiffs allege the EIS/EIR fails to analyze “impacts on GGS and other protected species that rely on the same habitat as GGS.” Doc. 45 at 30-32. The EIS/EIR analyzes these potential impacts, however, and concludes they are less than significant because the acreage of cropland to be idled is very limited in relation to the “no project” scenario, and because groundwater substitutions will have no effect on the freshwater emergent vegetation that comprises GGS habitat. AR 27444-49, 26015-17, 26034-35, 27961. Substantial evidence supports this conclusion, in compliance with CEQA. Id.; see Guidelines § 15064(b)-(d); Protect the Historic Amador Waterways v. Amador Water Agency, 116 Cal.App.4th 1099, 1107 (2004). Accordingly, no mitigation measures are needed. CAR 32; AR 26034; Guidelines §§ 15064, 15126.4(a)(1)(A), 15382; Lotus, 23 Cal.App.4th at 654-58. Plaintiffs disagree with this conclusion and seek to refute it with selective quotations from the EIS/EIR that attempt to craft a “ratio theory” defect in the impact analysis. Doc. 45 at 30-31. Omitted from Plaintiffs’ argument, for example, is this key sentence: “Long-term water transfers are expected to contribute a relatively small amount of rice idling/shifting acreage annually in relation to the variation in planted rice acreage resulting from drought conditions and typical farming practices.” AR 26015; see CAR 34-35. Further, although “[t]he range of transfer activities in the action alternatives could result in up to 10.5 percent of rice field idling throughout the sellers’ service area, . . . idling would be focused in areas where giant garter snake occurrence probability is low.” AR 27449; see AR 27698, 28065, 28204. In other words, the incremental habitat impact of crop idling transfers analyzed in the EIS/EIR is insubstantial—not in relation to the overall problem of habitat loss and fragmentation (i.e., the “ratio theory”)—but in relation to existing conditions. CAR 34-35; AR 26015-16.13 This is precisely the analysis CEQA requires. Cal. Pub. Res. Code §§ 21065, 21068; Guidelines §§ 15060(c)(2), 15125, 15378(a), 15382. Plaintiffs disagree with the Agencies’ conclusions, but have shown no defect 13 The Agencies acknowledged that the “no cropland idling alternative” would eliminate the incremental impact to GGS habitat entirely. CAR 35-36; AR 26026-28, 27972. Substantial evidence showed that the difference in impact was not significant. CAR 36; AR 25384, 25489, 27971-72. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 29 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 20 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT in the EIS/EIR. Laurel Heights I, 47 Cal.3d at 392, 409; Vineyard, 40 Cal.4th at 435. Moreover, although no mitigation is needed, the EIS/EIR also describes elements of the transfer process that protect special status species, which are summarized in the EIS/EIR as “environmental commitments.” CAR 43-44; AR 25478-80, 25748-49; see Guidelines § 15126.4(a)(1)(A) (impacts may be avoided through components of project). These environmental commitments include Best Management Practices and similar requirements; they are part of the regulatory framework and reflect the required coordination of Reclamation, USFWS, and CDFW for transfers that may affect special status species. CAR 32-33, 43-44; AR 25478-80, 26015, 26406, 27444-46, 27448-49, 27495, 28100, 28204; Lotus, 223 Cal.App.4th at 656 fn. 8. 5. The EIS/EIR Adequately Analyzes Potential Impacts to Biological Resources Associated with Delta Outflow. Plaintiffs allege that the EIS/EIR fails to adequately analyze impacts to biological resources based on their disagreement with the Agencies’ use of a 10% reduction in net Delta outflow (“NDO”) as a threshold of significance. Doc. 45 at 32-33. Plaintiffs contend: “no explanation is provided as to how that threshold [10%] is derived” and “thus, the EIS/R appears to apply an arbitrary significance threshold.” Id. In reality, however, the EIS/EIR clearly states how the 10% threshold was derived based on historical streamflow information and studies showing “consensus that differences in modeled flows of less than 10% would be within the noise of the model outputs and beyond the ability to measure actual changes.” AR 25903-04. Thus, based on substantial evidence, the Agencies concluded that reductions in rivers, streams or Delta flow below the 10% threshold would not result in significant impacts to the special status species or their habitat, cause a conflict with established goals in approved plans for species recovery, or conflict with any existing habitat conservation plans. AR 25905; see Guidelines § 15064(b); Baykeeper, 242 Cal.App.4th at 227 (agency has discretion to formulate EIR’s standards of significance); North Coast, 216 Cal.App.4th at 625 (same). The Agencies properly used a significance threshold developed by the experts preparing the EIS/EIR. See Save Cuyama Valley v. Cnty. of Santa Barbara, 213 Cal.App.4th 1059, 1068 (2013) (“Save Cuyama Valley”); Clover Valley Found. v. City of Rocklin, 197 Cal.App.4th 200, 243 (2011). Under the worst-case scenario of maximum transfer implementation, reductions in Delta Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 30 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 21 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT outflow would be very small, generally less than 5%. AR 25916-17. As stated, 10% was established as the threshold of significance, but modeling indicates that average Delta outflows would be no more than 1.3% (147 cubic feet per second (“cfs”)) lower than flows under the “No Action” alternative. AR 25920. This is well below the 10% threshold. AR 25920. It is also considered insubstantial in light of the affected environment, which is significantly influenced by other factors such as weather, inflow, and local diversions, and includes average daily tidal fluctuations exceeding 170,000 cfs. AR 25920. Although transfers may slightly affect the net movement of water within channels of the Delta, a change in Delta outflow of 500 cfs due to transfers would be less than significant (0.3% of the daily tidal change experienced in the area). AR 25920. Moreover, Delta outflow would not be reduced at all during July through September, the period when through-Delta water transfers are allowed. AR 25567, 25917. During dry and critical years net Delta outflow would increase in these months. AR 25567, 25591, 25917. Because net changes in flows in Delta channels are insubstantial and there are existing protections in place for fisheries and aquatic resources under the Endangered Species Act, 16 U.S.C. § 1531 et seq. (“ESA”) and SWRCB 1641, impacts from transfers are considered less than significant. AR 25567, 25916-21. D. Substantial Evidence Supports the Agencies’ Conclusions that the Adopted Mitigation Measures Are Effective and Enforceable. An EIR must identify measures designed to minimize the significant impacts of the action under review. Cal. Pub. Res. Code §§ 21002.1(a), 21100(b)(3); Guidelines § 15126.4(a)(1). A mitigation measure may reduce or substantially lessen an impact, such that it may be considered less than significant, without avoiding the impact entirely. Guidelines § 15370(b). Plaintiffs allege that the EIS/EIR “fails to properly evaluate mitigation measures,” claiming the Agencies deferred mitigation without sufficient assurance that impacts will be addressed. Doc. 45 at 33-45. “Mitigation” is broadly defined, however, and includes actions taken to rectify or compensate for impacts. Guidelines § 15370. CEQA’s standards of reasonableness apply to the formulation of mitigation measures as well as to analysis of impacts. Guidelines § 15151; Riverwatch v. San Diego, 76 Cal.App.4th 1428, 1448-51 (1999). CEQA requires the agency’s good faith effort to disclose what could be known about both the significance of potential impacts and the mitigation without resorting Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 31 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 22 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT to undue speculation. Riverwatch, 76 Cal.App.4th at 1449-50; Citizens for a Sustainable Treasure Island v. City and Cnty. of San Francisco, 227 Cal.App.4th 1036, 1061 (2014) (“Treasure Island”). “[W]here substantial evidence supports the approving agency’s conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy.” Sacramento Old City Ass’n v. City Council, 229 Cal.App.3d 1011, 1027 (1991) (“SOCA”). 