Preview
Sup@rior Couft Of Califor^is^
Sa£<'am«»to
ROB BONTA i
Attomey General of Califomia
2 ERIC M . KATZ f
Supervising Deputy Attomey General f-
3 LINDSAY WALTER, SBN 311142 JCCP S117
CAITLAN MCLOON, SBN 302798
4 COREY MOFFAT, SBN 305620
GWYNNE HUNTER, SBN 293241
5 STEPHEN SUNSERI,-SBN 207030
WILLIAM JENKINS, SBN 143616
6 Deputy Attomeys General
455 Golden Gate Avenue
7 SanFrancisco, CA 94102
Telephone: (415)510-3466
8 Fax: (415) 703-5480 EXEMPT FROM FILING FEES
E-mall: Wllllam.Jenklns@doj.ca.gov GOV. CODE § 6103
9 Attorneys for Respondent and Defendant California
Department of Water Resources
10-
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SACRAMENTO
12
13
cSf^:,- ^iss. . Wr.iti,v . vV
/ 15- : eO0RDINATK)N.P4t®^iE®ING' • Case No. C-JC-20-005117JGCPNO.-5n7 -
SPECIAL T I T L E [RULE 3.550]
16 CALIFORNIA DEPARTMENT OF
CDWR WATER OPERATIONS CASES WATER RESOURCES' OPPOSITION
17 TO SWC PARTIES' MOTION TO
The Included Actions: AUGMENT DWR'S ADMINISTRATIVE
18 RECORD r
Central Delta Water Agency, et al. v.
19 California Dept: of Fish and Wildlife, et al., Date: September 9, 2022
Superior Court, County of Sacraniento, Time: 10:00 a.m.
20 Case No. 34-2020-800003368 Dept: 27 - -
Judge: The Hon. Steven M. Gevercer
21 /The Metropolitan Water District of Trial Date: N/A
Southern California, et al., v. California Action Filed: November 4, 2020
22 "Dept. of Fish and Wildlife, et al., Superior
Court, County of Fresno, Case No.
23 20CECG01347
24 Tehama-Colusa Canal Authority, et al., v.
California Dept. of Water Resources,
25 Superior Courtj£j@ounty:ofiFresno, Case No.
20CECG01303 -
26 ?
State Water Contractors, et al., v. California
27 Dept. of Fish ^fid Wildlife, et al., Superior 1V.r.;
Court, County of Fresno, Case No.
28 20CECG01302
I
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
1
North Coast Rivers Alliance, et al., v. Dept.
2 of Water Resources, et al., Superior Court,
County of San Francisco, Case No. CPF-20-
3. 517078
4 San Bernardino Valley Municipal Water
District v. California Dept. of Water
5 Resources, Superior Court, County of
Fresno, Case No. 20CECG01556
6
San Francisco Baykeeper, et al., v.
7 California Dept. of Water Resources, et al.,
Superior Court, County of Alameda, Case
8 No. RG20063682
9 Sierra Club, et al. v. California Dept. of
Water Resources, et al., Superior Court,
10 County of San Francisco, Case No, CPF-20-
517120
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T A B L E OF CONTENTS
2 I Page
3 Introduction and Summaryfof Argument 7
Relevant Factual Backgroiuid 8
4
I. . DWR's Operation ofthe State Water Project 8
5
A. The State Water Project 8
6 B. DWR's Place In Califomia Govemment -8
C. DWR's Responsibility to Protect and Manage Califomia's Water
7
Supply ; 9
8 D. Long-Term Operation of the State Water Project 10
II. All Non-prlvlleged Documents Are Included In DWR's Certified
9
Administrative Record 11
10 - ' A. . DWR's Record Preparation and Privilege Assertions ......»11
B. DWR's Certified Administrative Record Contains Thousands of
11
Non-prlvlleged Inter-and Intra-Agency Communications ...13
12 Legal Standard .-13
13 Argument 16
I. Deliberative Process and Official Information Privileges Apply to All
14
. "-^Documents Withheld •.^5:...,.r;...16
15 / I I . __.pWR Prppedy V|telgi3^,4:b^^^^ .
Confidential, Pfe-peclsibnal lnfo
Disclosure 18
16
III. All Documents Relevant to the Court's Inquiry At the Merits Stage Are In
17 the Record.. : 19
18 IV. In-Camera Review Is Unnecessary , 21
Conclusion .' 21
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28
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
T A B L E OF AUTHORITIES
r2 \. Page
t3 j:
r- CASES ;'•
" 4 Bd. of Registered Nursing v. Superior Court
(2021) 59 Cal.App.5th 1011 14
5
Cal. First Amendment Coalition v. Superior Court
6
(1998) 67 Cal.App.4th 159 passim
7
CBS, Inc. V. Block
8 (1986) 42 Cal.3d 646 15
9 Citizens for Ceres v. Superior Court
(2013) 217 Cal.App.4th 889 ; 13
10
Citizens f o r Open Government v. City of Lodi ,
11 (2012) 205 Cal.App.4th 296 13, 14, 15
12
County of Orange v. Superior Court
13 (2003) 113 CaI.App.4th 1 20
. .14. County of Santa Clara v. Superior Court - ^ij
^^^^^^•T70^Gal:App.4th 1301 vv:::::;.:.:^:.:::^..:.:..::^.:^^^^^^
16 Golden Door Properties, LLC v. Superior Court
(2020) 53 Cal.App.5th 733 , 13
17
i 18 IslaridFilm, S.A. v. Dept. ofthe Treas. I.
L (D.D.C. 2012) 869 F.Supp.2d 123 .-. 15
: 19
Laurel Heights Improvement Assn. v. Regents of University of California
•20 (1993) 6 Cal.4th 1112 (Feb. 24, 1994) ......r. ; 19
21 Pfeiffer v. C.I.A.
(D.D.C;T989) 721 F.Supp. 337 :„...;:., , 16
-22
23 Regents of University of Califorma v. Superior Court
(1999) 20 Cal.4th 509 14
24
San Francisco Tomorrow v. City and County of San Francisco
:• ;::25 (2014) 229 Cal.App.4th 498 ..-..!;.. 21
26 San Joaquin County Local Agency Formation Com. v.^Superior Court'.
(2008) 162 Cal.App.4th 159 :. 20
^ 27
28
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
T A B L E OF AUTHORITIES
(continued)
2 1 Page
r
3 Shepherd v. Superior Court f
^ (1976) 17 Cal.3d 107 l 15
Times Mirror Co. v. Superior Court
5
(1991) 53 Cal.3d 1325 passim
United States Fish & Wildlife Serv. v. Sierra Club, Inc.
7 (2021) 141 S.Ct. 777 15
8 Wilson V. Superior Court
(1996) 51 Cal.App.4th 1136 14, 16, 17, 18
9 STATUTES
10
Califomia Endangered Species Act 9, 10, 20
11
Califomia Environmental Quality Act passim
12
13 Evidence Code
§ 1040 14, 15
14 § 1040, sva)d,(a^..;:;;^;..v.:.... ^:--\
§ 1040, subd. (b) :.,.:....^.^^^;.^...^: ..„ :. 14
Fish and Game Code
§ 700 ; \ 8
17
Govemment Code
18 § 6254, subd. (/) L 13
§ 6255 : : : 15, 17
19 § 6255, subd. (a).^.... ; 14
20 § 12800 8
§ 12850.2 7 : :. : 8
21 § 12850.4 8
§ 12853 1 ;. 8
22 § 12855 8
23 Publlc Resources Code
§21167.6, subd. (e) : 13
24
Water Code . ^
25 § 120 ;:..1;„...„: : : 8
26 §11451 , 9
§ 12931 ..7. 9
27 ' ^;
28 ^
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
1 T A B L E OF AUTHORITIES
(continued)
2 Page
3 Ot^HER A U T H O R I T I E S
4 Callfomia Code of Regulations, Title 14
§ 15384, subd. (a) : 20
5
6 The Honorable Ronald B. Robie
(1981) 64 Ops.Cal.Atty^Gen. 47 9
7
8
,^10
" 11
T2
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DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
Respondent and Defendant the Califomia Department of Water Resources (DWR) submits
2 this Opposition to the Motion to Augment the Administrative Records filed by Petitioners and
3 Plaintiffs State Water Contractors, et al. (SWQ-Parties).'
4 INTRODUCTION AND SUMMARY OF ARGUMENT
5 The SWC Parties' motion to augment DWR's record Is based on a narrow and unsupported
- 6 Interpretation ofthe deliberative process and official Information privileges and should be denied.
