Preview
JOSEPH P. BY RNE, GENERAL COUNSEL Bar No. 190365 Exempt from filing fees
Joseph.Byrne@ bbklaw.com Govt. Code§ 610.
CHARITY SCHILLER, Bar No. 234291
Charity.Schiller@ bbklaw.com E-FILED
AMY HOYT, Bar No. 149789 5/4/2020 8:00 AM
Amy.Hoyt@ bbklaw.com Superior Court of California
Best Best & Krieger LLP County of Fresno
3390 University Avenue, 5th Floor By: A. Ramos, Deputy
P.O. Box 1028
Riverside, California 92502
Telephone: (951) 686-1450
Facsimile: (951) 686-3083
Attorneys for Petitioner/Plaintiff
STATE WATER CONTRACTORS
[Additional Counsel on Next Page]
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11 SUPERIOR COURT OF CALIFORNIA
12 COUNTY OF FRESNO
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STATE WATER CONTRACTORS and Case No. 20CECG01302
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KERN COUNTY WATER AGENCY Filed under California Environmental Quality
15 Act (CEQA)
Petitioners/Plaintiffs,
16 STATE WATER CONTRACTORS AND
Vv KERN COUNTY WATER AGENCY’S
17 VERIFIED PETITION FOR WRIT OF
STATE OF CALIFORNIA MANDATE FOR VIOLATION OF THE
18 DEPARTMENT OF FISH AND CALIFORNIA ENVIRONMENTAL
WILDLIFE, STATE OF CALIFORNIA QUALITY ACT AND THE CALIFORNIA
19 DEPARTMENT OF WATER ENDANGERED SPECIES ACT
RESOURCES, and DOES 1 through 100,
20 (Code of Civ. Proc. §§ 1085 & 1094.5; Pub.
Respondents/Defendants/ Resources C ode § 21000 et seq.; Fish & Game
21 Real Parties in Interest. Code § 2050 et seq.)
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23 ROES T through 100, [Deemed Verified as to Kern County Water
Agency pursuant to Code of Civ. Proc.,
24 Real Parties in Interest.
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VERIFIED PETITION FOR WRIT OF MANDATE
ADDITIONAL COUNSEL
WILLIAM M. SLOAN, Bar No. 203583
WMSloan@V enable.com
CHELSEA E. O'SULLIVAN, Bar No. 308369
ceosullivan@
V enable.com
Venable LLP
101 California Street, Suite 3800
San Francisco, CA 94111
Telephone: (415) 343-4490
Attorneys for Petitioner/Plaintiff
STATE WATER CONTRACTORS
AMELIA T. MINABERRIGARAI, GENERAL COUNSEL, Bar No. 192359
ameliam@ kcwa.com
KERN COUNTY WATER AGENCY
10 3200 Rio Mirada Drive
Bakersfield, CA 93308
11 Telephone: (661) 634-1409
12 PAUL S WEILAND, Bar No. 237058
pweiland@ nossaman.com
13 Nossaman LLP
18101 Von Karman Ave Suite 1800
14 Irvine, CA 92612-0177
Telephone: (949) 833-7800
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Attomeys for Plaintiff/Petitioner
16 KERN COUNTY WATER AGENCY
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VERIFIED PETITION FOR WRIT OF MANDATE
Petitioners and Plaintiffs State Water Contractors (“SWC”) and Kern County Water
Agency (“KCWA”) allege as follows:
INTRODUCTION
1 The State Water Project (“SWP”) is an integral part of California’s water storage
and delivery systems. It provides reliable water supply to nearly two-thirds of California’s
population and to 750,000 acres of agricultural land. This lawsuit involves how the SWP will be
operated over the next 10 years.
2 To facilitate those continued operations, Respondent California Department of
Water Resources (“DWR”) must comply with the California Endangered Species Act, Fish &
ai 10 Game Code § 2070 et seq. (“CESA”). To comply with CESA, DWR must obtain a permit from
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ue 11 Respondent California Department of Fish and Wildlife (“CD FW”) to operate the SWP. Acting
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BZ 14 Quality Act, Public Resources Code§ 21000 et seq. (“CEQA”).!
15 3 In its November 2019 DEIR, DWR concluded that the SWP LTO Project would
16 have no significant environmental impacts. The DEIR was supported by substantial evidence and
17 robust analysis.
18 4. In December 2019, however, the State abruptly backed away from its proposed
19 SWP LTO Project and pivoted to a new goal of no increases in SWP exports from the San
20 Francisco Bay/Sacramento-San Joaquin River Delta (“Delta”). DWR then submitted an
21 application for a take permit under CESA to CDFW, which proposed a project that was different
22 than the SWP LTO Project analyzed in the DEIR. In pursuing its new “no increases in SWP
23 exports” goal, the State disregarded the best available science and the substantial evidence
24 showing that increased exports could be achieved through more flexible operations informed by
25 real-time monitoring, without causing additional adverse impacts to the Delta and while fully
26 complying with CESA.
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' The implementing regulations for CEQA are found in title 14 of the California Code of Regulations § 15000 et seq.
28 and are hereinafter referred to as the “CEQA Guidelines.”
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VERIFIED PETITION FOR WRIT OF MANDATE
5 To pursue this new goal, DWR approved a new project, the Refined Alternative 2b
Project, and certified a Final Environmental Impact Report (“FEIR”)— even though neither the
DEIR nor the FEIR analyzed the Refined Alternative 2b Project's impacts on the environment.
Acting as a responsible agency under CEQA, CDFW relied on the FEIR to issue Incidental Take
Permit No. 2081-2019-066 (“ITP”) under CESA. DWR’s approval of the Refined A Iternative 2b
Project and certification of the FEIR violated CEQA. CDFW’s issuance of the ITP based on the
FEIR violated CEQA and CESA.