1. The EIS/EIR Identifies, and the Agencies Adopted, Effective and Legally Enforceable Mitigation Measures. A lead or responsible agency adopts mitigation measures described in the EIR when it approves the project. Cal. Pub. Res. Code § 21081.6(b); Guidelines §§ 15097, 15126.4(a)(2). The agency must be able to find, based on substantial evidence, that the adopted mitigation measures are “required or incorporated into the project” and that those measures will “mitigate or avoid significant effects on the environment.” Cal. Pub. Res. Code § 21081.6(a), (b); see Tracy First v. City of Tracy, 177 Cal.App.4th 912, 937 (2009). Mitigation must be enforceable through conditions of approval, contracts or other means that are legally binding. Id. This requirement is designed to ensure that measures will be implemented, not merely adopted and ignored. Fed’n of Hillside & Canyon Ass'ns v. City of Los Angeles, 83 Cal.App.4th 1252, 1261 (2000). When an agency provides a legal framework for later approvals, mitigation measures are made enforceable by incorporating them into that framework. Cal. Pub. Res. Code § 21081.6(b); Guidelines § 15126.4(a)(2). The agency likewise may adopt measures made enforceable through another agency with regulatory authority. Citizens Opposing a Dangerous Env’t v. Cnty. of Kern, 228 Cal.App.4th 360, 383 (2014) (“Citizens”). The Agencies here concluded, based on substantial evidence, that the mitigation measures identified in the EIS/EIR would effectively avoid or substantially lessen any potentially significant effects, such that they are considered less than significant. CAR 06-07, 22-33, 38-44; AR 28187-205. The Agencies adopted those mitigation measures as part of the legal framework that governs the range of potential transfers analyzed in the EIS/EIR. Id. The mitigation measures are legally feasible and may be fully enforced by Reclamation through its regulatory authority. CAR 38-44; AR 14897, 28185-205, 26330, 27422, 27450-52, 27464, 28185-205; see Citizens, 228 Cal.App.4th at 384-85; Tracy First, 177 Cal.App.4th at 937-38. As appropriate, some mitigation measures establish a staged Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 32 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 23 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT process of implementation and safeguards to ensure no significant impacts will result. AR 06, 29-33, 38-43, 28188-200. Monitoring and mitigation plans related to water levels and land subsidence take steps before, during, and after transfers to avoid significant adverse effects and ensure prompt corrective action in the event unanticipated effects occur. Id.; see AR 27460-61, 27909. By itself, monitoring a project's impacts generally does not constitute mitigation because studying an impact does not reduce or avoid it. Monitoring of potential impacts is permissible, however, when coupled with mitigation measures designed to address impacts identified by the monitoring. See Defend the Bay v. City of Irvine, 119 Cal.App.4th 1261, 1275 (2004); Save Panoche Valley v. San Benito Cnty., 217 Cal.App.4th 503, 524-26 (2013). When it is uncertain whether a particular impact will occur, an agency may adopt a contingent mitigation measure that will be triggered under certain conditions. See Save Cuyama Valley, 213 Cal.App.4th at 1070-71. The Agencies’ approach fully complies with CEQA. See, e.g., City of Hayward v. Cal. State Univ., 242 Cal.App.4th 833, 854-55 (2015); Defend the Bay, 119 Cal.App.4th at 1275-76. 2. Implementation of Mitigation Measure GW-1 Ensures Sufficient Monitoring and Data to Avoid Significant Environmental Effects. Plaintiffs argue Measure GW-1 “fails to require sufficient monitoring data to reduce or avoid significant impacts.” Doc. 45 at 36-38. Here again, the record demonstrates otherwise. Substantial evidence supports the Agencies’ conclusion that mitigation measures will be effective, as CEQA requires. SOCA, 229 Cal.App.3d at 1027. The EIS/EIR recognizes that transfers based on groundwater substitution may temporarily reduce groundwater levels where the pumping occurs. AR 25376, 25625-27, 25655, 25752-56, 25758-59, 27423-24. Many effects from transfer-related pumping are within the range of existing seasonal fluctuation of local groundwater. AR 27435. In some parts of the Study Area, fluctuations could vary more widely. AR 25621, 25655, 25663, 25676, 25679-80, 25686, 27435. Accordingly, the Agencies adopted detailed monitoring requirements to ensure they will have sufficient data to take prompt corrective action in the event unanticipated effects—either on the environment or on third parties—occur. CAR 06, 29-30, 39-42; AR 25759-66, 27425-26, 27460-61, 27909, 28189-98. Variable local conditions make it difficult to pre-define the required monitoring and mitigation efforts specific to each seller, however. AR 27968. At a Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 33 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 24 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT minimum, the monitoring program requires a sufficient number of wells in relation to local conditions to accurately characterize groundwater levels in the area before, during, and after water transfer pumping takes place. CAR 39; AR 28190. Pumping will be monitored with flow meter readings recorded just prior to initiation of pumping and at designated times, but no less than monthly, throughout the transfer. CAR 39; AR 28191. Groundwater levels will be monitored in participating transfer wells and in separate monitoring wells, before, during, and after transfer-related pumping. CAR 39-41; AR 28191-94. Detection of potential significant changes will not be based on end-of- year reporting; the seller must identify the potential for significant impacts throughout the transfer based on monitoring results and reports from third parties. CAR 39-42; AR 28190-98. Reclamation must review and approve the monitoring and mitigation plans, which must be in place prior to initiating a transfer. CAR 29-30, 33, 39-41; AR 28189-98. The monitoring protocol describes how the Agencies will detect the potential for significant impacts (see, e.g., CAR 39-41) and the measure also requires mitigation plans that describe how to address any significant effects in the unlikely event they occur despite monitoring efforts. See, e.g., CAR 29-30, 33, 41-42; AR 28189-98. An impact would be significant if groundwater substitution