7 First, the withheld documents are the type of materials appropriately withheld under those
8 privileges because they contain pre-declslonal and confidential discussions and their disclosure
9 would chill decision making and policy development within the executive branch. Second, DWR
10 withheld documents only after determining that the publlc Interest In nondisclosure clearly
11 outweighed the public interest in disclosure. Transparency in the decision-making process Is of
12 paramount Importance to DWR, and the SWC Parties' contrary assertions are unfounded. Third,
13 all non-prlvlleged documents relevant to the Court's ultimate inquiry on the merits—^those
14 providing substantial e;s;ldence supporting the final agency action—are Included In DWR's
-15^ certified administrative record. Documents regarding tIte?F@lutioh of DWR's Long-Term '
16 Operation of the State Water Project from inception to final approval, the bases for the approved-
17 project and its incidental take permit (ITP), and thousands of non-privileged inter- and Intra-
18 agency documents and communications relevskit to and supportive of DWR's final actions are
L
19
Included in the certified record.^Finally, DWR'disagrees with the SWC Parties' assertion that In
20
camera review Is necessary. There are detailed declarations from both a senior attomey in DWR's
21
Office of General Counsel and DWR's Assistant Environmental Director for the State Water
22
Project that extensively describe the withheld documents' contents, the balancing test applied to
23
each docunient, and the consequences of their disclosure for the publlc at large. In camera review
24
has not been required in similar cases, and the SWC Parties fail to show that a different approach
25 ' Despite best efforts, DWR and the Calilbmia Department of Fish and Wildlife (CDFW)
26 (collectively, the Departments) were unable to jointly file a single opposition to the SWC Parties'
motion. The Departments separately oppose the' motion because each Department separately
27 prepared their own administrative records arid asserted privileges separately from one another,
and the factual bases supporting each Departments' opposition are distinct. Even so, the
28 Departments worked to streamline their responses to avoid any unnecessary repetition or
redundancy for the benefit of the Court and parties.
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
1 Is warranted here. For these reasons, the SWC Parties' motion to augment DWR's administrative
2 record should be denied. f
3 RELEVANT FACTUAL BACKGROUND
4 1. DWR'S OPERATION OF THE STATE W A T E R PROJECT -
5 A. The State Water Project
6 This case involves DWR's Long-Term Operation ofthe California State Water Project
7 (SWP) In the Sacramento-San Joaquin Delta (the LTO SWP or Project). The SWP Is a multi-
8 purpose water storage and delivery system that delivers clean water to 27 million Califomians,
9 750,000 acres of farmland, and businesses throughout the State. (Declaration of Lenny Grimaldo
. 10 (Grimaldo Decl.], ^ 9.) DWR operates the SWP subject to multiple layers of regulation, Including
11 By CDFW and other agencies. {Id., H 10.) '
12 --B. DWR's Place in California Government -
- 13 The Govemment Code organizes the executive branch into various agencies and
.-departments.. Both DWR and CDFW are two, among many, departrnents-ivithin the Califomia
-15 ^Wattiral ResdurGe§:-"A^^^GNRA). (Gi-imaldo Decl., 17; Wat.'Code,-§-120rFish-& G. Q o d e l ^ i
16 700; see, e.g.. Gov. Code, §§ 12800, 12855.) All agency secretaries, including the Secretary of
17 CNRA, report directly to the Govemor. (Gov. Code, §§ 12850.2, 12853, 12855.) The secretaries
18 of each agency "serve as the principal communication link forthe effective transmission of policy
19. problems arid decisions between the Govemor and each such department, office, or other unit."
20. -{Id., § 12850.2.) Agencies also coordinate among their departments to assistihe Govemor-in
21 development and Implementation of statewide policy. {Id., §§ 12850.2, 12850.4.) Given this
22 statutory stmcture, DWR's Director and staff, as well as those of CDFW and other departments,
23 regularly deliberate and communicate with their counterparts In other departments and agencies
24 within the execufive branch on matters affecting statewide policy. As discussed further below,
25 communicali<|ns of a.dejlberatlve nature must occasionally be withheld from publlc disclb^ulre
26 when theysTal! within certain recognized privileges. ^ "
27
28
8
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
C. DWR's Responsibility to Protect and Manage California's Water Supply
2 DWR's mission is to sustainably manage Califomia's water resources, in cooperation with
3 other agencies, to benefit the people of California and prptect, restore, and enhance the natural
4 and human environments. (Grimaldo Decl.,_l 7.) The Legislature created DWR to manage and
5 operate much of Califomia's water supply, Including the SWP. (/6/V/.; Wat. Code, § 11451.)^ The
6 SWP also Is subject to multiple layers of regulation by other agencies and departments, which are
7 charged with protecting species and their habitats under other statutory mandates, as CDFW is
8 under the Califomia Endangered Species Act (CESA). (Grimaldo Decl., 1 10.) DWR represents
9 the SWP's Interests when coordinating with these other agencies and departments. Including the
10 Govemor's Office, on various options and pQjgntlal issues about state water policy. {Id., 1 11.) As
11 a result, DWR must be able to engage In confidence with high-level officials throughout the
12 Govemor's Administration to discuss sensitive is'sues so as to arrive at informed, thoughtful,
13 timely, and organized decision-making on water policy. {Id., H 12-13.) For the same reason,
-14 DWR Is required to engage intei^^ly^thai.lt considers accurate,,forthright, and thorough
•'•i^i^^^l-5' ^.assessments in order tp Implement sound^water.policy. (M,:..lTi8.i^ . .. t:
16 To be effective at managing and operating the SWP, DWR must have frank discussions
17 within DWR, with CNRA, and other executive branch partners. Califomia water issues are
18 complex and require coordination of multiple agencies, (^d, 11 13, 16.) Disclosure of candid
L
19
discussions and predecislonal deliberations between govemment partners would discourage these
-.20
fulsome discussions from occurring. Candld-predecisional communications ensure accurate and
. 21
comprehensive Information Is shared and that differing viewpoints.are discussed freely without
22
public scrutiny. {Id., H 14, 18.) The implications of chilling such discussions could lead to
23
disastrous consequences for the publlc because staff would not engage In the kind of rigorous
24
debate and consideration needed for such a complex field of issues, (/t;?., H 15, 19.) The policies
jr^y. 25-
^ Water Code section 11451 is part of the "Central Valley Project Act," and the word
26 "project" In Section 11451 once applied to facilities v/ithln the Central Valley Project. However,
later enacted Water Code sections conferred broad powers to DWR to operate and maintain those
27 same facilities within the SWP. (See Wat. Code, § 12131.) As a result, the word "project" in
Section 11451 came to mean facilities in the SWP, and not the Central Valley Project. (See 64
28 Ops.Cal.Atty.Gen. 47 (1981).) ^
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
related to water, including the competing Interests of species protection and agricultural and
2 municipal water suppi j', are of the utmost importance to the people of Califomia. {Ibid.)
3 D, Long-Terfh Operation of the State Water Project
4 On November 22, 2019, DWR released its Draft Environmental Impact Report (EIR) for
5 the SWP LTO project and circulated It for public review and comment for 45 days. (Appendix of
6 DWR's Excerpts of Admlnlstrafive Record [DWR Appx.], CDWR_D1_3.)^ The Draft EIR
7 Included an analysis of a proposed project and several alternatives, including Altemative 2b. {Id.,
8 CDWR_D1_2.) During the public review period, DWR held a public meeting and also received
9 many comments, including on Altemative 2b,fromnumerous organizations and individuals. {Id.,
10 CDWR^D4^:,2-3.) ,^
11 On iCiarch 27, 2020, DWR certified Its Final EIR pursuant to the California Environmental
12 Quality Act (CEQA) and approved a Refined Alternative 2b. {Id., CDWR_A_l-3.) Refined"-
13 Alternative 2b is based on Altemative 2b as discussed in the Draft EIR, but was refined lri the
14 ^PinaliEIR-after consultation with CDFW and based on the comments DWR r^iyeitfrom: publlc
15 stakeholders and otherragenefef^^i^Sg^he CEQA fe period. {Id., CDWR_D1—2-3'.)'^Refined
16 Altemative 2b was not "entirely new," as the SWC Parties assert. (Memorandum of Points and
17 Authorities ISO SWC Parties' Motion to Augment the Administrative Records [SWC Mot.], at p.
18 16.) To the contrary. Refined Altemative 2b further minimizes potential environmental impacts
19 compared to those identified in the Draft EIR, and is the "environmentally superior alternative" in
20 the approved and certified Final EIR. (DWR Appx., CDWR_Dl_2-3.)
21 i^DWR's operation of the SWP has the potential to "take" a number of species offishlisted
22 as threatened or endangered under CESA.XId., JNT29.) As a result, CDFW made responsible
23 agencyfindingsunder CEQA arid issued an Incidental Take Permit (ITP) in compliance with
24 CESA, on March 31, 2020. {Id., CDFW_Cl-3, 73-74; CDFW_H1_20I057, 201059-61,
25 201199.) A month later*the SWG.Partles and others sued DWR and CDFW alleging purported
26 CEQA and CESA vjglatipns. ,
f .