6 As alleged in detail below, the defects in both the procedure used to prepare the
FEIR, and in the analysis contained within the FEIR, are pervasive and fundamental. These
ai 10 defects made informed decision-making and informed public participation impossible. The
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ue 11 actions violate CEQA’s procedural requirements and are reviewed de novo in this court. (See,
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og 12 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512, 516.) The FEIR’s conclusions are
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BZ 14 CEQA’s procedural or substantive mandates. Because DWR relied on the defective FEIR when it
15 approved the Refined A Iternative 2b Project, that approval must be rescinded. Moreover, because
16 CDFW relied on that same defective FEIR when it issued the ITP, the approval of the ITP
17 similarly fails under CEQA.
18 7 As also alleged in detail below, CDFW violated CESA in issuing the ITP.
19 Specifically, CDFW did not adhere to CESA’s requirements in imposing mitigation measures on
20 the SWP. Additionally, CDFW overreached to obtain operational control over the SWP—a
21 domain reserved by law to DWR. Finally, CD FW failed to explain the restrictions it imposed on
22 SWP’s operations, effectively regulating without notice or discussion. Such “regulation by
23 surprise,” which impacts water supply reliability for the people of California, is intolerable.
24 CESA dictates standards that must be met and boundaries that must be respected for CDFW to
25 lawfully impose restrictions on the SWP. Because CDFW did not comply with these standards,
26 the ITP approval must be rescinded for further consideration in compliance with CESA. As will
27 be demonstrated, CDFW committed pervasive and fundamental errors in issuing the ITP and in
28 implementing CESA’s substantive requirements. These defects are subject to de-novo review in
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VERIFIED PETITION FOR WRIT OF MANDATE
this court. (Environmental Protection Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal. 4th 459, 478.) CDFW’s decision to issue the ITP is also not supported
by its findings and the findings themselves are not supported by substantial evidence. Because
the ITP violates CESA, it must be rescinded.
PARTIES
8 Petitioner and Plaintiff SWC is, and at all times mentioned herein was, a non-profit
mutual benefit corporation organized and existing under the laws of the State of California to
represent the common interests of 27 public water supply agencies that contract with the State of
California, through DWR, for participation rights from the SWP.? The SWC’s member agencies
ai 10 fund the construction, operation, and maintenance of the SWP and provide water from the SWP
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ue 11 to more than 25 million Californians and 750,000 acres of agricultural land, serving an area from
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BZ 14 California, including each of the 27 members of the SWC, is party to a contract with DWR that
15 entitles it to participate in the SWP, and all but one SWC member agency receive SWP supplies
16 diverted from the Delta. The SWC’s member agencies have the right to use the SWP conveyance
17 system, and to receive a proportional share pursuant to an annual allocation that DWR makes
18 based on availability, which depends on precipitation, snowpack, available storage, water quality
19 and other regulations, as well as other factors. These contracts are central to the SWP’s
20 construction and operation because the water contractors fund all SWP capital and operating costs
21 associated with water supply.
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? These public agencies are located in the San Francisco Bay Area, along California’s Central Coast, in the Central
Valley, and in Southem Califomia. SWC’s member agencies are The Metropolitan Water District of Southem
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California, Kem County Water Agency, Tulare Lake Basin Water Storage District, Santa Clara Valley Water
District, Alameda County Flood Control and Water Conservation District, Zone 7, Alameda County Water District,
25 Antelope Valley-East Kern Water Agency, Casitas Municipal Water District, Santa Clarita Valley Water Agency,
Central Coast Water Authority, City of Y uba City, Coachella Valley Water District, County of Kings, Crestline-Lake
26 Arrowhead Water Agency, Desert Water Agency, Dudley Ridge Water District, Empire-West Side Irrigation District,
Littlerock Creek Irrigation District, Mojave Water Agency, Napa County Flood Control and Water Conservation
27 District, Oak Flat Water District, Palmdale Water District, San Bernardino Valley Municipal Water District, San
Gabriel Valley Municipal Water District, San Gorgonio Pass Water Agency, San Luis Obispo County Flood Control
28 and Water Conservation District, and Solano County Water A gency.
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VERIFIED PETITION FOR WRIT OF MANDATE
9 Petitioner KCWA is presently, and at all times relevant hereto has been, a public
agency created and existing pursuant to the Kern County Water Agency Act, Water Code
Appendix chapter 99, and located in Kern County, California. KCWA entered into a long-term
water supply contract with the State of California, acting through the Department of Water
Resources, on November 15, 1963, for State Water Project water. KCWA serves as the local
contracting entity in Kern County for the delivery of SWP water and is a member of SWC.
10. Respondent, Defendant, and Real Party in Interest DWR is an agency of the State
of California under the California Natural Resources Agency. DWR operates the SWP, which is
the nation’s largest state-built, multi-purpose, user-financed water project. DWR is the CEQA
ai 10 lead agency charged with analyzing and disclosing the environmental impacts of the SWP long
dz
ue 11 term operations. On March 27, 2020, DWR approved the Refined Alternative 2b Project and
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BZ 14 CEQA, regarding DWR’s March 27th approval and FEIR certification.
15 11. Respondent, Defendant, and Real Party in Interest CDFW is an agency of the State
16 of California under the California Natural Resources Agency and is responsible for the
17 administration and enforcement of CESA. It also serves as a responsible agency under CEQA.
18 According to CDFW’s CEQA Notice of Determination, issued on March 27, 2020 (the very same
19 day that DWR approved the Refined Alternative 2b Project and certified the FEIR), CDFW
20 approved the ITP on March 27th, although the ITP itself is dated March 31, 2020. On April 1,
21 2020, OPR posted CDFW’s Notice of Determination for the ITP, which provides public notice of
22 CDFW’s actions under CEQA.
23 12. SWC and KCWA do not know the true names and capacities, whether individual,
24 corporate, associate, or otherwise, of Respondents and Defendants DOES 1 through 100,
25 inclusive, and therefore sue those Respondents and Defendants under fictitious names. Each of
26 the Respondents and Defendants is the agent and/or employee of Respondents DWR and CDFW,
27 and each performed acts on which this action is based within the course and scope of such party’s
28 agency and/or employment. Additionally, SWC and KCWA do not know the true names and
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VERIFIED PETITION FOR WRIT OF MANDATE
capacities, whether individual, corporate, associate, or otherwise, of Real Parties in Interest ROES
1 through 100, inclusive, and therefore sues those Real Parties in Interest under fictitious names.