transfers or cropland idling would result in: (1) a net reduction in groundwater levels that would result in substantial adverse environmental effects or effects to non-transferring parties; (2) permanent land subsidence caused by significant groundwater level declines; or (3) degradation in groundwater quality such that it would exceed regulatory standards or would substantially impair reasonably anticipated beneficial uses of groundwater. AR 25702. Mitigation plans must identify measures to reduce impacts to a less-than- significant level and can include stopping pumping or other actions based on local conditions. AR 25764, 27968; see Guidelines §§ 15126.4(a)(1)(B), 15370; Save Cuyama Valley, 213 Cal.App.4th at 1070-71; see also CAR 41-42; AR 28189-98. Plaintiffs criticize the monitoring frequency for groundwater levels and subsidence, but the Agencies identified frequency based on the nature of groundwater conditions. Because groundwater flows through porous media rather than in an open channel as surface water does, groundwater flows much more slowly than surface water. AR 74372. Therefore, the frequency necessary to detect changes in groundwater conditions is also much less. For example, a recent state report compared Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 34 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 25 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT groundwater measurements in the spring (higher levels) and the fall (lower levels) from year-to-year to assess changes in groundwater conditions. AR 73334-41. Most of the wells that DWR maintains water level records for contain on the order of 2 measurements per year. See AR 73585-618. Some wells are measured more frequently and some less frequently. Id. The EIS/EIR’s weekly required monitoring efforts are much more frequent than existing monitoring, and waiting one week to confirm measurements before taking subsidence actions is not likely to exacerbate potential impacts. The EIS/EIR complies with CEQA because its formulation of mitigation and the Agencies’ conclusion that it will be effective are supported by substantial evidence. SOCA, 229 Cal.App.3d at 1027. 3. Mitigation Measures GW-1 and WS-1 Include Appropriate and Realistic Guidance that Ensures Effectiveness. Sections 3.1, 3.2, and 3.3 of the EIS/EIR provide detailed evaluation of potential impacts in relation to water supply, water quality, and groundwater resources, and explain how implementation of groundwater substitution and cropland idling water transfers may result in reductions in groundwater levels. AR 25697, 27422. Reductions in groundwater levels are not, of themselves, significant environmental impacts. AR 25697. Rather, the EIS/EIR explains that transfers result in changes in groundwater levels that cause secondary effects to other water users or biological resources, or land subsidence. AR 25697, 25756. Measure GW-1 and Mitigation Measure WS-1 (“Measure WS-1”) ensure that such impacts will not be significant. AR 28-33, 28188-98. In Plaintiffs’ view, Measures GW-1 and WS-1 lack sufficient performance criteria to mitigate the potential effects of water transfers. Doc. 45 at 38. Plaintiffs ignore established legal principles regarding the extent to which an agency can, of necessity, rely on mitigation that defers some amount of environmental problem solving until specific actions are proposed and implemented. See Guidelines § 15126.4(a)(1)(B); SOCA, 229 Cal.App.3d at 1019-23, 1027-30. CEQA recognizes the potential for situations where, as here, it is impractical to forecast certain variables and it is uncertain, even after detailed expert study, whether a particular impact even will occur. CAR 41-42; AR 14788, 14861-62, 14896, 25708, 25752-56, 27967; see Endangered Habitats League v. City of Orange, 131 Cal.App.4th 777, 793-96 (2005) (“EHL”); Save Cuyama Valley, 213 Cal.App.4th at 1070-71; Treasure Island, 227 Cal.App.4th at 1061. The EIS/EIR therefore describes a mitigation program Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 35 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 26 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT providing for monitoring, further review of available means of mitigating potential impacts, and a plan for implementation and verification. CAR 38-43; AR 25526-27, 25759-66, 27967, 28188-98. The plans will be specific to the seller’s situation, including the volume and location of transfers (within the range of those analyzed in the EIS/EIR). Id. Because the plans must be developed based on conditions at the time of transfer, it is not possible to formulate more specific measures in the EIS/EIR. AR 27967-68. The mitigation program describes the strategies and components Reclamation will review along with guidance to ensure that adequate measures are implemented. See, e.g., AR 25759-66, 27968. Such an approach affords necessary but clearly directed flexibility, allowing later tailoring of the measure to the specific characteristics of individual transfers to meet the established significance criteria. Guidelines § 15126.4(a)(1)(B); Hayward, 242 Cal.App.4th at 854-55 (agency may rely on future studies or monitoring to devise specific mitigation when results are used to tailor measures to fit on-the-ground environmental conditions); City of Maywood v. Los Angeles Unified Sch. Dist., 208 Cal.App.4th 362, 411-12 (2012) (“Maywood”) (same); Riverwatch, 76 Cal.App.4th at 1447-49 (deferral of specific mitigation is appropriate when extent of mitigation required depends on results of later study). The level of guidance in the mitigation measures complies with CEQA, which “does not define how specific the performance standards set forth in an EIR must be.” CBD, 234 Cal.App.4th at 242. While the general rule against deferred mitigation bars reliance on generalized goals, precise performance standards for mitigation are not required. North Coast, 216 Cal.App.4th at 630. A requirement that the specifics of mitigation be developed in later consultation with affected parties or experts and subject to review and approval of regulatory agencies is sufficient to ensure that potential impacts will be adequately mitigated. Id.; see also Clover Valley, 197 Cal.App.4th at 244 (upholding mitigation to be imposed at later stage of review that would “minimize” project’s impact); Gray v. Cnty. of Madera, 167 Cal.App.4th 1099, 1126-27 (2008) (upholding mitigation requiring project to avoid effects on third parties); EHL, 131 Cal.App.4th at 794 (upholding plan to “assure public safety” during implementation). Objectives that inform the agency “what it is to do and what it must accomplish” are sufficient. CBD, 234 Cal.App.4th at 245; see North Coast, 216 Cal.App.4th at 630- 31. The strategies in Measures GW-1 and WS-1 comply with these principles. CAR 38-42; AR Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 36 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 27 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 28188-98. (a) Mitigation Measure GW-1 Ensures Impacts on Other Water Users Are Not Significant. Measure GW-1 sets out requirements to detect and rectify any potentially significant groundwater impacts to third parties. AR 28189-98. These requirements are informed by the DRAFT Technical Information for Preparing Water Transfer Proposals (“White Paper”), which is revised regularly. CAR 39; AR 25759, 27700, 27966, 28189. Measure GW-1 draws from that reference in formulating its