27
: '
28 ^ The zeros in the citations to the record are omitted for brevity. For example,
CDWR A 0000002 is referred to as CDWR A 2.
- - - TO
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
II. A L L NON-PRIVILEGED DOCUMENTS ARE INCLUDED IN D W R ' S CERTIFIED
ADMINISTRATIVE RECORD
2 r.-
3 A. DWR's Record Preparation and Privilege Assertions
After some parties initially elected to prepare the administrative record, all parties,
4 t-
5 including SWC Parties, stipulated that DWR should prepare the administrative record. (Register
6 of Actions (ROA) No. 178.) Lawyers from DWR's General Counsel's office and DWR's staff
7 carefijily reviewed and complied each record that comprised DWR's administrative record.
8 (Declaration of Maya Ferry Stafford [Stafford Decl.], 1 6; Grimaldo Decl., 15.) That process
9 involved identifying the location of each record, collecting the files, reviewing thefilesfor
10 Inclusion In DWR's administrative record, and deciding whether any privileges applied. (Stafford
11 Decl., 16.)
12 During the meet and confer process with the SWC Parties, DWR provided an explanatory
13 list ofthe types of documents withheld. Including the basis for withholding each document type.
14 (Declarafion of Charity Schiller ISO SWC Parties' Motion to Augment the Admlnlstrafive
^isN Records [SWC Decl.], Exhs. B, E.) The dbcumen^DWR withheld after applying a balancing test
16 " contain dellberafive or confidential material, the disclosure of which is against the publlc interest
17 and offers little probative value since they are not what formed the basis for the decisions at Issue
here. {See Stafford Decl., H 15, 20.) Topics covered by these records include, for example, pre-
18
decisional deliberations on Delta outflow, habitat restoration, species conditions and monitoring,
19
new science, the relationship to Federal Endangered Species Act coverage, public outreach, and
20
water supply. {Id., 1 15.) The administrative record thoroughly covers these topics. (E.g., DWR
21
Appx., CDWR_Dl_l-6; JNT95-99; JNT1085, 1090, 1594-98; JNT19971-78.)
22
However, the types of documents reflecting deliberations or confidential discussions of
23
these topics vary and are discussed In more detail In the Stafford Declaration, submitted herewith.
24
They Include the following:
25; i . .... - - - •- :• :,T,!_ . .. -
DWR's Inter-Agency Privileged Documents Include the Following Categories:
26
•i" (1) High level briefing and pre-decislonal discussions of publlc.i^ommunlcatlons of accurate
27
28
% ••
information; (2) discussions regarding outreach to lawmakers and other stakeholders;,(3)
11
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative
(JCCP No.Record
5117)
Executive communications related to decisions regarding rollout for major milestones in process
2 for endangered species coverage!for SWP, distribution of media coverage, andfieldingof media
3 inquiries; (4) Executive coordln^jon regarding decisions around state water policy initiatives and
4 issues, including how the ITP Interfaces with those Initiatives and Issues, timelines, and litigation;.
5 (5) High-level briefings, briefing materials, and coordinafion related to ITP and EIR development,
6 timelines, and approach including to the Govemor's Office; (6) Correspondence to/from the
7 Govemor's Office related to ITP, EIR, state and water policy strategy and decision-making; and
8 (7) Executive review and deliberation related to biological opinions that could Implicate the ITP
9 process and litigation In that matter, Including review and assessment of stakeholder proposals
10 and any related confidential negotiations, as those proposals related to or potentially implicated
11 the ITP process. (Stafford Decl., 118.)
12 DWR's Intra-Agency Privileged Documents Include the Following Categories:
13 (1) Intemal coordiriatlon on briefing documents; (2) Executive-level document review and/or
14 approval%f(3)^rmlttlng strategy discussions; (4) Intemal coordination ori publlc /^''^C
15 comrilunications; (5) Intemal dis(5ussiori^di|0to'state wate'r po initiatives and issues; and '
16 (6) Informal notes of executive-level decisionmakers relative to ITP decisions. {Id., 121.)
17 : DWR's attomeys assisted their decision-makers in weighing the public's interest in
18 nondisclosure against the publlcss interest in disclosure of each record, taking Into account the
L
19
specific factual circumstances related to each one. {Id., 112.) After conducting this balancing test,
20
and after numerour internal briefings, consideration of feedback from staff and management, axi&~
21
a document-by-document analysis, DWR withheld only 191 documents on the basis of both the
22
deliberative prcreess and official information privileges.'' {Id., H 14, 15, 19, 22.) Thereafter, DWR
23
certified its administrative record, containing approximately 6,636 documents and spanning ':
24
approximately 470,987 pages on March 4, 2022. {Id., 123; ROA No. 207.)
25
_• - • •. -
26
27
^ During the meet and'^nfer process, DWR communicated that It had withheld
28 approximately 220 documents. The number has decreased after further review and to remove
duplicates and a file that was withheld on the bas^s of attomey-client privilege.
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
11 B. DWR's Certified Administrative Record Contains Thousands of Non-
privileged Inter- and Intra-Agency Communications
2f . I
3i DWR withheld only a very small fraction of its record on grounds tha^the documents were
4 e protected under the deliberative process and official information privileges. {Stafford Decl., 114.)
5 DWR also included thousands of non-prlvlleged materials In its record to explain the Project's
6 evolution from incepfion to approval, including the SWP's relationship to the federal Central
7 Valley Project and how DWR arrived at Refined Altemative 2b. {Id., 1 23.) These disclosures are
8 found, among other records, in DWR's CEQA project approval and findings, DWR's master
9 response to comments, and the Final EIR. (DWR Appx., CDWR_D1_1; JNT51-62; JNT27-36.)
10 DWR's administrative record also contains thousands of communications, including
11 between DWR, CDFW, several other govemment agencies, incllidlng CNRA, and stakeholders,
12 .such as U.S. Fish and Wildlife, U.S. Bureau of Reclamation, the Deita Stewardship Council,
13 water districts, cities, and even many of the pefitloners and thelr counsel. (Stafford Decl., 123.)
14 -. These Interactions transpired over multiple years, alj^efqre the-EIR:and ITP vyere approved, and
15-. £;ialbi^a^^iieged'-cornniunications were included in the certified administrative tt;ceR^^^^j)3-:;^^
16 Despite the SWC Parties' assertions to the contrary, DWR exercised great restraint before
17 , withholding anythingfromIts record on privileged grounds. {Ibid.)
\% \ LEGAL STANDARD t
L L
19 f CEQA specifies the Information to include in an agency's administrative record. (Pub.
20 - Resources Code, § 21167.6, subd. (e).) An agency is not required to "disregard all privileges
21 when assembling CEQA administrative records." {Citizens for Ceres v. Superior CoMrr(2013)
22 217 Cal.App.4th 889, 912.) Documents protected by the deliberative process privilege or official
23 information privilege are appropriately excluded from the administrative record. (See ibid.)
24
•. - • • •
Correspondence to and from the Govemor's Office is also privileged. (Gov. Code, § 6254, subd.
25 ^;(0-) Publjc agencies are not required to disclose the very substance of the privileged documents,
26^ only enough Information as to why the documents were withheld. (See Citizens for Open
2£: Government v. City of Lodi (2012) 205 Cal.App.4th 296, 3D7; see also Ge^en Door Properties,
,^
28 l i e V. SM/jer/or Court (2020) 53 Cal.App.5th 733, 790-792.)
13
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
1 The deliberative process privilege protects materials reflecting the deliberative or
2 policymaking process, as well as "predecislonal" documents, which are those documents prepared
3 to assist the agency decision-maker in mailing a decision. {Wilson v. Superior Court (1996) 51
4 Cal.App.4th 1136, 1142, as modified (Jan.'21, 1997); see also Regents of University of California
5 V. Superior Court (1999) 20 Cal.4th 509, 540, concurring opinion [privilege extends to
6 "conversations, discussions, debates, deliberations and like materials reflecting advice, opinions,
7 and recommendations by which govemment policy Is processed and forriiulated"].)
8 Three policy reasons underlie the deliberative process privilege. "First, [the privilege]
9 protects creative debate and candid consideration of altematives within an agency, and, thereby,
10 Improves the quality of agencj4,ppllcy decisions. Second, It protects the publlc from the confusion
11 that would result from prematiTre exposure to discussions occurring before the policies affecting it
12 had actually been settled upon.-AriB third, it protects the Integrity of the decision-making process
13 Itself by confirming that officials should be judged by what they decided[,] not for matters they
14 considered before4?aking: up their minds." (Ca/. First Amendment Coalition v. Superior Court -Aj^
\5 (1998) 67 Cal.App;4th-159;T-70, intemal quotes^oWfE^S^^^^ /
16 privilege is rooted in the "catchall" or "public Interest" exemption of the Califomia Public
17 Records Act (PRA) (Gov. Code, § 6255, subd. (a)), courts apply it more broadly. (E.g., Times
18 Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1339, fns. 9-10; Bd. of Registered Nursing
19 V. Superior Court (2021) 59 Cal.App.5th 1011,1040-1042.) Most important, the privilege
20 applies In the CEQA contextr(See City o f Lodi, supra, 205 Cal.App.4th at pp. 305-306.)