SWC and KCWA will amend this Petition to show the true names and capacities of these Doe
Respondents and Roe Real Parties when those names and capacities have been ascertained.
JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to Public Resources Code
sections 21167, subdivision (a), 21168, and 21168.5, and Code of Civil Procedure sections 1060
et seq., 1085, and 1094.5.
14. Venue is proper in this Court under Code of Civil Procedure sections 401,
ai 10 subdivision (1) and 395 because DWR and CDFW have their principal places of business and
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ue 11 legal residence in the County of Sacramento, and more specifically because the California
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BZ 14 STANDING
15 15. SWC and KCWA’s water supply operations and water supply reliability, as well as
16 the water supply functions and use of SWC and KCWA’s members, will be directly and
17 adversely affected by: (1) DWR’s actions in certifying the FEIR and approving and implementing
18 the Refined Alternative 2b Project; and (2) CDFW’s reliance on that defective FEIR and issuance
19 of the legally flawed ITP. SWC and KCWA have no plain, speedy and adequate remedy in the
20 ordinary course of law in that SWC and KCWA are already suffering and will continue to suffer
21 irreparable harm because of the Refined Alternative 2b Project’s approval and ITP’s issuance.
22 16. SWC, by and through its members, and KCWA have a direct and beneficial
23 interest in DWR and CDFW’s legally adequate compliance with CEQA, CESA, and all other
24 applicable laws in approving and implementing the Refined Alternative 2b Project and the ITP.
25 SWC and KCWA submitted multiple objections on CEQA, CESA, and other grounds to DWR
26 before March 27, 2020, when DWR approved the Refined Alternative 2b Project. Further, SWC
27 submitted objections (on its and its members’ behalf) on CEQA, CESA, and other grounds to
28 CDFW’s proposed reliance on the FEIR as a responsible agency and proposed approval of the
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VERIFIED PETITION FOR WRIT OF MANDATE
ITP before March 27, 2020, when, according to CDFW’s Notice of Determination, CDFW made
its CEQA and CESA findings and approved the ITP.
17. The adverse environmental impacts of DWR and CDFW’s illegal actions will
directly and substantially affect SWC, by and through its members, including KCWA. SWC,
KCWA and SWC’s other members rely upon water exported from the Delta. Accordingly, any
action, including the Refined Alternative 2b Project and the ITP, that impacts water supply
reliability is one in which SWC, KCWA and SWC’s other members have a beneficial interest.
18. Through this action, SWC and KCWA seek to promote and enforce CEQA and
CESA’s purposes, which are defeated by the challenged approvals.
ai 10 19. CEQA’s purposes include full disclosure of environmental impacts, informed
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ue 11 public participation, and informed decision-making. Here, DWR and CDFW’s approvals were
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og 12 made without complete and accurate information, in violation of CEQA. Ascertaining the true
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BZ 14 and the public, and providing a fair opportunity for the public to participate in that evaluation
15 process are purposes that are within the zone of interests that CEQA was intended to protect.
16 20. The zone of interests that CESA was intended to protect includes ensuring that the
17 impacts of taking of endangered species and threatened species are minimized and fully mitigated
18 in a manner that is (1) proportional to the impact of the taking of the species and (2) possible to
19 be implemented utilizing methods of mitigation that maintain the applicant’s objectives to the
20 greatest extent possible. KCWA and SWC’s other members receive water from the SWP. Asa
21 result, SWC, KCWA and SWC’s other members have invested significant resources in
22 developing Delta science and achieving collaborative management of the SWP. The ITP directly
23 and adversely affects the investment of those resources and impairs overall management of the
24 SWP.
25 21. DWR has a mandatory and public duty to comply with CEQA and all other
26 applicable laws when certifying the FEIR and approving and implementing the Refined
27 Alternative 2b Project. CDFW has a mandatory and public duty to comply with CEQA, CESA
28 and all other applicable laws when relying on the FEIR as a responsible agency and issuing the
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VERIFIED PETITION FOR WRIT OF MANDATE
ITP. The issues in this action under CEQA and CESA are issues of public right, and SWC and
KCWA bring this action in the public interest to enforce DWR and CDFW’s public duties.
EXHAUSTION OF ADMINISTRATIVE REMEDIES AND NOTICES
22. SWC and KCWA have performed or are excused from performing any and all
conditions precedent to filing this action. SWC and KCWA fully exhausted all administrative
remedies to the extent feasible by objecting to DWR and CDFW in writing during and after the
public comment period provided by CEQA. SWC and KCWA also requested that DWR and
CDFW comply with CEQA and CESA. SWC, KCWA, and/or other agencies, organizations, and
individuals raised each of the legal deficiencies asserted in this Petition in writing prior to the
ai 10 approval of the Refined Alternative 2b Project, the certification of the FEIR and issuance of the
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ue 11 ITP. Furthermore, the extensive new information that was not publicly disclosed and which
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BZ 14 and KCWA are alternatively excused from any obligation to exhaust their administrative
15 remedies. (E.g., Pub. Resources Code § 21177 [any obligation to exhaust administrative
16 remedies under CEQA “does not apply to any alleged grounds ... for which there was not a
17 public hearing or other opportunity for members of the public to raise those objections orally or in
18 writing before the approval of the project... ”].)
19 23. SWC and KCWA have complied with Public Resources Code section 21167.5 by
20 providing DWR and CDFW notice of SWC’s intent to commence this action. The notices are
21 attached to this Petition as Exhibits “A” and “B.”
22 24. In accordance with Public Resources Code section 21167.7, SWC and KCWA
23 concurrently provided a copy of this Petition to the California Attomey General. The notice is
24 attached to this Petition as Exhibit “C.”