independent requirements and guidance for implementation. CAR 39-42; AR 25759- 25766, 28189-98; see Doc. 45 at 36-37. The White Paper requests specific formats for well data or other information that are not included in Measure GW-1; however, the fundamental data requirements found in the White Paper are specified in the EIS/EIR as needed to reduce impacts to less-than-significant levels. CAR 39-42; AR 25759-66, 28189-98. Comments on the Draft EIS/EIR requested more specificity in Measure GW-1 regarding monitoring triggers – events that would cause actions in the mitigation plans to take effect. AR 27431, 27464. The Final EIS/EIR clarified those requirements. AR 25759-66. The primary triggers used to detect potential secondary impacts associated with groundwater levels are the Basin Management Objectives (“BMOs”) set by Groundwater Management Plans (“GMPs”). AR 25759, 27431. Many GMPs set quantitative groundwater elevation triggers for their BMOs, which provide a definite benchmark for monitoring groundwater levels for reductions that may result in environmental impacts. AR 25759, 27431-34. In areas where quantitative BMOs do not exist, the Agencies and potential sellers will coordinate closely with potentially affected third parties to collect and monitor groundwater data. CAR 39-40; AR 25760-61, 27434, 28191-193. If warranted, additional monitoring will be incorporated. Id. Requirements involving third parties are directly linked to satisfying the significance criteria and avoiding effects on other water users. AR 25702, 28035; see Save Cuyama Valley, 213 Cal.App.4th at 1071. “[T]he fact the entire extent and precise detail of the mitigation that may be required is not known does not undermine the final EIR’s conclusion that the impact can in fact be successfully mitigated.” Riverwatch, 76 Cal.App.4th at 1447. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 37 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 28 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (b) Mitigation Measure GW-1 Ensures Impacts Related to Land Subsidence Are Not Significant. Plaintiffs claim Measure GW-1 allows irreversible subsidence to occur. Doc. 45 at 39-43. Land subsidence is the lowering of the land-surface elevation caused by, among other things, groundwater levels falling below historic low levels. AR 25666-67. As noted above, effects from transfer-related pumping typically are within the range of existing seasonal fluctuation of local groundwater and do not cause overdraft conditions. AR 27434. Section 3.3 of the EIS/EIR nevertheless analyzes the potential for land subsidence to occur in connection with water transfers to the degree reasonable and appropriate based on available data. AR 25599, 25753-54, 26925-46, 27434-35; see Guidelines § 15145. Like groundwater levels, lowered land-surface elevations are not, of themselves, significant environmental impacts, but may result in significant impacts if they cause permanent loss of aquifer capacity or damage to structures or physical features. AR 25697.14 In an ideal world, subsidence and its associated impacts would be entirely predictable and preventable; in reality, however, subsidence-related effects often cannot be foreseen with any degree of certainty. AR 25697. The EIS/EIR recognized that the potential for subsidence-related impacts is limited in most parts of the Study Area; where it might occur depends on a variety of localized factors and remains unclear. AR 25667-69, 25704-08, 27434, 27560. Mitigation of potential effects related to subsidence therefore is necessarily situational, local, and adaptive. AR 25759-66, 27434-37. This led the Agencies to develop a multi-stage process to address the uncertainty regarding potential effects. AR 25380-81, 25757-66, 27434-37; see Rialto Citizens v. City of Rialto, 208 Cal.App.4th 899, 944-45 (2012) (practical considerations may prevent mitigation from being “fully formulated” in EIR). Plaintiffs assert that Measure GW-1’s triggers to require subsidence mitigation actions would allow irreversible subsidence; however, the triggers were selected based on monitoring data of 14 While some areas of California have experienced significant environmental effects caused by groundwater overdraft and land subsidence, most land subsidence is neither dramatic nor permanent. AR 25666-68, 25680, 25683-84, 25693. Analysis of subsidence in the Study Area shows that most hydrocompaction (clay soil compaction caused by groundwater depletion) is reversible. AR 25666- 67. Monitoring the rate of subsidence relative to the rate of groundwater withdrawal typically shows when the soil may pass from elastic compaction to inelastic compaction. Id. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 38 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 29 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT reversible subsidence. CAR 40-42; AR 28193-98. Subsidence monitoring in the Sacramento Valley indicates that a certain amount of land subsidence recovers each winter. AR 25666-69; AR 27434-37. This portion, known as reversible subsidence, does not represent a long-term change in ground surface levels. Id. This measurement of reversible subsidence was the basis of the threshold in Measure GW- 1, above which irreversible subsidence may potentially occur, such that the sellers must take mitigation actions to avoid it. CAR 40-42; AR 28193-98. These measures fully comply with CEQA. Guidelines § 15370. As recognized in Guidelines section 15370(c), some mitigation measures do not avoid an environmental impact but rectify or correct it by restoring the affected environment or resource.15 In some situations it is impractical to forecast certain variables and determine whether a particular impact even will occur. Guidelines §§ 15145, 15064(d)(3); Treasure Island, 227 Cal.App.4th at 1060-61; Cadiz Land Co. v. Rail Cycle, 83 Cal.App.4th 74, 107-08 (2000). The agency complies with CEQA through a reasonable good faith effort to anticipate, promptly recognize and correct any significant project impact. See, e.g., EHL, 131 Cal.App.4th at 793-96; Save Cuyama Valley, 213 Cal.App.4th at 1070-71; Riverwatch, 76 Cal.App.4th at 1447. Here, the EIS/EIR analyzes potential impacts to the extent feasible, implements monitoring to detect the potential for significant effects associated with land subsidence, and requires mitigation plans and financial assurances to ensure prompt corrective action in the event unanticipated effects occur despite monitoring efforts. CAR 29-30; AR 25704-56, 25758-66.16 Substantial evidence demonstrates that this multi-stage approach will avoid significant (irreversible) land subsidence. AR 25697, 25759-66; SOCA, 229 Cal.App.3d at 1027. (c) Mitigation Measures GW-1 and WS-1 Ensure Impacts from Streamflow Depletion Are Not Significant. In Plaintiffs’ view, the EIS/EIR “illegally defers Mitigation Measure WS-1” related to surface 15 See also 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2016) § 14.7, p. 14-9 (giving examples of corrective mitigation). 16 By providing as part of the monitoring protocol that the Agencies must confirm whether impacts actually were caused by the transfer, the Agencies merely recognized that subsidence can be caused by a number of factors that lower the water table, including other non-transfer-related groundwater pumping. AR 25759-66, 27434-37; see Doc. 45 at 42. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 39 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 30 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT water impacts. Doc. 45 at 43-45. The record shows, however, that the adopted mitigation complies with CEQA. Changes in groundwater-surface water interaction and their results (e.g., streamflow reduction, impacts to ecosystems) are difficult to measure in the field. AR 27559, 27560, 27562. For a potential reduction in streamflow to occur due to a groundwater substitution transfer, the groundwater level must be lowered. AR 25901, 25978, 25984-85. Changes in groundwater levels are quicker and simpler to measure, so Measure GW-1 is identified to avoid potential significant impacts associated with streamflow depletion. AR 25383, 25992-93. Section 3.7 of the EIS/EIR analyzed streamflow depletion impacts to fisheries, and determined that the changes in flows on small creeks and streams would be insubstantial and would not be at times or locations that would have significant effects on sensitive fish species. AR 25939. The EIS/EIR assessed streamflow depletion impacts on riparian vegetation, and found the potential for significant impacts. AR 25992-93. These potential effects would be addressed through Measure GW-1, which requires monitoring and mitigation plans customized to the seller’s conditions and subject to Reclamation’s review, approval, and verification, to avoid significant impacts. AR 25759-66, 25992-93. Another measure, Measure WS-1, is focused on avoiding surface water supply effects on the environment or third parties. CAR 28-29; AR 25522, 28188. This measure relates to implementation of the “streamflow depletion factor” – a percentage of the total groundwater substitution transfer that will not be available to the recipient of the transfer water because it is used to offset streamflow effects. AR 27439. The streamflow depletion percentage could vary based on hydrological conditions as determined through monitoring and modeling data. AR 27439, 28188; see Riverwatch, 76 Cal.App.4th at 1447. Based on sensitivity analyses and modeling of pre- and post-transfer hydrology, Measure WS-1 imposes a minimum streamflow depletion factor of 13 percent, which will be adjusted by Reclamation in coordination with DWR based on best available technical information as well as public input. AR 25527, 27437-40, 28188. This approach complies with CEQA. Hayward, 242 Cal.App.4th at 854-55; Maywood, 208 Cal.App.4th at 411-12. 4. Recirculation Is Not Required Because the Final EIS/EIR Does Not Add Significant New Information. Plaintiffs assert that the Agencies were required to recirculate the Final EIS/EIR based on new Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 40 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 31 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT information regarding Measure GW-1. Doc. 45 at 43. Plaintiffs’ claim ignores CEQA’s legal standard for recirculation. An EIR must be recirculated for public review only when “significant new information” is added after the close of the public comment period on the draft and before certification of the final document. Guidelines § 15088.5(a), (b). Information added to an EIR is not “significant” unless it identifies a new or substantially more severe adverse environmental effect of the project, or a feasible way to mitigate or avoid such an effect that the project’s proponents have declined to implement. Id. at (a)(1)-(3); Beverly Hills Unified Sch. Dist. v. Los Angeles Cnty. Metro. Transp. Auth., 241 Cal.App.4th 627, 660-61 (2015). Recirculation is not required where, as here, new information clarifies or amplifies the information in the EIR. Guidelines § 15088.5(b). “[R]ecirculation is not required simply because new information is added [to the draft]” – indeed, that is virtually always the case given CEQA’s requirement to respond to public comments. Rather, recirculation “was intended to be an exception rather than the general rule.” Laurel Heights II, 6 Cal.4th at 1124, 1132. If not, then the lead agency and/or project proponent would be penalized for adding information in response to comments on the draft that improves the project and its mitigation measures – which is exactly the situation presented here. See, e.g., AR 27431-34, 27443-46. The revisions in the Final EIS/EIR provide additional data and information in response to comments that confirms the conclusions in the Draft EIS/EIR and strengthens identified mitigation measures. See generally AR 25361 et seq.; Beverly Hills, 241 Cal.App.4th at 663. The information in Measure GW-1, for example, clarifies the analysis in Section 3.3 regarding Groundwater Resources and improves the project by further reducing the potential for environmental effects. AR 25759-66; see also AR 25697-770, 27964, 27966. Plaintiffs’ position appears to be that, because the Agencies welcomed public input and ensured that it was reflected throughout the NEPA/CEQA process, further rounds of review are required. Doc. 45 at 43. In reality, evolution of the project and its mitigation in response to comments is likely and perhaps inevitable, and certainly desirable. City of Irvine, 238 Cal.App.4th at 557-58. CEQA is intended to inform public decision-making in precisely this manner; however, it is not designed to condemn proposed activities to endless rounds of review. Id. at 558; Laurel Heights II, 6 Cal.4th at 1129-32. As such, the Agencies properly determined that recirculation is not required. Guidelines § 15088.5; CAR 05-06. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 41 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 32 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT An agency’s decision not to recirculate, whether explicit or implicit, is given substantial deference and is presumed to be correct; Plaintiffs bear the burden of proving otherwise. Baykeeper, 242 Cal.App.4th at 224. In this case, Plaintiffs cite generally to Guidelines section 15088.5 and offer no analysis to support any claim that the information in the Final EIS/EIR triggers recirculation. Doc. 45 at 43. To the extent Plaintiffs attempt to argue a fundamental lack of information in the Draft EIS/EIR that precluded meaningful public review and comment, nothing in the record supports such a contention. Doc. 45 at 43; see Guidelines § 15088.5(a)(4). E. The EIS/EIR Evaluates a Reasonable Range of Alternatives. While Plaintiffs’ criticisms of the EIS/EIR’s alternatives are not directed toward the Water Authority (Doc. 45 at 45-49), as shown below, the alternatives analysis satisfies CEQA. 1. The EIS/EIR’s Alternatives Were Properly Developed and Selected Based on the Project’s Objectives. “The process of selecting the alternatives to be included in the EIR begins with the establishment of project objectives by the lead agency.” In re Bay-Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 43 Cal.4th 1143, 1163 (2008); Guidelines §§ 15124(b), 15126.6(a). In this case, the EIS/EIR sets forth three basic objectives of (1) immediacy, (2) flexibility, and (3) provision of substantial water. AR 25373, 26361-62. Based on these objectives, the Agencies conducted a structured, documented process to identify and screen alternatives. AR 25449-52, 26361- 64. The resulting action alternatives evaluated in the EIS/EIR not only reflect a reasonable range of options but a range of combinations of those options. AR 25451-52. This is sufficient to “intelligently consider” alternatives to the proposed action and facilitate a reasoned choice. See Cherry Valley Pass Acres & Neighbors v. City of Beaumont, 190 Cal.App.4th 316, 355-56 (2010). 