21 The official information privilege Is based on slhillar principles as the deliberative process
22 privilege. Evidence Codersection 1040 codifies this privilege and allows an agency to withhold
23 "official Information" If disclosure "is against the public Interest because there Is a necessity for
r
24 preserving the confidentiality of the information that outweighs the necessity for disclosure in the
25 interest of jusfice." (Evid. Code, § 1040,'sulfd. (b).),"0fficlaLinformation" is "Information
— w' ,• - •
26 acquired in confidence by a public empli^ee Tn the course of his or her duty and not open, or
27 officially disclosed, to the publlc prior t^the fime the claim of privilege Is made." {Id., § 1040,
28 subd. (a).)
14
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
Eor either of these privileges to apply, the public interest in withholding the records must
2 outweigh the public Interest In disclosure. {County of Santa Clara v. Superior Court (2009) 170
fc f
3 Cal.Ap^-.4th 1301, 1321 [dellberafive process privilege]; see also CBS, Inc. v. Block{^S6) 42
I ' ••-
.4 Cal.3d'646, 656 ["weighing process mandated by Evidence Code section. 1040 requires review of
5 the same elements that must be considered under [Govemment Code] section 6255"].) The
6 - agency must explain the public's specific Interest In nondisclosure and demonstrate an
7 overbalance on the side of confidentiality. {City of Lodi, supra, Cal.App.4th at p. 307.) The publlc
8 has a strong interest in nondisclosure of deliberative materials to maximizefrankand candid
9 discussions that are necessary to Inform the decisionmaking process within the executive branch
la and to eriable agencies to make better decisions for the publlc. {Times Mirmr, supra, 53 Cal.3d at
- IT pp. 1340-1341; see also United States Fish & Wildlife Serv. v. Sierra CluBjInc. (2021) 141 S.Ct.
12 "777, 785 ["To encourage candor, which improves agency declsionmaklng,-tlTie privilege blunts the
-13 chilling effect that accompanies the prospect of disclosure"].) Likewise, If official Information is
acquired in confidencCi a balancing test must consider whethes>-«the necessity for preserving the
--F-5.' xonfideriflaHTyJ^^^^ttfortriatiori olltweighs the necessity for disclosure mithe lnterest=6fjtKtlS£^
16 {Shepherd v. Superior Court {1976) 17 Cal.3d 107, 125-126, overruled on other grounds In
L7 Peop/e/v.//o/Way (2004) 33 Cal.4th 96, 131.)
18 Raced wlth a challenge to an agency's application of the deliberative process orbfficial
L
/ 19 information privllege,~courts consider the agency's application of the balancing test arid whether
—20 the public's-interest in nondisclosure outweighs the public's interest in disclosure. {Times Mirror^
21 supra, 53 Cal.3d at p. 1344 [applying balancing test "[o]n the facts presented"].) "[T]he -
,'r22 deliberative process privilege is grounded In the unromantic reality of politics; it rests on the
23 understanding that if the public and the Govemor were entitled to precisely the same information,
24 neither would likely receive it." {Id. at p. 1345.) Deference to the agency's reasoning for
25 wlthholcfiTig disclosure Is appropriate because ofthe agency's expertise in what confiddfrtiality .rsu
26 needed to protect the quality of its decisions.^ {Island Film, S.A. v. Dept. of the 7VeaK-r(D'D.C.
27 ^ Case law Interpreting the federal Freedom of Information Act is instructivlJiFor
application of the deliberative process privilege in Califomia. (See Times Mirror, supra, 53
28
15
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
2012) 869 F.Supp.2d 123, 135 ["a court must showiparticular deference to the agency's
2 assessment on [what is deliberative], since the agency possesses unique knowledge of Its
3 decision-making process"]; Pfeiffer v. C.I.A. (D.D.(g. 1989) 721 F.Supp. 337, 340 [agency's
4 expertise In "what confidentiality is needed 'to preVferit injury to the quality of agency
5 decisions..."' warrants considerable deference].) -
6 ARGUMENT
7 I. DELIBERATFVE PROCESS AND OFFICIAL INFORMATION PRIVILEGES APPLY TO A L L
DOCUMENTS W I T H H E L D
8
The deliberative process and official Information privileges apply to all of the withheld
9
documents. They are predecislonal, as they pre-date DWR's approval ofthe LTO SWP on March
10
27, 2020, deliberative in nature, and contain confidential Information acquired by publlc officials
11
in the course of their duties, Including information exchanged between DWR and among other
12
govemment partners. (Stafford Decl., 11 15-21; Grimaldo Decl., H 14, 16, 18.) Specifically,
13
these inter-agency documents include communications and files shared between high-level
14
officials from DWR and other agencies within the Govemor's Ad.mlnlstratlori, including the
15-1
Governor's Office. (Stafford Decl., H 18.A, 18.B, 18.C.) They include high-level briefings and
16
discussions about communicating accurate information to the public and preparing for lawmaker
17
and other stakeholder outreach about water operations in Califomia. {Ibid.) They also Involve
18
media strategies about major milestones In endangered species coverage for the SWP. {Ibid.)
19
Materials reflecting executive coordination about state water policy Initiatives, review and
20
deliberation on biological opinions that might Implicate the ITP process and litigation, and
21
briefing related to the ITP and EIR development, timelines, and approach were also withheld.
22
{Id., 1118.C, 18.D, 18.G.) DWR also withheld correspondence by and to the Govemor's Office
23
related to the ITP, EIR, and state water policy strategy and decision-making. {Id., 118.E.) The
24
withheld documents also include intra-agency records shared within DWR only, among DWR
•25 [fyfr- i:.ri. - - - -
staff and executive-level DWR officials, regarding topics such as DWR's permitting strategy, the
26
i- • -
27 ITP, state water policy initiatives and issues and consisting of DWR executives' review or
• W
28 Cal.3d at p. 1338; Wilson, supra, 51 Cal.App.4th at p. 1141 ["Because the [FOIA and the PRA]
have a common purpose, federal decisions under the FOIA may be used to constme the Act."].)
16
DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record
(JCCP No. 5117)
1 approval of documents. {Id., 1 21.) All of the docunients withheld by DWR are the types of j.
2 documents appropriately withheld under the deliberative process privilege and official f:.
3 Information prlv^eges. . . ^
4 . The SWC Parties wrongly assert that, in order for the privileges to apply to the withheld
5 documents, they must be similar to "the govemor's schedules, calendars, and notebooks,"
6 documents necessary to protect the "govemor's life and limb," or "contaln[] personal Information
7 relating to applicants for a vacant board of supervisors' position," as in Times Mirror, Cal. First
8 Amendment Coalition, or Wilson. (SWC Mot., at pp. 23:26-24:5.) No such standard exists and
9 applying such a narrow standard would strangle every public agency's ability to freely and fairly
10- debat&.important, sensitive topics In confidence before final decisions are made. Indsed,
11 "[n]othing in the text or the history of section 6255 limits Its scope to specific categories of
12 Informafion or established exemptions or privileges." {Times Mirror, supra, 53 Cal. 3d~at
13- p. 1339.) The focus of the deliberative process privilege inquiry Is more appropriately-placed on
44- ipihe'effect-of dlsclosiu'e, rather than the "nature of the records sought." (iS'at;p;-13.42.) "The key -
15- questlonMn every^easie^si^^iS^iferTtheMlsclos^^^ of materials would expose-an agericy'S ^r^^--
16 decisionmaking process in such a way as to discourage candid discussion within the agency and
17 thereby undermine the agency's ability to perform Its fiinctions.'" {Ibid., citation omitted.)