25 25. Service of this Petition on DWR and CDFW satisfy any applicable service
26 requirements under Public Resources Code section 21167.6.5, subdivisions (a), (b), and (c).
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VERIFIED PETITION FOR WRIT OF MANDATE
26. In accordance with Public Resources Code section 21167.6, subdivision (a), SWC
and KCWA concurrently filed an election to prepare the administrative record. The notice is
attached to this Petition as Exhibit “D.”
TIMELINESS AND REQUEST FOR CEQA HEARING
27. This lawsuit has been commenced within the time limits imposed for this action
under Code of Civil Procedure sections 312 and 343, and Public Resources Code sections 21167,
21168, and 21168.5.
28. Further, SWC and KCWA request a hearing on this Petition pursuant to Public
Resources Code section 21167.4.
ai 10 FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
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BZ 14 delivery of water supply to areas within and immediately adjacent to the Delta, and to regions of
15 the Delta.” (FEIR, 3-3.) According to the FEIR, the “main SWP Delta features” include the
16 Harvey O. Banks Pumping Plant and John E. Skinner Delta Fish Protective Facility. (FEIR, 3-3.)
17 The SWP is operated to provide flood control and water for agricultural, municipal, industrial,
18 and recreational purposes.
19 30. The Central Valley Project (“CV P”), which is operated by the United States
20 Bureau of Reclamation (“Reclamation”), also diverts water from the Delta and distributes it.
21 31. Given the Delta’s diverse ecosystem and the ongoing competing demands for the
22 scarce water resources available, the SWP and the CVP deliver water to a vast population and
23 hundreds of thousands of irrigated agricultural lands under the regulation and coordination of
24 many federal and state agencies to ensure compliance with all applicable laws.
25 32. To address the relationship between the SWP and the CVP, DWR and
26 Reclamation entered into an “Agreement Between the United States of America and the
27 Department of Water Resources of the State of California for Coordinated Operation of the
28 Central Valley Project and the State Water Project” (often referred to as the “Coordinated
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VERIFIED PETITION FOR WRIT OF MANDATE
Operation Agreement” or “COA”). COA governs how the SWP and the CVP share water and
responsibility to meet water quality and outflow requirements. COA is based on negotiated
principles of equitable sharing, arising from the requirement that operations be coordinated and,
as a matter of practical necessity, for two large projects to be able to operate together successfully
in a complex tidal estuary.
Special-status species within the Delta waters
33. The task of securing and safely managing California’s water supply is even more
critical due to the presence of several species in the Delta that are protected under state and
federal law. With respect to state law, the California Fish and Game Commission
ai 10 (“Commission”) is charged with the duty to list endangered and threatened species under CESA.
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ue 11 Relevant to this Petition, the Commission has listed four species occurring in the Delta: the Delta
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BZ 14 Regs. § 670.5.)
15 34. Once the Commission lists a species under CESA, the duties then largely shift to
16 Respondent CDFW to administer CESA’s requirements as applied to those species. One
17 important duty carried out by CDFW is to issue permits that allow for the “take” of a listed
18 species under CESA.
19 35. To fully understand species regulation in the Delta, it is also necessary to consider
20 the federal Endangered Species Act (“federal ESA”). Many species are afforded protection under
21 both the federal ESA and CESA, which is referred to as “dual listing.” Relevant here, three of the
22 four species protected under CESA— the Delta smelt, the winter-run Chinook salmon, and the
23 spring-run Chinook salmon— are also listed as endangered or threatened under the federal ESA.
24 Additionally, the Central Valley steelhead, Killer Whale, and Green Sturgeon are federally listed
25 but not listed under CESA. For species that are federally listed, the United States Fish and
26 Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) also have
27 oversight. To summarize, the listing status of Delta species is as follows:
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VERIFIED PETITION FOR WRIT OF MANDATE
Dual Listed Federal ESA listed only CESA listed only
Delta smelt Central Valley steelhead Longfin smelt
winter-run Chinook salmon Green Sturgeon
spring-run Chinook salmon Southern Resident Killer Whale
36. Pursuant to the federal ESA, the USFWS and NMFS have the responsibility to
conduct their own consultation in evaluating the long-term operations’ of the CVP and SWP
including take of federally listed species or impact to critical habitat that may occur incidental to
such operations. Ultimately, USFWS and NMFS issue biological opinions under the federal ESA
ai 10 that evaluate and include measures to ensure the protection of these species and their critical
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ue 11 habitat. Under Section 7 of the federal ESA, any contemplated take by a project is authorized by
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BZ 14 there may often be regulatory overlap with the federal ESA with respect to the measures for
15 protecting certain species, like three of the species here— the Delta smelt, the winter-run Chinook
16 salmon, and the spring-run Chinook salmon.) Specifically, CDFW may authorize the taking of a
17 listed species under CESA if it determines that the incidental take statement of USFWS and/or
18 NMFS “is consistent with” the requirements of CESA. (Fish and Game Code § 2080.1, sub. (c).)
19 Commonly referred to as a “Consistency Determination,” this approach encourages collaboration
20 amongst the various wildlife agencies, both federal and state, to avoid unnecessary conflicts or
21 inconsistent treatment of a project. When CDFW makes a Consistency Determination, a separate
22 incidental take permit under CESA is not required.
23 38. In operating the SWP, DWR ensures compliance with the federal ESA and CESA
24 by applying for permits to cover any take that SWP operations may cause. Until the ITP at issue
25 in this Petition, CDFW had always addressed the three dual-listed species through Consistency
26 Determinations, and thus had never previously issued a take permit for Delta smelt, winter-run
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* The federal ESA is different than CESA in that the federal ESA authorizes mitigation for adverse modification of
28 habitat. CESA does not.