2. The Alternatives Examined in the EIS/EIR Represent a Reasonable Range Consistent With CEQA Standards. CEQA imposes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. See Guidelines § 15126.6(a). The lead agency’s selection of alternatives “will be upheld as long as there is a reasonable basis for the choices it has made.” Maywood, 208 Cal.App.4th at 414. Here, the Agencies identified various water transfer methods that meet the project objectives and Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 42 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 33 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT developed a reasonable range of alternatives that include a variety of water transfer options, including the “no project” alternative and a “no groundwater substitution” alternative. CAR 34-36; AR 26387. Plaintiffs criticize the EIS/EIR alternatives analysis for not including specific measures or combinations they wanted. Doc. 45 at 45-50. The record makes clear, however, why none of the measures urged by Plaintiffs would meet the basic project objectives. The “buyer service area conservation” measure did not move forward for detailed consideration in the EIS/EIR, for example, because it did not satisfy two of the three basic project objectives—immediacy and provision of substantial water. AR 26379-80. The “buyer area transfer” measure likewise did not move forward for detailed consideration in the EIS/EIR because it did not meet the fundamental project objective of providing substantial water. AR 26384. The EIS/EIR explains how transfers within the buyer service area already occur frequently (AR 26373), and given these existing transfers, “additional transfers . . . would not provide substantial water to reduce CVP shortages.” AR 26384. Evaluation of a “no reservoir release” option also was unnecessary because it would not have been substantially different from the other alternatives considered and would not avoid or substantially lessen any potentially significant impact of the Proposed Action. AR 25451-52, 27587. An EIR need not discuss alternatives that do not offer significant environmental advantages in comparison with the project or with the alternatives that are presented in the EIR. Guidelines § 15126.6; Tracy First, 177 Cal.App.4th at 929. Similarly, land retirement outside of the San Joaquin Valley was not considered in detail in the EIS/EIR because it meets none of the three basic project objectives. AR 26370, 26382. Essentially, Plaintiffs’ preferred options are not alternatives to the proposed project, they are a different project, and would defeat the Agencies’ core objectives. CAR 34-36; AR 25451-52, 26387. F. The Water Authority Is a Proper Lead Agency. Plaintiffs assert that the EIS/EIR “was prepared and certified by an improper CEQA lead agency.” Doc. 45 at 8-12. The lead agency is the “public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.” Cal. Pub. Res. Code § 21067; PCL II, 180 Cal.App.4th at 239 (public agency that shoulders primary responsibility for implementing a project is lead agency, even though other public agencies have roles in approving it). “If the project will be carried out by a public agency, that agency Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 43 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 34 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT shall be the lead agency even if the project would be located within the jurisdiction of another public agency.” Guidelines § 15051(a). Here, the Water Authority is the proper lead agency because it “is anticipated to be negotiating transfer agreements with potential sellers on behalf of Participating Members, and as such, would be a key party in the range of potential transfers analyzed in the EIS/EIR.” CAR 2544; AR 25442-44, 27421. The Water Authority’s members make up the majority of potential buyers for the transfers analyzed in the EIS/EIR. AR 25370, 25467. In Plaintiffs’ view DWR should have been the lead agency. Doc. 45 at 8-12. Plaintiffs are wrong. Water transfers are voluntary actions proposed by willing buyers and sellers and are not initiated by state agencies. AR 27422. DWR will not be a party involved in negotiating the transfers identified in the EIS/EIR, nor will the agency be party to any of the transfer contracts. Id. Nor will DWR approve water transfers involving CVP facilities or CVP water. Id. While DWR has an overall interest in facilitating transfers in California, its jurisdiction “is limited to transfers affecting the Sacramento-San Joaquin Delta (Delta) export facilities of the State Water Project [SWP].” AR 136214. For transfers analyzed in the EIS/EIR, DWR will have a limited role coordinating with Reclamation on review of potential transfer information packages (to help ensure consistency between CVP-related and non-CVP-related transfers). AR 27422. DWR also may help facilitate transfers through the SWP system in some years. Id. This is not a role with “principal responsibility” such that DWR should be the CEQA lead agency. Cal. Pub. Res. Code § 21067; Guidelines § 15367. In the PCL II case, for example, the appellants challenged an EIR concerning a water transfer from two local agencies to a third local agency, Castaic Lake Water Agency (“Castaic”). PCL II, 180 Cal.App.4th at 219. As here, the appellants argued that DWR, not Castaic, was the appropriate lead agency to review the transfer. Id. at 239. The court rejected that argument, reasoning that “‘[t]he core of the project is a local transfer of water between Castaic and Wheeler Ridge. Castaic alone had the responsibility to determine the water needs of its service area and to obtain the necessary water for those needs. Castaic negotiated and entered into the transfer contract with Wheeler Ridge.’” Id. at 240. “The fact that DWR has approved the transfer and supplies the water does not make it the lead agency, as DWR is obliged by statute to facilitate such transfers (Wat. Code, § 109).” Id. Further, the court explained that “Castaic is the project’s prime mover.” Id. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 44 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 35 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Likewise here, the Water Authority, not DWR, has the greatest responsibility for determining the water needs of its members and in helping obtain the necessary water for those needs. CAR 14, 16; AR 25370-71, 25430-32, 25467. The EIS/EIR covers water transfers that involve CVP contractors and require Reclamation approval; DWR approval is only required for these transfers if they also involve use of SWP facilities. AR 25443-44, 27421-22. The fact that DWR may be involved in approving or facilitating some transfers does not mean that DWR was the proper lead agency. PCL II, 180 Cal.App.4th at 219; see also Ctr. for Biological Diversity v. Cnty. of San Bernardino, 247 Cal.App.4th 326, 339-43 (2016) (county’s supervisory role over groundwater pumping under proposed plan did not make it lead agency where local water district had “the greatest responsibility for supervising the Project as a whole” (italics in original)). Plaintiffs argue that PCL II is distinguishable because “all of the Project’s potentially significant impacts to water resources fall outside the jurisdiction of SLDMWA.” Doc. 45 at 10. Plaintiffs are wrong. The location