18 In fact, thekonsequences of disclosure here—chilling Inter- and Intra-agency discussions!?
' t - - '-
19 regarding the SWP and state water policy—could be disastrous for Califomians.r(Grlmaldo Decl.,
20 11 i 3 , 15, 19.) These consequences of disclosure are what the cases the SWC Partres cite analyze
21 iand protect against. {Times Mirror, supra, 53 Cal.3d at p. 1345 ["To disclose every private
22 "meeting or association of the Govemor and expect the decisionmaking procesJrtoi fiinction
23 effectively, is to deny human nature and contrary to common sense and experience."]; Cal. First
24 Amendment Coalition, supra, 67 Cal.App.4th at p. 172 [ability to deliberate is enhanced "by
25 access to Info
Preview
Sup@rior Couft Of Califor^is^ Sa£<'am«»to ROB BONTA i Attomey General of Califomia 2 ERIC M . KATZ f Supervising Deputy Attomey General f- 3 LINDSAY WALTER, SBN 311142 JCCP S117 CAITLAN MCLOON, SBN 302798 4 COREY MOFFAT, SBN 305620 GWYNNE HUNTER, SBN 293241 5 STEPHEN SUNSERI,-SBN 207030 WILLIAM JENKINS, SBN 143616 6 Deputy Attomeys General 455 Golden Gate Avenue 7 SanFrancisco, CA 94102 Telephone: (415)510-3466 8 Fax: (415) 703-5480 EXEMPT FROM FILING FEES E-mall: Wllllam.Jenklns@doj.ca.gov GOV. CODE § 6103 9 Attorneys for Respondent and Defendant California Department of Water Resources 10- SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 13 cSf^:,- ^iss. . Wr.iti,v . vV / 15- : eO0RDINATK)N.P4t®^iE®ING' • Case No. C-JC-20-005117JGCPNO.-5n7 - SPECIAL T I T L E [RULE 3.550] 16 CALIFORNIA DEPARTMENT OF CDWR WATER OPERATIONS CASES WATER RESOURCES' OPPOSITION 17 TO SWC PARTIES' MOTION TO The Included Actions: AUGMENT DWR'S ADMINISTRATIVE 18 RECORD r Central Delta Water Agency, et al. v. 19 California Dept: of Fish and Wildlife, et al., Date: September 9, 2022 Superior Court, County of Sacraniento, Time: 10:00 a.m. 20 Case No. 34-2020-800003368 Dept: 27 - - Judge: The Hon. Steven M. Gevercer 21 /The Metropolitan Water District of Trial Date: N/A Southern California, et al., v. California Action Filed: November 4, 2020 22 "Dept. of Fish and Wildlife, et al., Superior Court, County of Fresno, Case No. 23 20CECG01347 24 Tehama-Colusa Canal Authority, et al., v. California Dept. of Water Resources, 25 Superior Courtj£j@ounty:ofiFresno, Case No. 20CECG01303 - 26 ? State Water Contractors, et al., v. California 27 Dept. of Fish ^fid Wildlife, et al., Superior 1V.r.; Court, County of Fresno, Case No. 28 20CECG01302 I DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 1 North Coast Rivers Alliance, et al., v. Dept. 2 of Water Resources, et al., Superior Court, County of San Francisco, Case No. CPF-20- 3. 517078 4 San Bernardino Valley Municipal Water District v. California Dept. of Water 5 Resources, Superior Court, County of Fresno, Case No. 20CECG01556 6 San Francisco Baykeeper, et al., v. 7 California Dept. of Water Resources, et al., Superior Court, County of Alameda, Case 8 No. RG20063682 9 Sierra Club, et al. v. California Dept. of Water Resources, et al., Superior Court, 10 County of San Francisco, Case No, CPF-20- 517120 11 12 13 - 14 16 17 18 19 20 -'21 22 23 24 ;-25 26 - 27 28 T A B L E OF CONTENTS 2 I Page 3 Introduction and Summaryfof Argument 7 Relevant Factual Backgroiuid 8 4 I. . DWR's Operation ofthe State Water Project 8 5 A. The State Water Project 8 6 B. DWR's Place In Califomia Govemment -8 C. DWR's Responsibility to Protect and Manage Califomia's Water 7 Supply ; 9 8 D. Long-Term Operation of the State Water Project 10 II. All Non-prlvlleged Documents Are Included In DWR's Certified 9 Administrative Record 11 10 - ' A. . DWR's Record Preparation and Privilege Assertions ......»11 B. DWR's Certified Administrative Record Contains Thousands of 11 Non-prlvlleged Inter-and Intra-Agency Communications ...13 12 Legal Standard .-13 13 Argument 16 I. Deliberative Process and Official Information Privileges Apply to All 14 . "-^Documents Withheld •.^5:...,.r;...16 15 / I I . __.pWR Prppedy V|telgi3^,4:b^^^^ . Confidential, Pfe-peclsibnal lnfo Disclosure 18 16 III. All Documents Relevant to the Court's Inquiry At the Merits Stage Are In 17 the Record.. : 19 18 IV. In-Camera Review Is Unnecessary , 21 Conclusion .' 21 19 20 21 22 23 24 25 26 27 28 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) T A B L E OF AUTHORITIES r2 \. Page t3 j: r- CASES ;'• " 4 Bd. of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011 14 5 Cal. First Amendment Coalition v. Superior Court 6 (1998) 67 Cal.App.4th 159 passim 7 CBS, Inc. V. Block 8 (1986) 42 Cal.3d 646 15 9 Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889 ; 13 10 Citizens f o r Open Government v. City of Lodi , 11 (2012) 205 Cal.App.4th 296 13, 14, 15 12 County of Orange v. Superior Court 13 (2003) 113 CaI.App.4th 1 20 . .14. County of Santa Clara v. Superior Court - ^ij ^^^^^^•T70^Gal:App.4th 1301 vv:::::;.:.:^:.:::^..:.:..::^.:^^^^^^ 16 Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733 , 13 17 i 18 IslaridFilm, S.A. v. Dept. ofthe Treas. I. L (D.D.C. 2012) 869 F.Supp.2d 123 .-. 15 : 19 Laurel Heights Improvement Assn. v. Regents of University of California •20 (1993) 6 Cal.4th 1112 (Feb. 24, 1994) ......r. ; 19 21 Pfeiffer v. C.I.A. (D.D.C;T989) 721 F.Supp. 337 :„...;:., , 16 -22 23 Regents of University of Califorma v. Superior Court (1999) 20 Cal.4th 509 14 24 San Francisco Tomorrow v. City and County of San Francisco :• ;::25 (2014) 229 Cal.App.4th 498 ..-..!;.. 21 26 San Joaquin County Local Agency Formation Com. v.^Superior Court'. (2008) 162 Cal.App.4th 159 :. 20 ^ 27 28 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) T A B L E OF AUTHORITIES (continued) 2 1 Page r 3 Shepherd v. Superior Court f ^ (1976) 17 Cal.3d 107 l 15 Times Mirror Co. v. Superior Court 5 (1991) 53 Cal.3d 1325 passim United States Fish & Wildlife Serv. v. Sierra Club, Inc. 7 (2021) 141 S.Ct. 777 15 8 Wilson V. Superior Court (1996) 51 Cal.App.4th 1136 14, 16, 17, 18 9 STATUTES 10 Califomia Endangered Species Act 9, 10, 20 11 Califomia Environmental Quality Act passim 12 13 Evidence Code § 1040 14, 15 14 § 1040, sva)d,(a^..;:;;^;..v.:.... ^:--\ § 1040, subd. (b) :.,.:....^.^^^;.^...^: ..„ :. 14 Fish and Game Code § 700 ; \ 8 17 Govemment Code 18 § 6254, subd. (/) L 13 § 6255 : : : 15, 17 19 § 6255, subd. (a).^.... ; 14 20 § 12800 8 § 12850.2 7 : :. : 8 21 § 12850.4 8 § 12853 1 ;. 8 22 § 12855 8 23 Publlc Resources Code §21167.6, subd. (e) : 13 24 Water Code . ^ 25 § 120 ;:..1;„...„: : : 8 26 §11451 , 9 § 12931 ..7. 9 27 ' ^; 28 ^ DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 1 T A B L E OF AUTHORITIES (continued) 2 Page 3 Ot^HER A U T H O R I T I E S 4 Callfomia Code of Regulations, Title 14 § 15384, subd. (a) : 20 5 6 The Honorable Ronald B. Robie (1981) 64 Ops.Cal.Atty^Gen. 47 9 7 8 ,^10 " 11 T2 13 - ; 14 • ^5 16 17 18 19 20 21 22 23 24 25 26 27 28 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) Respondent and Defendant the Califomia Department of Water Resources (DWR) submits 2 this Opposition to the Motion to Augment the Administrative Records filed by Petitioners and 3 Plaintiffs State Water Contractors, et al. (SWQ-Parties).' 4 INTRODUCTION AND SUMMARY OF ARGUMENT 5 The SWC Parties' motion to augment DWR's record Is based on a narrow and unsupported - 6 Interpretation ofthe deliberative process and official Information privileges and should be denied. 7 First, the withheld documents are the type of materials appropriately withheld under those 8 privileges because they contain pre-declslonal and confidential discussions and their disclosure 9 would chill decision making and policy development within the executive branch. Second, DWR 10 withheld documents only after determining that the publlc Interest In nondisclosure clearly 11 outweighed the public interest in disclosure. Transparency in the decision-making process Is of 12 paramount Importance to DWR, and the SWC Parties' contrary assertions are unfounded. Third, 13 all non-prlvlleged documents relevant to the Court's ultimate inquiry on the merits—^those 14 providing substantial e;s;ldence supporting the final agency action—are Included In DWR's -15^ certified administrative record. Documents regarding tIte?F@lutioh of DWR's Long-Term ' 16 Operation of the State Water Project from inception to final approval, the bases for the approved- 17 project and its incidental take permit (ITP), and thousands of non-privileged inter- and Intra- 18 agency documents and communications relevskit to and supportive of DWR's final actions are L 19 Included in the certified record.