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VERIFIED PETITION FOR WRIT OF MANDATE
Chinook salmon or spring-run Chinook salmon. For example, in 2008 and 2009, the USFWS and
NMFS issued biological opinions with incidental take statements that addressed Delta smelt,
winter-run and spring-run Chinook salmon (among other species). To provide CESA
authorization, CDFW adopted a Consistency Determination for those dual-listed species, with
only the state-listed Longfin smelt requiring a separate incidental take permit under CESA. Thus,
between 2009 and February 2020, the 2008/2009 federal BiOps, an Incidental Take Permit issued
by CDFW for Longfin smelt, and a Consistency Determination made by CDFW for all dual-listed
species (winter-run Chinook Salmon, spring-run Chinook Salmon and Delta smelt) governed
SWP operations.
ai 10 39. After reinitiation of consultation with USFWS and NMFS under federal ESA,
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15 Draft Environmental Impact Report for State Water Project Long Term Operations
16 Project
17 40. One month later, in November 2019, DWR released the DEIR for public review.
18 The DEIR analyzed impacts from the SWP LTO Project. Operation of the SWP LTO Project was
19 similar to project operations identified in the final version of the 2019 BA, which was transmitted
20 on January 31, 2019. The public comment period for the DEIR ran from November 21, 2019 to
21 January 6, 2020.
22 41. Ina section titled “Summary of Proposed Project,” the DEIR states that the SWP
23 LTO Project would “consist of multiple elements that are expected to characterize future
24 operations of SWP facilities, would modify ongoing programs being implemented as part of SWP
25 operations, would improve specific activities to enhance protection of special-status fish species,
26 and would support ongoing studies and research on these special-status species to improve the
27 basis of knowledge and management of these species. Implementation of these elements is
28 intended to continue operation of the SWP and deliver up to the full contracted water amounts
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VERIFIED PETITION FOR WRIT OF MANDATE
while minimizing and fully mitigating the take of listed species, in compliance with CESA
requirements.” (DEIR, 1-5.)
42. The SWP LTO Project's objective, as identified in the DEIR, is “to continue the
long-term operation of the SWP consistent with applicable laws, contractual obligations, and
agreements. DWR proposes to store, divert, and convey water in accordance with DWR’s
existing water rights to deliver water pursuant to water contracts and agreements up to full
contract quantities. DWR seeks to optimize water supply and improve operational flexibility
while protecting fish and wildlife based on the best available scientific information.” (DEIR, 3-
1)
ai 10 43. The DEIR analyzed the SWP LTO Project's indirect effects on hydrology as well
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BZ 14 44, Despite the fact that the SWP LTO Project would have no significant impacts on
15 the environment, the DEIR analyzed a No Project Alternative, as well as “Alternative 2a-
16 Proposed Project with Additional Spring Delta Outflow”; “Alternative 2B [sic]-Proposed Project
17 with Dedicated Water for Delta Outflow from SWP”; “Alternative 3-Installation of Physical and
18 non-physical Barriers”; and “Alternative 4-alternative Summer-Fall Action” (DEIR, 5-1 through
19 5-134.) The DEIR stated that the impacts of the “proposed project [the SWP LTO Project] and
20 Alternative 2b are essentially equivalent” with neither having any significant impacts; thus, the
21 DEIR considered both “the proposed project [the SWP LTO Project] and Alternative 2b... to be
22 the environmentally superior alternatives.” (DEIR 5-135.)
23 45. Notwithstanding the fact that one of the DEIR’s goals is “to deliver water pursuant
24 to water contracts and agreements up to full contract quantities” (DEIR, 3-1), DWR issued a press
25 release concurrently with the DEIR’s circulation that contradicts this stated goal. In conflict with
26 the DEIR, the press release states that DWR “does not seek to increase SWP exports.”
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DWR’sCESA Application
46. In December 2019— one month after releasing the DEIR— DWR submitted its
application for an incidental take permit under CESA (“CESA Application”) to CDFW. Under
CEQA, a project's objectives are critically important because any mitigation measures imposed to
protect listed species must maintain the project objectives “to the greatest extent possible.” Here,
DWR’s CESA Application describes the objectives of the project proposed in the application as
continuing “the long-term operation of the SWP consistent with applicable laws, contractual
obligations, and agreements. DWR proposed to store, divert, and convey water in accordance
with DWR’s existing water rights to deliver water pursuant to water contracts and agreements up
ai 10 to full contract quantities. DWR’s objectives are to optimize water supply and improve
dz
ue 11 operational flexibility while protecting fish and wildlife based on the best available scientific
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og 12 information.” (CESA Application, 3-1.)
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BZ 14 proposed in the BA and the DEIR in meaningful ways. For example, the CESA Application for
15 the first time included additional outflow above what was included in the BiOps and DEIR. One
16 new measure requires 100,000 acre feet of summer outflow from the SWP, even though the SWP
17 has not been shown to cause any take or impacts in the summer. Another requires April-May
18 export cuts in below-normal, above normal and wet years, with reductions in exports up to
19 approximately 405,000 acre-feet in some years. (FEIR, Table 5.3-1.) These additional measures
20 to reduce SWP water deliveries foreshadowed even further restrictive measures that CD FW
21 would demand later in the process.
22 48. At some point between drafting the DEIR and submitting the CESA Application,
23 the state abruptly backed away from the project proposed in the DEIR— the SWP LTO Project—
24 and switched to a new goal of seeking no increases in SWP exports as compared to the 2008-2009
25 biological opinions.
26
27
28
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VERIFIED PETITION FOR WRIT OF MANDATE
DWR’s approval of Refined Alternative 2b Project and certification of the Final
Environmental Impact Report under CEQA
49. DWR received over 60 letters from the public regarding the DEIR, including
SWC’s January 6, 2020 comment letter and KCWA’s January 13, 2020, comment letter. In these
comment letters, SWC and KCWA noted that the project proposed in the CESA Application
differed materially from the SWP LTO Project analyzed in the DEIR.