of a project or its potential project impacts does not determine the proper lead agency. Guidelines § 15051(a); Cnty. San. Dist. No. 2 v. Cnty. of Kern, 127 Cal.App.4th 1544, 1633 (2005). Responsibility for carrying out or approving the project is the key test. PCL v. Dep’t of Water Res., 83 Cal.App.4th 892, 904-06 (2000) (“PCL I”) (DWR was proper lead agency because it had “the principal responsibility for carrying out or approving the implementation” of agreement to amend most of SWP water service contracts). The EIS/EIR analyzes only potential transfers to CVP contractors; DWR has no responsibility regarding actions involving the CVP, and will be involved only in those transfers requiring use of SWP facilities. AR 25443-44. Because the Water Authority, not DWR, is expected to have principal responsibility for negotiating and carrying out many of the water transfers covered in the EIS/EIR, the Water Authority is the proper lead agency under CEQA – a role it diligently carried out by conducting more environmental analysis than was legally required, and in a comprehensive and systematic manner. G. The Agencies’ Environmental Review and Determinations Are Consistent with the Public Trust Doctrine. Plaintiffs make a cursory CEQA claim based on the public trust doctrine. Doc. 45 at 49:10- 50:6. Plaintiffs’ Amended Complaint and Petition for Writ of Mandate contains no cause of action Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 45 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 36 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT regarding the public trust doctrine; instead, it contains a single allegation referring to the doctrine as part of its claim against the Water Authority for “Violations of CEQA,” alleging: “The EIS/EIR fails to demonstrate consistency with Public Trust Doctrine requirements.” Doc. 16 at 43:19-20. In their brief, Plaintiffs argue that “state agencies have an affirmative duty to perform a public trust consistency analysis, based on substantial evidence in the administrative record, as a part of their CEQA review.” Doc. 45 at 49:22-24 (citing Baykeeper, 242 Cal.App.4th at 242). Plaintiffs rely on San Francisco Baykeeper, Inc. v. California State Lands Commission, 242 Cal.App.4th 202 (2015). Plaintiffs misconstrue Baykeeper as requiring a public trust impact analysis to be a “component within the greater CEQA review process . . . .” Doc. 45 at 49:26-50:6. To the contrary, Baykeeper treated a state agency’s public trust obligations as separate and independent of the agency’s obligations under CEQA. Baykeeper, 242 Cal.App.4th at 242 (describing “basic question” as “whether the public trust doctrine imposes any obligation to demonstrate affirmatively that the state has taken the public trust into account when making a decision about the management and use of trust property, whether in the context of a CEQA review or otherwise”). Indeed, the Baykeeper court found that while the State Lands Commission had not fulfilled its public trust obligations, its EIR did not violate CEQA. Id. at 243. Plaintiffs’ attempt to base a CEQA violation on a supposed, unsubstantiated failure by the Water Authority to satisfy the public trust doctrine should be rejected. H. Plaintiffs’ ESA Claims Against Reclamation and the U.S. Fish and Wildlife Service Should Be Rejected. 1. The Court Lacks Jurisdiction to Hear Plaintiffs’ ESA Claim Against Reclamation Because Plaintiffs Failed to Comply with ESA Notice Requirements. Section 11(g) of the ESA prohibits any person alleging a violation of the ESA from commencing litigation “prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation . . .” 16 U.S.C. § 1540(g)(2)(A)(i). This requirement is jurisdictional. Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998) (“Sw. Ctr.”). “A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA.” Id. (citing Lone Rock Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 46 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 37 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Timber Co. v. U.S. Dep’t of Interior, 842 F. Supp. 433, 440 (D.Or. 1994); see also Ctr. for Envtl. Science, Accuracy & Reliability v. Cowin, No. 1:15-cv-00884 LJO BAM, 2015 WL 543050 (E.D. Cal. Sept. 14, 2015) (“A district court may not disregard such a notice requirement at its discretion.”). The ESA notice requirement applies to Plaintiffs’ Fourth Claim for Relief against Reclamation, which alleges that Reclamation’s “determination that the Project would have no effect on listed species, and the resulting determination not to re-initiate consultation with USFWS and NMFS” was “arbitrary and capricious, and not in accordance with the ESA.” Doc. 16 at ¶ 162; see Forest Guardians v. Johanns, 450 F.3d 455, 465 (9th Cir. 2006); S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., 629 F. Supp. 2d 1123, 1133 (E.D. Cal. 2009). Plaintiffs failed to comply with the ESA’s written notice requirement however. The operable complaint, Plaintiffs’ First Amended Complaint, includes an ESA claim against Reclamation, but is devoid of any allegation that Plaintiffs provided written notice of the alleged violation to the Secretary and Reclamation. First Amended Complaint, Doc. 16. Plaintiffs’ Motion for Summary Judgment (Doc. 45) also alleges violations of the ESA, but is mute on the subject of notice. See Doc. 45 at 50-61. Federal Defendants’ administrative record is likewise devoid of any 60-day notice letter. See Administrative Record Index, Parts 1-2. Plaintiffs’ reliance on the Administrative Procedure Act, 5 U.S.C. § 500 et seq. (1946) (“APA”) for review of the claim against Reclamation is misplaced because the APA “authorizes review only when ‘there is no other adequate remedy in a court.’” Bennett v. Spear, 520 U.S. 154, 161-62 (1997). If a claim falls within the scope of the ESA’s citizen-suit provision, the APA is unavailable and cannot be used to excuse compliance with the ESA’s notice requirement. See, e.g., Hawaii Cnty. Green Party v. Clinton, 124 F. Supp. 2d 1173, 1193 (D. Haw. 2000). The Court therefore lacks jurisdiction to hear Plaintiffs’ ESA claim against Reclamation. 2. Plaintiffs’ ESA Claim against the U.S. Fish & Wildlife Service Fails Because USFWS Adequately Justifies and Supports the Programmatic BiOp with the Best Scientific and Commercial Data Available. While the sixty day notice requirement does not apply to Plaintiffs’ ESA-related claim against Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 47 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 38 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT USFWS, that claim fails for other reasons. Bennett v. Spear, 520 U.S. at 166, 176.17 In ensuring that Reclamation’s approval of the transfer of water from willing sellers to CVP contractors was “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species,” USFWS was required to “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2); see 50 C.F.R. § 402.14(g)(8). In preparing the “Programmatic Formal Consultation for Bureau of Reclamation’s Proposed Central Valley Project Long Term Water Transfers (2015-2024) with Potential Effects on the Giant Garter Snake within Sacramento Valley, California” (“Programmatic BiOp”), USFWS adhered to that requirement. (a) USFWS Adequately Justifies the Programmatic BiOp’s Conservation Measures. Plaintiffs argue that USFWS’s non-jeopardy determination is “based on conservation measures” that “are not based on the best available science and are not effective to avoid jeopardy of the GGS.” Doc. 45 at 50:18-21. Specifically, Plaintiffs attack FWS’s “changed position” regarding parcel size and distribution restrictions and the treatment of rice fields. Id. at 51:13-15, 53:15-16. However, “‘[t]he best available data requirement ‘merely prohibits [an agency from disregarding available scientific evidence that is in some way better than the evidence [it] relies on.’” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006) (quoting Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir. 2000)). Plaintiffs do not point to any new scientific data that was omitted from consideration relevant to the inclusion of habitat modeling in the Programmatic BiOp’s conservation measures. See Doc. 45 at 50-56; see also AR 47643-48. Instead, Plaintiffs argue that USFWS failed to justify its change in approach to conservation with new science. Id. at 51:20, 52:3-9. But, the record shows otherwise. USFWS explained its change in approach in the Programmatic BiOp itself. At page 12, the Programmatic BiOp states: 17 Unlike Plaintiffs’ claim against Reclamation, Plaintiffs’ ESA claim against USFWS is not subject to the citizen-suit provision. Bennett v. Spear, 520 U.S. at 166, 176. Hence, it is subject to review under the standards of the APA. Id. Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 48 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 39 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT The proposed project would incorporate conservation measures consistent with the Central Valley Project 2014 Water Transfers Biological Opinion . . . and the Draft Technical Information for Water Transfers Proposals in 2014 (Reclamation and DWR 2013). Commitments that broadly restrict idling across the service area were refined to focus on cropland idling restrictions in areas where snakes have a high [likelihood] of occurrence. . . . Reclamation is implementing a conservation strategy that requires water to be maintained in areas most important to snakes and that transfer water not be made available from priority conservation areas (e.g., Natomas). AR 7924 (emphasis added).18 USFWS did justify its change in approach and cites to new science in the Programmatic BiOp—the Central Valley Project 2014 Water Transfers Biological Opinion and Draft Technical Information for Water Transfers Proposals in 2014—in support of its explanation. Id. Plaintiffs do not point to any new scientific data that was omitted from consideration regarding the conservation measures’ treatment of drains and canals, either. See Doc. 45 at 53:15-54:4. Plaintiffs instead mischaracterize the Programmatic BiOp’s treatment of drains and canals. Plaintiffs allege that USFWS has “limit[ed] the scope of protection to ‘drains and canals,’” which ignores the significance of rice fields as important habitat. Doc. 45 at 53:19-22. But in the section of the Programmatic BiOp addressing conservation measures, the Programmatic BiOp directly addresses rice fields, stating: “[d]istricts proposing water transfers made available from idled rice fields will ensure that adequate water is available for priority habitat with a high likelihood of snake occurrence . . .” AR 7925. This paragraph demonstrates that protection is not limited to “drains and canals.” Id. (b) Changes Between the Final Programmatic BiOp and the April 2015 Programmatic BiOp It Replaced Do Not Establish Arbitrary or Capricious Action by USFWS. Plaintiffs argue that “the USFWS arbitrarily weakened GGS protections utilized in prior water transfer projects in the BiOp that was issued on April 30, 2015” and prepared a “subsequent BiOp for the Project just a month later in June 2015 . . . that even further weakened GGS protections.” Doc. 45 at 54:6-10 (emphasis in original). Contrary to Plaintiffs’ claims, however, changes between the April 18 Plaintiffs’ argument confuses this issue by repeatedly citing to the superseded April 30, 2015 Programmatic BiOp (AR 7056-95). Doc. 45 at 50-56. The June 4, 2015 Programmatic BiOp (AR 7913-67) is the final, operative document for purposes of judicial review of the agency’s action. Because the June 4, 2015 Programmatic BiOp superseded the April 30, 2015 Programmatic BiOp, any claims regarding problems in the earlier BiOp are moot. See, e.g., American Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir. 1997). Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 49 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 40 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 2015 Programmatic BiOp and the final June 2015 Programmatic BiOp do not render the final opinion arbitrary and capricious. See id. at 54:6-56:15. The record shows that less than two weeks after USFWS adopted the April 2015 Programmatic BiOp, Reclamation requested revisions “to reflect changes and corrections to the Conservation Measures related to cropland idling transfers within the Description of the Action.” AR 7913. Changes between the two documents are irrelevant so long as the final Programmatic BiOp is supported by the “best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2); see Sw. Ctr., 143 F.3d at 523 (rejecting argument that Secretary of Interior must explain rationale for adopting final RPA different from draft RPA). USFWS was not bound to adopt the unchanged April 2015 opinion that Plaintiffs think was more protective for GGS. Id. Plaintiffs’ allegation that there is no “legitimate biological or scientific basis” for changes between the biological opinions (Doc. 45 at 19-21) is wrong (see Section H.1 above). Plaintiffs have not identified any real contradictions between the final Programmatic BiOp and the April 2015 version that would render USFWS’s opinion arbitrary and capricious. For example, Plaintiffs allege that “[t]he April BiOp prohibited cropland idling/shifting transfers in ‘priority habitats with a high likelihood of snake occurrence (60 percent or greater probability)’” (Doc. 45 at 54:16-18), but the final Programmatic BiOp includes the same prohibition, albeit with slightly different wording (see AR 7019). This change is not material and USFWS explained the basis for the changes to the conservation measures. V. CONCLUSION Plaintiffs seek a peremptory writ of mandate—an extraordinary and discretionary remedy that compels a public agency to perform a legally required public duty. Mandamus relief is available only to compel an agency to perform an act required by law. The Water Authority has no such mandatory duty here, however. It has no legal obligation to prepare a comprehensive, long-term environmental analysis of potential water transfers to its member agencies. Even if it did, Plaintiffs are not entitled to the relief they seek, because the Water Authority properly exercised its discretion under CEQA. /// /// Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 50 of 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1472113.1 10355-061 41 MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT For the foregoing reasons, Plaintiffs’ motion for summary judgment should be denied, and the Water Authority’s cross-motion for summary judgment should be granted. Dated: July 15, 2016 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD PIONEER LAW GROUP, LLP By: /s/ Daniel J. O’Hanlon Daniel J. O’Hanlon Andrea A. Matarazzo Attorneys for Defendant/Respondent, San Luis & Delta-Mendota Water Authority Case 1:15-cv-00754-LJO-BAM Document 48 Filed 07/15/16 Page 51 of 51