^Finally, DWR'disagrees with the SWC Parties' assertion that In 20 camera review Is necessary. There are detailed declarations from both a senior attomey in DWR's 21 Office of General Counsel and DWR's Assistant Environmental Director for the State Water 22 Project that extensively describe the withheld documents' contents, the balancing test applied to 23 each docunient, and the consequences of their disclosure for the publlc at large. In camera review 24 has not been required in similar cases, and the SWC Parties fail to show that a different approach 25 ' Despite best efforts, DWR and the Calilbmia Department of Fish and Wildlife (CDFW) 26 (collectively, the Departments) were unable to jointly file a single opposition to the SWC Parties' motion. The Departments separately oppose the' motion because each Department separately 27 prepared their own administrative records arid asserted privileges separately from one another, and the factual bases supporting each Departments' opposition are distinct. Even so, the 28 Departments worked to streamline their responses to avoid any unnecessary repetition or redundancy for the benefit of the Court and parties. DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 1 Is warranted here. For these reasons, the SWC Parties' motion to augment DWR's administrative 2 record should be denied. f 3 RELEVANT FACTUAL BACKGROUND 4 1. DWR'S OPERATION OF THE STATE W A T E R PROJECT - 5 A. The State Water Project 6 This case involves DWR's Long-Term Operation ofthe California State Water Project 7 (SWP) In the Sacramento-San Joaquin Delta (the LTO SWP or Project). The SWP Is a multi- 8 purpose water storage and delivery system that delivers clean water to 27 million Califomians, 9 750,000 acres of farmland, and businesses throughout the State. (Declaration of Lenny Grimaldo . 10 (Grimaldo Decl.], ^ 9.) DWR operates the SWP subject to multiple layers of regulation, Including 11 By CDFW and other agencies. {Id., H 10.) ' 12 --B. DWR's Place in California Government - - 13 The Govemment Code organizes the executive branch into various agencies and .-departments.. Both DWR and CDFW are two, among many, departrnents-ivithin the Califomia -15 ^Wattiral ResdurGe§:-"A^^^GNRA). (Gi-imaldo Decl., 17; Wat.'Code,-§-120rFish-& G. Q o d e l ^ i 16 700; see, e.g.. Gov. Code, §§ 12800, 12855.) All agency secretaries, including the Secretary of 17 CNRA, report directly to the Govemor. (Gov. Code, §§ 12850.2, 12853, 12855.) The secretaries 18 of each agency "serve as the principal communication link forthe effective transmission of policy 19. problems arid decisions between the Govemor and each such department, office, or other unit." 20. -{Id., § 12850.2.) Agencies also coordinate among their departments to assistihe Govemor-in 21 development and Implementation of statewide policy. {Id., §§ 12850.2, 12850.4.) Given this 22 statutory stmcture, DWR's Director and staff, as well as those of CDFW and other departments, 23 regularly deliberate and communicate with their counterparts In other departments and agencies 24 within the execufive branch on matters affecting statewide policy. As discussed further below, 25 communicali<|ns of a.dejlberatlve nature must occasionally be withheld from publlc disclb^ulre 26 when theysTal! within certain recognized privileges. ^ " 27 28 8 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) C. DWR's Responsibility to Protect and Manage California's Water Supply 2 DWR's mission is to sustainably manage Califomia's water resources, in cooperation with 3 other agencies, to benefit the people of California and prptect, restore, and enhance the natural 4 and human environments. (Grimaldo Decl.,_l 7.) The Legislature created DWR to manage and 5 operate much of Califomia's water supply, Including the SWP. (/6/V/.; Wat. Code, § 11451.)^ The 6 SWP also Is subject to multiple layers of regulation by other agencies and departments, which are 7 charged with protecting species and their habitats under other statutory mandates, as CDFW is 8 under the Califomia Endangered Species Act (CESA). (Grimaldo Decl., 1 10.) DWR represents 9 the SWP's Interests when coordinating with these other agencies and departments. Including the 10 Govemor's Office, on various options and pQjgntlal issues about state water policy. {Id., 1 11.) As 11 a result, DWR must be able to engage In confidence with high-level officials throughout the 12 Govemor's Administration to discuss sensitive is'sues so as to arrive at informed, thoughtful, 13 timely, and organized decision-making on water policy. {Id., H 12-13.) For the same reason, -14 DWR Is required to engage intei^^ly^thai.lt considers accurate,,forthright, and thorough •'•i^i^^^l-5' ^.assessments in order tp Implement sound^water.policy. (M,:..lTi8.i^ . .. t: 16 To be effective at managing and operating the SWP, DWR must have frank discussions 17 within DWR, with CNRA, and other executive branch partners. Califomia water issues are 18 complex and require coordination of multiple agencies, (^d, 11 13, 16.) Disclosure of candid L 19 discussions and predecislonal deliberations between govemment partners would discourage these -.20 fulsome discussions from occurring. Candld-predecisional communications ensure accurate and . 21 comprehensive Information Is shared and that differing viewpoints.are discussed freely without 22 public scrutiny. {Id., H 14, 18.) The implications of chilling such discussions could lead to 23 disastrous consequences for the publlc because staff would not engage In the kind of rigorous 24 debate and consideration needed for such a complex field of issues, (/t;?., H 15, 19.) The policies jr^y. 25- ^ Water Code section 11451 is part of the "Central Valley Project Act," and the word 26 "project" In Section 11451 once applied to facilities v/ithln the Central Valley Project. However, later enacted Water Code sections conferred broad powers to DWR to operate and maintain those 27 same facilities within the SWP. (See Wat. Code, § 12131.) As a result, the word "project" in Section 11451 came to mean facilities in the SWP, and not the Central Valley Project. (See 64 28 Ops.Cal.Atty.Gen. 47 (1981).) ^ DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) related to water, including the competing Interests of species protection and agricultural and 2 municipal water suppi j', are of the utmost importance to the people of Califomia. {Ibid.) 3 D, Long-Terfh Operation of the State Water Project 4 On November 22, 2019, DWR released its Draft Environmental Impact Report (EIR) for 5 the SWP LTO project and circulated It for public review and comment for 45 days. (Appendix of 6 DWR's Excerpts of Admlnlstrafive Record [DWR Appx.], CDWR_D1_3.)^ The Draft EIR 7 Included an analysis of a proposed project and several alternatives, including Altemative 2b. {Id., 8 CDWR_D1_2.) During the public review period, DWR held a public meeting and also received 9 many comments, including on Altemative 2b,fromnumerous organizations and individuals. {Id., 10 CDWR^D4^:,2-3.) ,^ 11 On iCiarch 27, 2020, DWR certified Its Final EIR pursuant to the California Environmental 12 Quality Act (CEQA) and approved a Refined Alternative 2b. {Id., CDWR_A_l-3.) Refined"- 13 Alternative 2b is based on Altemative 2b as discussed in the Draft EIR, but was refined lri the 14 ^PinaliEIR-after consultation with CDFW and based on the comments DWR r^iyeitfrom: publlc 15 stakeholders and otherragenefef^^i^Sg^he CEQA fe period. {Id., CDWR_D1—2-3'.)'^Refined 16 Altemative 2b was not "entirely new," as the SWC Parties assert. (Memorandum of Points and 17 Authorities ISO SWC Parties' Motion to Augment the Administrative Records [SWC Mot.], at p. 18 16.) To the contrary. Refined Altemative 2b further minimizes potential environmental impacts 19 compared to those identified in the Draft EIR, and is the "environmentally superior alternative" in 20 the approved and certified Final EIR. (DWR Appx., CDWR_Dl_2-3.) 21 i^DWR's operation of the SWP has the potential to "take" a number of species offishlisted 22 as threatened or endangered under CESA.XId., JNT29.) As a result, CDFW made responsible 23 agencyfindingsunder CEQA arid issued an Incidental Take Permit (ITP) in compliance with 24 CESA, on March 31, 2020. {Id., CDFW_Cl-3, 73-74; CDFW_H1_20I057, 201059-61, 25 201199.) A month later*the SWG.Partles and others sued DWR and CDFW alleging purported 26 CEQA and CESA vjglatipns. , f . 27 : ' 28 ^ The zeros in the citations to the record are omitted for brevity. For example, CDWR A 0000002 is referred to as CDWR A 2. - - - TO DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) II. A L L NON-PRIVILEGED DOCUMENTS ARE INCLUDED IN D W R ' S CERTIFIED ADMINISTRATIVE RECORD 2 r.- 3 A. DWR's Record Preparation and Privilege Assertions After some parties initially elected to prepare the administrative record, all parties, 4 t- 5 including SWC Parties, stipulated that DWR should prepare the administrative record. (Register 6 of Actions (ROA) No. 178.) Lawyers from DWR's General Counsel's office and DWR's staff 7 carefijily reviewed and complied each record that comprised DWR's administrative record. 