50. The new “no increased exports” goal resulted in the creation of an entirely new
project, which DWR identified as “Refined Alternative 2b” in the FEIR. The FEIR states that
under the Refined Alternative 2b Project, the “total volume of exports would generally be
ai 10 expected to remain the same.” (FEIR, 5-349.)
dz
ue 11 51. The Refined Alternative 2b Project is materially different from the SWP LTO
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og 12 Project and Alternative 2B identified in the DEIR, as well as from the project identified in
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15 disclosed or evaluated previously, including new winter-run Chinook salmon and spring-run
16 Chinook salmon daily loss triggers for export reductions; new winter-run Chinook salmon export
17 reduction triggers in November and December; and in the summer-fall period, a dry-year Suisun
18 Marsh Salinity Control Gate operation.
19 52. The FEIR ignores the fact that the Refined Alternative 2b Project is materially
20 different from anything analyzed in the DEIR and instead minimizes those differences by
21 claiming that the FEIR merely “refines” the information that was in the DEIR. But the reality is
22 that the Refined Alternative 2b Project is a new project that was not analyzed in the DEIR and
23 was not made available for public review and comment. Indeed, pages 5-39 through 5-285 of
24 FEIR appear to be entirely new information about the new Refined Alternative 2b Project. The
25 FEIR also includes two brand new technical appendices (J and K); substantial revisions to four
26 other technical appendices (C, E, F, and H); and provides a dozen new technical reports and
27
28 * The DEIR uses the terms “2B” and “2h” interchangeably.
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VERIFIED PETITION FOR WRIT OF MANDATE
modeling outcomes— all of which constitutes significant new information that was never
circulated for public review.
53. Despite the addition of new appendices and hundreds of pages in the FEIR, the
FEIR does not adequately analyze and mitigate for the Refined Alternative 2b Project’s
potentially significant impacts. The FEIR for example, did not fully model the Refined
Alternative 2b Project. In fact, the FEIR failed to model a myriad of scenarios that could lead to
reasonably foreseeable significant impacts on the environment, including, but not limited to,
impacts related to use of Oroville facilities to store water that CDFW is carrying over to a
subsequent year and daily salvage limits for winter-run and spring-run Chinook salmon. The
ai 10 FEIR failed to analyze potentially significant impacts related to flow actions; daily salvage
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ue 11 operation triggers for winter-run and sprint-run Chinook salmon; salvage-based operational limits
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og 12 for Delta smelt; the combined effect of multiple layers of OMR limits; and CDFW’s broad
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15 Project, the FEIR includes other significant new information and changes to the SWP LTO
16 Project analyzed in the DEIR. The FEIR modifies the project’s objective by adding a new project
17 purpose that was not included in the DEIR’s SWP LTO Project objectives, as follows: “The
18 underlying purpose of the Proposed Project is to obtain incidental take authorization from
19 the... [DFW]” in order to continue operating the SWP. (FEIR, 3-1.) The FEIR thus changes
20 the primary objective of the project from continuing long term operation of the SWP to obtaining
21 atake permit. This is significant new information that was never circulated for public comment.
22 55. The FEIR also includes significant new information regarding the environmentally
23 superior alternative. As discussed above, the DEIR concluded that the SWP LTO Project and
24 Alternative 2B (also referred to in the DEIR as 2b) were both the environmentally superior
25 alternatives. In contrast, the FEIR concludes that the Refined Alternative 2b Project— which the
26 FEIR states would result in no increase in Delta exports— is the environmentally superior
27 alternative. (FEIR, 5-349-350.) The FEIR continues that the “major environmental benefits
28 associated with” the Refined Alternative 2b Project “include the curtailment of exports by up to
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VERIFIED PETITION FOR WRIT OF MANDATE
150 thousand acre feet (TAF) in Above Normal, Below Normal, and Dry water years to maintain
the current SWP spring outflow contribution and provide an adaptively-managed 100 TAF bock
of Delta outflow in June through November of Wet and Above Normal water years....” (FEIR
3-349-350.)
56. According to DWR’s Notice of Determination, which OPR posted on March 30,
2020, DWR approved the Refined Alternative 2b Project on March 27, 2020. According to
DWR’s Notice of Determination: (1) DWR concluded that the Refined Alternative 2b Project
would not have any significant impacts on the environment; (2) DWR did not adopt a mitigation,
monitoring and reporting program; (3) DWR did not make mitigation a condition of approval;
ai 10 and (4) DWR did adopt CEQA findings.
dz
ue 11 57. While DWR was preparing the FEIR in February 2020, Reclamation was taking
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og 12 action on the federal BiOps. On February 19, 2020, Reclamation signed the Record of Decision,
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BZ 14 CDFW’s issuance of the CESA Incidental Take Permit and CEQA action
15 58. CDFW departed from its prior approach of adopting Consistency Determinations
16 for the three dual listed species by issuing the ITP in March 2020 for all four of the Covered
17 Species over which it had jurisdiction— Delta smelt, Longfin smelt, winter-run Chinook salmon
18 and spring-run Chinook salmon. On April 1, 2020, OPR posted CDFW’s Notice of
19 Determination. According to CDFW’s Notice of Determination, CDFW approved the Refined
20 Alternative 2b Project and ITP on March 27, 2020, the very same date that that DWR approved
21 the Refined Alternative 2b Project and certified the FEIR. CDFW’s Notice of Determination also
22 states that: (1) CDFW concluded that the ITP would not have any significant impacts on the
23 environment; (2) CDFW imposed “additional” mitigation measures as a condition of approval;
24 (3) CDFW approved a mitigation monitoring and reporting prog
Preview
JOSEPH P. BY RNE, GENERAL COUNSEL Bar No. 190365 Exempt from filing fees Joseph.Byrne@ bbklaw.com Govt. Code§ 610. CHARITY SCHILLER, Bar No. 234291 Charity.Schiller@ bbklaw.com E-FILED AMY HOYT, Bar No. 149789 5/4/2020 8:00 AM Amy.Hoyt@ bbklaw.com Superior Court of California Best Best & Krieger LLP County of Fresno 3390 University Avenue, 5th Floor By: A. Ramos, Deputy P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Facsimile: (951) 686-3083 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS [Additional Counsel on Next Page] 10 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF FRESNO 13 STATE WATER CONTRACTORS and Case No. 20CECG01302 14 KERN COUNTY WATER AGENCY Filed under California Environmental Quality 15 Act (CEQA) Petitioners/Plaintiffs, 16 STATE WATER CONTRACTORS AND Vv KERN COUNTY WATER AGENCY’S 17 VERIFIED PETITION FOR WRIT OF STATE OF CALIFORNIA MANDATE FOR VIOLATION OF THE 18 DEPARTMENT OF FISH AND CALIFORNIA ENVIRONMENTAL WILDLIFE, STATE OF CALIFORNIA QUALITY ACT AND THE CALIFORNIA 19 DEPARTMENT OF WATER ENDANGERED SPECIES ACT RESOURCES, and DOES 1 through 100, 20 (Code of Civ. Proc. §§ 1085 & 1094.5; Pub. Respondents/Defendants/ Resources C ode § 21000 et seq.; Fish & Game 21 Real Parties in Interest. Code § 2050 et seq.) 22 23 ROES T through 100, [Deemed Verified as to Kern County Water Agency pursuant to Code of Civ. Proc., 24 Real Parties in Interest. 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE ADDITIONAL COUNSEL WILLIAM M. SLOAN, Bar No. 203583 WMSloan@V enable.com CHELSEA E. O'SULLIVAN, Bar No. 308369 ceosullivan@ V enable.com Venable LLP 101 California Street, Suite 3800 San Francisco, CA 94111 Telephone: (415) 343-4490 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS AMELIA T. MINABERRIGARAI, GENERAL COUNSEL, Bar No. 192359 ameliam@ kcwa.com KERN COUNTY WATER AGENCY 10 3200 Rio Mirada Drive Bakersfield, CA 93308 11 Telephone: (661) 634-1409 12 PAUL S WEILAND, Bar No. 237058 pweiland@ nossaman.com 13 Nossaman LLP 18101 Von Karman Ave Suite 1800 14 Irvine, CA 92612-0177 Telephone: (949) 833-7800 15 Attomeys for Plaintiff/Petitioner 16 KERN COUNTY WATER AGENCY 17 18 19 20 21 22 23 24 25 26 27 28 -2- VERIFIED PETITION FOR WRIT OF MANDATE Petitioners and Plaintiffs State Water Contractors (“SWC”) and Kern County Water Agency (“KCWA”) allege as follows: INTRODUCTION 1 The State Water Project (“SWP”) is an integral part of California’s water storage and delivery systems. It provides reliable water supply to nearly two-thirds of California’s population and to 750,000 acres of agricultural land. This lawsuit involves how the SWP will be operated over the next 10 years. 2 To facilitate those continued operations, Respondent California Department of Water Resources (“DWR”) must comply with the California Endangered Species Act, Fish & ai 10 Game Code § 2070 et seq. (“CESA”). To comply with CESA, DWR must obtain a permit from dz ue 11 Respondent California Department of Fish and Wildlife (“CD FW”) to operate the SWP. Acting Obue2 nurse wre ayo og 12 as lead agency, DWR prepared a Draft Environmental Impact Report (“DEIR”) that evaluated the ry ne BZ 14 Quality Act, Public Resources Code§ 21000 et seq. (“CEQA”).! 15 3 In its November 2019 DEIR, DWR concluded that the SWP LTO Project would 16 have no significant environmental impacts. The DEIR was supported by substantial evidence and 17 robust analysis. 18 4. In December 2019, however, the State abruptly backed away from its proposed 19 SWP LTO Project and pivoted to a new goal of no increases in SWP exports from the San 20 Francisco Bay/Sacramento-San Joaquin River Delta (“Delta”). DWR then submitted an 21 application for a take permit under CESA to CDFW, which proposed a project that was different 22 than the SWP LTO Project analyzed in the DEIR. In pursuing its new “no increases in SWP 23 exports” goal, the State disregarded the best available science and the substantial evidence 24 showing that increased exports could be achieved through more flexible operations informed by 25 real-time monitoring, without causing additional adverse impacts to the Delta and while fully 26 complying with CESA. 27 ' The implementing regulations for CEQA are found in title 14 of the California Code of Regulations § 15000 et seq. 28 and are hereinafter referred to as the “CEQA Guidelines.” -3- VERIFIED PETITION FOR WRIT OF MANDATE 5 To pursue this new goal, DWR approved a new project, the Refined Alternative 2b Project, and certified a Final Environmental Impact Report (“FEIR”)— even though neither the DEIR nor the FEIR analyzed the Refined Alternative 2b Project's impacts on the environment. Acting as a responsible agency under CEQA, CDFW relied on the FEIR to issue Incidental Take Permit No. 2081-2019-066 (“ITP”) under CESA. DWR’s approval of the Refined A Iternative 2b Project and certification of the FEIR violated CEQA. CDFW’s issuance of the ITP based on the FEIR violated CEQA and CESA. 6 As alleged in detail below, the defects in both the procedure used to prepare the FEIR, and in the analysis contained within the FEIR, are pervasive and fundamental. These ai 10 defects made informed decision-making and informed public participation impossible. The dz ue 11 actions violate CEQA’s procedural requirements and are reviewed de novo in this court. (See, Obue2 nurse wre ayo og 12 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512, 516.) The FEIR’s conclusions are ry ne BZ 14 CEQA’s procedural or substantive mandates. Because DWR relied on the defective FEIR when it 15 approved the Refined A Iternative 2b Project, that approval must be rescinded. Moreover, because 16 CDFW relied on that same defective FEIR when it issued the ITP, the approval of the ITP 17 similarly fails under CEQA. 18 7 As also alleged in detail below, CDFW violated CESA in issuing the ITP. 19 Specifically, CDFW did not adhere to CESA’s requirements in imposing mitigation measures on 20 the SWP. Additionally, CDFW overreached to obtain operational control over the SWP—a 21 domain reserved by law to DWR. Finally, CD FW failed to explain the restrictions it imposed on 22 SWP’s operations, effectively regulating without notice or discussion. Such “regulation by 23 surprise,” which impacts water supply reliability for the people of California, is intolerable. 