8 (Declaration of Maya Ferry Stafford [Stafford Decl.], 1 6; Grimaldo Decl., 15.) That process 9 involved identifying the location of each record, collecting the files, reviewing thefilesfor 10 Inclusion In DWR's administrative record, and deciding whether any privileges applied. (Stafford 11 Decl., 16.) 12 During the meet and confer process with the SWC Parties, DWR provided an explanatory 13 list ofthe types of documents withheld. Including the basis for withholding each document type. 14 (Declarafion of Charity Schiller ISO SWC Parties' Motion to Augment the Admlnlstrafive ^isN Records [SWC Decl.], Exhs. B, E.) The dbcumen^DWR withheld after applying a balancing test 16 " contain dellberafive or confidential material, the disclosure of which is against the publlc interest 17 and offers little probative value since they are not what formed the basis for the decisions at Issue here. {See Stafford Decl., H 15, 20.) Topics covered by these records include, for example, pre- 18 decisional deliberations on Delta outflow, habitat restoration, species conditions and monitoring, 19 new science, the relationship to Federal Endangered Species Act coverage, public outreach, and 20 water supply. {Id., 1 15.) The administrative record thoroughly covers these topics. (E.g., DWR 21 Appx., CDWR_Dl_l-6; JNT95-99; JNT1085, 1090, 1594-98; JNT19971-78.) 22 However, the types of documents reflecting deliberations or confidential discussions of 23 these topics vary and are discussed In more detail In the Stafford Declaration, submitted herewith. 24 They Include the following: 25; i . .... - - - •- :• :,T,!_ . .. - DWR's Inter-Agency Privileged Documents Include the Following Categories: 26 •i" (1) High level briefing and pre-decislonal discussions of publlc.i^ommunlcatlons of accurate 27 28 % •• information; (2) discussions regarding outreach to lawmakers and other stakeholders;,(3) 11 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative (JCCP No.Record 5117) Executive communications related to decisions regarding rollout for major milestones in process 2 for endangered species coverage!for SWP, distribution of media coverage, andfieldingof media 3 inquiries; (4) Executive coordln^jon regarding decisions around state water policy initiatives and 4 issues, including how the ITP Interfaces with those Initiatives and Issues, timelines, and litigation;. 5 (5) High-level briefings, briefing materials, and coordinafion related to ITP and EIR development, 6 timelines, and approach including to the Govemor's Office; (6) Correspondence to/from the 7 Govemor's Office related to ITP, EIR, state and water policy strategy and decision-making; and 8 (7) Executive review and deliberation related to biological opinions that could Implicate the ITP 9 process and litigation In that matter, Including review and assessment of stakeholder proposals 10 and any related confidential negotiations, as those proposals related to or potentially implicated 11 the ITP process. (Stafford Decl., 118.) 12 DWR's Intra-Agency Privileged Documents Include the Following Categories: 13 (1) Intemal coordiriatlon on briefing documents; (2) Executive-level document review and/or 14 approval%f(3)^rmlttlng strategy discussions; (4) Intemal coordination ori publlc /^''^C 15 comrilunications; (5) Intemal dis(5ussiori^di|0to'state wate'r po initiatives and issues; and ' 16 (6) Informal notes of executive-level decisionmakers relative to ITP decisions. {Id., 121.) 17 : DWR's attomeys assisted their decision-makers in weighing the public's interest in 18 nondisclosure against the publlcss interest in disclosure of each record, taking Into account the L 19 specific factual circumstances related to each one. {Id., 112.) After conducting this balancing test, 20 and after numerour internal briefings, consideration of feedback from staff and management, axi&~ 21 a document-by-document analysis, DWR withheld only 191 documents on the basis of both the 22 deliberative prcreess and official information privileges.'' {Id., H 14, 15, 19, 22.) Thereafter, DWR 23 certified its administrative record, containing approximately 6,636 documents and spanning ': 24 approximately 470,987 pages on March 4, 2022. {Id., 123; ROA No. 207.) 25 _• - • •. - 26 27 ^ During the meet and'^nfer process, DWR communicated that It had withheld 28 approximately 220 documents. The number has decreased after further review and to remove duplicates and a file that was withheld on the bas^s of attomey-client privilege. DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 11 B. DWR's Certified Administrative Record Contains Thousands of Non- privileged Inter- and Intra-Agency Communications 2f . I 3i DWR withheld only a very small fraction of its record on grounds tha^the documents were 4 e protected under the deliberative process and official information privileges. {Stafford Decl., 114.) 5 DWR also included thousands of non-prlvlleged materials In its record to explain the Project's 6 evolution from incepfion to approval, including the SWP's relationship to the federal Central 7 Valley Project and how DWR arrived at Refined Altemative 2b. {Id., 1 23.) These disclosures are 8 found, among other records, in DWR's CEQA project approval and findings, DWR's master 9 response to comments, and the Final EIR. (DWR Appx., CDWR_D1_1; JNT51-62; JNT27-36.) 10 DWR's administrative record also contains thousands of communications, including 11 between DWR, CDFW, several other govemment agencies, incllidlng CNRA, and stakeholders, 12 .such as U.S. Fish and Wildlife, U.S. Bureau of Reclamation, the Deita Stewardship Council, 13 water districts, cities, and even many of the pefitloners and thelr counsel. (Stafford Decl., 123.) 14 -. These Interactions transpired over multiple years, alj^efqre the-EIR:and ITP vyere approved, and 15-. £;ialbi^a^^iieged'-cornniunications were included in the certified administrative tt;ceR^^^^j)3-:;^^ 16 Despite the SWC Parties' assertions to the contrary, DWR exercised great restraint before 17 , withholding anythingfromIts record on privileged grounds. {Ibid.) \% \ LEGAL STANDARD t L L 19 f CEQA specifies the Information to include in an agency's administrative record. (Pub. 20 - Resources Code, § 21167.6, subd. (e).) An agency is not required to "disregard all privileges 21 when assembling CEQA administrative records." {Citizens for Ceres v. Superior CoMrr(2013) 22 217 Cal.App.4th 889, 912.) Documents protected by the deliberative process privilege or official 23 information privilege are appropriately excluded from the administrative record. (See ibid.) 24 •. - • • • Correspondence to and from the Govemor's Office is also privileged. (Gov. Code, § 6254, subd. 25 ^;(0-) Publjc agencies are not required to disclose the very substance of the privileged documents, 26^ only enough Information as to why the documents were withheld. (See Citizens for Open 2£: Government v. City of Lodi (2012) 205 Cal.App.4th 296, 3D7; see also Ge^en Door Properties, ,^ 28 l i e V. SM/jer/or Court (2020) 53 Cal.App.5th 733, 790-792.) 13 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 1 The deliberative process privilege protects materials reflecting the deliberative or 2 policymaking process, as well as "predecislonal" documents, which are those documents prepared 3 to assist the agency decision-maker in mailing a decision. {Wilson v. Superior Court (1996) 51 4 Cal.App.4th 1136, 1142, as modified (Jan.'21, 1997); see also Regents of University of California 5 V. Superior Court (1999) 20 Cal.4th 509, 540, concurring opinion [privilege extends to 6 "conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, 7 and recommendations by which govemment policy Is processed and forriiulated"].) 8 Three policy reasons underlie the deliberative process privilege. "First, [the privilege] 9 protects creative debate and candid consideration of altematives within an agency, and, thereby, 10 Improves the quality of agencj4,ppllcy decisions. Second, It protects the publlc from the confusion 11 that would result from prematiTre exposure to discussions occurring before the policies affecting it 12 had actually been settled upon.-AriB third, it protects the Integrity of the decision-making process 13 Itself by confirming that officials should be judged by what they decided[,] not for matters they 14 considered before4?aking: up their minds." (Ca/. First Amendment Coalition v. Superior Court -Aj^ \5 (1998) 67 Cal.App;4th-159;T-70, intemal quotes^oWfE^S^^^^ / 16 privilege is rooted in the "catchall" or "public Interest" exemption of the Califomia Public 17 Records Act (PRA) (Gov. Code, § 6255, subd. (a)), courts apply it more broadly. (E.g., Times 18 Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1339, fns. 9-10; Bd. of Registered Nursing 19 V. Superior Court (2021) 59 Cal.App.5th 1011,1040-1042.) Most important, the privilege 20 applies In the CEQA contextr(See City o f Lodi, supra, 205 Cal.App.4th at pp. 305-306.) 21 The official information privilege Is based on slhillar principles as the deliberative process 22 privilege. Evidence Codersection 1040 codifies this privilege and allows an agency to withhold 23 "official Information" If disclosure "is against the public Interest because there Is a necessity for r 24 preserving the confidentiality of the information that outweighs the necessity for disclosure in the 25 interest of jusfice." (Evid. Code, § 1040,'sulfd. (b).),"0fficlaLinformation" is "Information — w' ,• - • 26 acquired in confidence by a public empli^ee Tn the course of his or her duty and not open, or 27 officially disclosed, to the publlc prior t^the fime the claim of privilege Is made." {Id., § 1040, 28 subd. (a).) 14 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) Eor either of these privileges to apply, the public interest in withholding the records must 2 outweigh the public Interest In disclosure. {County of Santa Clara v. Superior Court (2009) 170 fc f 3 Cal.Ap^-.4th 1301, 1321 [dellberafive process privilege]; see also CBS, Inc. v. Block{^S6) 42 I ' ••- .4 Cal.3d'646, 656 ["weighing process mandated by Evidence Code section. 1040 requires review of 5 the same elements that must be considered under [Govemment Code] section 6255"].) The 6 - agency must explain the public's specific Interest In nondisclosure and demonstrate an 7 overbalance on the side of confidentiality. {City of Lodi, supra, Cal.App.4th at p. 307.) The publlc 8 has a strong interest in nondisclosure of deliberative materials to maximizefrankand candid 9 discussions that are necessary to Inform the decisionmaking process within the executive branch la and to eriable agencies to make better decisions for the publlc. {Times Mirmr, supra, 53 Cal.3d at - IT pp. 1340-1341; see also United States Fish & Wildlife Serv. v. Sierra CluBjInc. (2021) 141 S.Ct. 12 "777, 785 ["To encourage candor, which improves agency declsionmaklng,-tlTie privilege blunts the -13 chilling effect that accompanies the prospect of disclosure"].) Likewise, If official Information is acquired in confidencCi a balancing test must consider whethes>-«the necessity for preserving the --F-5.' xonfideriflaHTyJ^^^^ttfortriatiori olltweighs the necessity for disclosure mithe lnterest=6fjtKtlS£^ 16 {Shepherd v. Superior Court {1976) 17 Cal.3d 107, 125-126, overruled on other grounds In L7 Peop/e/v.//o/Way (2004) 33 Cal.4th 96, 131.) 18 Raced wlth a challenge to an agency's application of the deliberative process orbfficial L / 19 information privllege,~courts consider the agency's application of the balancing test arid whether —20 the public's-interest in nondisclosure outweighs the public's interest in disclosure. {Times Mirror^ 21 supra, 53 Cal.3d at p. 1344 [applying balancing test "[o]n the facts presented"].) "[T]he - ,'r22 deliberative process privilege is grounded In the unromantic reality of politics; it rests on the 23 understanding that if the public and the Govemor were entitled to precisely the same information, 24 neither would likely receive it." {Id. at p. 1345.) Deference to the agency's reasoning for 25 wlthholcfiTig disclosure Is appropriate because ofthe agency's expertise in what confiddfrtiality .rsu 26 needed to protect the quality of its decisions.^ {Island Film, S.A. v. Dept. of the 7VeaK-r(D'D.C. 27 ^ Case law Interpreting the federal Freedom of Information Act is instructivlJiFor application of the deliberative process privilege in Califomia. (See Times Mirror, supra, 53 28 15 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 2012) 869 F.Supp.2d 123, 135 ["a court must showiparticular deference to the agency's 2 assessment on [what is deliberative], since the agency possesses unique knowledge of Its 3 decision-making process"]; Pfeiffer v. C.I.A. (D.D.(g. 1989) 721 F.Supp. 337, 340 [agency's 4 expertise In "what confidentiality is needed 'to preVferit injury to the quality of agency 5 decisions..."' warrants considerable deference].) - 6 ARGUMENT 7 I. DELIBERATFVE PROCESS AND OFFICIAL INFORMATION PRIVILEGES APPLY TO A L L DOCUMENTS W I T H H E L D 8 The deliberative process and official Information privileges apply to all of the withheld 9 documents. They are predecislonal, as they pre-date DWR's approval ofthe LTO SWP on March 10 27, 2020, deliberative in nature, and contain confidential Information acquired by publlc officials 11 in the course of their duties, Including information exchanged between DWR and among other 12 govemment partners. (Stafford Decl., 11 15-21; Grimaldo Decl., H 14, 16, 18.) Specifically, 13 these inter-agency documents include communications and files shared between high-level 14 officials from DWR and other agencies within the Govemor's Ad.mlnlstratlori, including the 15-1 Governor's Office. (Stafford Decl., H 18.A, 18.B, 18.C.) They include high-level briefings and 16 discussions about communicating accurate information to the public and preparing for lawmaker 17 and other stakeholder outreach about water operations in Califomia. {Ibid.) They also Involve 18 media strategies about major milestones In endangered species coverage for the SWP. {Ibid.) 19 Materials reflecting executive coordination about state water policy Initiatives, review and 20 deliberation on biological opinions that might Implicate the ITP process and litigation, and 21 briefing related to the ITP and EIR development, timelines, and approach were also withheld. 22 {Id., 1118.C, 18.D, 18.G.) DWR also withheld correspondence by and to the Govemor's Office 23 related to the ITP, EIR, and state water policy strategy and decision-making. {Id., 118.E.) The 24 withheld documents also include intra-agency records shared within DWR only, among DWR •25 [fyfr- i:.ri. - - - - staff and executive-level DWR officials, regarding topics such as DWR's permitting strategy, the 26 i- • - 27 ITP, state water policy initiatives and issues and consisting of DWR executives' review or • W 28 Cal.3d at p. 1338; Wilson, supra, 51 Cal.App.4th at p. 1141 ["Because the [FOIA and the PRA] have a common purpose, federal decisions under the FOIA may be used to constme the Act."].) 16 DWR's Opposition to SWC Parties' Motion to Augment DWR's Administrative Record (JCCP No. 5117) 1 approval of documents. {Id., 1 21.) All of the docunients withheld by DWR are the types of j. 2 documents appropriately withheld under the deliberative process privilege and official f:. 3 Information prlv^eges. . . ^ 4 . The SWC Parties wrongly assert that, in order for the privileges to apply to the withheld 5 documents, they must be similar to "the govemor's schedules, calendars, and notebooks," 6 documents necessary to protect the "govemor's life and limb," or "contaln[] personal Information 7 relating to applicants for a vacant board of supervisors' position," as in Times Mirror, Cal. First 8 Amendment Coalition, or Wilson. (SWC Mot., at pp. 23:26-24:5.) No such standard exists and 9 applying such a narrow standard would strangle every public agency's ability to freely and fairly 10- debat&.important, sensitive topics In confidence before final decisions are made. Indsed, 11 "[n]othing in the text or the history of section 6255 limits Its scope to specific categories of 12 Informafion or established exemptions or privileges." {Times Mirror, supra, 53 Cal. 3d~at 13- p. 1339.) The focus of the deliberative process privilege inquiry Is more appropriately-placed on 44- ipihe'effect-of dlsclosiu'e, rather than the "nature of the records sought." (iS'at;p;-13.42.) "The key - 15- questlonMn every^easie^si^^iS^iferTtheMlsclos^^^ of materials would expose-an agericy'S ^r^^-- 16 decisionmaking process in such a way as to discourage candid discussion within the agency and 17 thereby undermine the agency's ability to perform Its fiinctions.'" {Ibid., citation omitted.) 18 In fact, thekonsequences of disclosure here—chilling Inter- and Intra-agency discussions!? ' t - - '- 19 regarding the SWP and state water policy—could be disastrous for Califomians.r(Grlmaldo Decl., 20 11 i 3 , 15, 19.) These consequences of disclosure are what the cases the SWC Partres cite analyze 21 iand protect against. {Times Mirror, supra, 53 Cal.3d at p. 1345 ["To disclose every private 22 "meeting or association of the Govemor and expect the decisionmaking procesJrtoi fiinction 23 effectively, is to deny human nature and contrary to common sense and experience."]; Cal. First 24 Amendment Coalition, supra, 67 Cal.App.4th at p. 172 [ability to deliberate is enhanced "by 25 access to Info