24 CESA dictates standards that must be met and boundaries that must be respected for CDFW to 25 lawfully impose restrictions on the SWP. Because CDFW did not comply with these standards, 26 the ITP approval must be rescinded for further consideration in compliance with CESA. As will 27 be demonstrated, CDFW committed pervasive and fundamental errors in issuing the ITP and in 28 implementing CESA’s substantive requirements. These defects are subject to de-novo review in -4- VERIFIED PETITION FOR WRIT OF MANDATE this court. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal. 4th 459, 478.) CDFW’s decision to issue the ITP is also not supported by its findings and the findings themselves are not supported by substantial evidence. Because the ITP violates CESA, it must be rescinded. PARTIES 8 Petitioner and Plaintiff SWC is, and at all times mentioned herein was, a non-profit mutual benefit corporation organized and existing under the laws of the State of California to represent the common interests of 27 public water supply agencies that contract with the State of California, through DWR, for participation rights from the SWP.? The SWC’s member agencies ai 10 fund the construction, operation, and maintenance of the SWP and provide water from the SWP dz ue 11 to more than 25 million Californians and 750,000 acres of agricultural land, serving an area from Obue2 nurse wre ayo og 12 the Delta to the Bay Area, the Central Coast, Central Valley, and Southern California. Each of ry ne BZ 14 California, including each of the 27 members of the SWC, is party to a contract with DWR that 15 entitles it to participate in the SWP, and all but one SWC member agency receive SWP supplies 16 diverted from the Delta. The SWC’s member agencies have the right to use the SWP conveyance 17 system, and to receive a proportional share pursuant to an annual allocation that DWR makes 18 based on availability, which depends on precipitation, snowpack, available storage, water quality 19 and other regulations, as well as other factors. These contracts are central to the SWP’s 20 construction and operation because the water contractors fund all SWP capital and operating costs 21 associated with water supply. 22 23 ? These public agencies are located in the San Francisco Bay Area, along California’s Central Coast, in the Central Valley, and in Southem Califomia. SWC’s member agencies are The Metropolitan Water District of Southem 24 California, Kem County Water Agency, Tulare Lake Basin Water Storage District, Santa Clara Valley Water District, Alameda County Flood Control and Water Conservation District, Zone 7, Alameda County Water District, 25 Antelope Valley-East Kern Water Agency, Casitas Municipal Water District, Santa Clarita Valley Water Agency, Central Coast Water Authority, City of Y uba City, Coachella Valley Water District, County of Kings, Crestline-Lake 26 Arrowhead Water Agency, Desert Water Agency, Dudley Ridge Water District, Empire-West Side Irrigation District, Littlerock Creek Irrigation District, Mojave Water Agency, Napa County Flood Control and Water Conservation 27 District, Oak Flat Water District, Palmdale Water District, San Bernardino Valley Municipal Water District, San Gabriel Valley Municipal Water District, San Gorgonio Pass Water Agency, San Luis Obispo County Flood Control 28 and Water Conservation District, and Solano County Water A gency. -5- VERIFIED PETITION FOR WRIT OF MANDATE 9 Petitioner KCWA is presently, and at all times relevant hereto has been, a public agency created and existing pursuant to the Kern County Water Agency Act, Water Code Appendix chapter 99, and located in Kern County, California. KCWA entered into a long-term water supply contract with the State of California, acting through the Department of Water Resources, on November 15, 1963, for State Water Project water. KCWA serves as the local contracting entity in Kern County for the delivery of SWP water and is a member of SWC. 10. Respondent, Defendant, and Real Party in Interest DWR is an agency of the State of California under the California Natural Resources Agency. DWR operates the SWP, which is the nation’s largest state-built, multi-purpose, user-financed water project. DWR is the CEQA ai 10 lead agency charged with analyzing and disclosing the environmental impacts of the SWP long dz ue 11 term operations. On March 27, 2020, DWR approved the Refined Alternative 2b Project and Obue2 nurse wre ayo og 12 certified the FEIR. On March 30, 2020, the California Office of Planning and Research (“OPR”) ry ne BZ 14 CEQA, regarding DWR’s March 27th approval and FEIR certification. 15 11. Respondent, Defendant, and Real Party in Interest CDFW is an agency of the State 16 of California under the California Natural Resources Agency and is responsible for the 17 administration and enforcement of CESA. It also serves as a responsible agency under CEQA. 18 According to CDFW’s CEQA Notice of Determination, issued on March 27, 2020 (the very same 19 day that DWR approved the Refined Alternative 2b Project and certified the FEIR), CDFW 20 approved the ITP on March 27th, although the ITP itself is dated March 31, 2020. On April 1, 21 2020, OPR posted CDFW’s Notice of Determination for the ITP, which provides public notice of 22 CDFW’s actions under CEQA. 23 12. SWC and KCWA do not know the true names and capacities, whether individual, 24 corporate, associate, or otherwise, of Respondents and Defendants DOES 1 through 100, 25 inclusive, and therefore sue those Respondents and Defendants under fictitious names. Each of 26 the Respondents and Defendants is the agent and/or employee of Respondents DWR and CDFW, 27 and each performed acts on which this action is based within the course and scope of such party’s 28 agency and/or employment. Additionally, SWC and KCWA do not know the true names and -6- VERIFIED PETITION FOR WRIT OF MANDATE capacities, whether individual, corporate, associate, or otherwise, of Real Parties in Interest ROES 1 through 100, inclusive, and therefore sues those Real Parties in Interest under fictitious names. SWC and KCWA will amend this Petition to show the true names and capacities of these Doe Respondents and Roe Real Parties when those names and capacities have been ascertained. JURISDICTION AND VENUE 13. This Court has subject matter jurisdiction pursuant to Public Resources Code sections 21167, subdivision (a), 21168, and 21168.5, and Code of Civil Procedure sections 1060 et seq., 1085, and 1094.5. 14. Venue is proper in this Court under Code of Civil Procedure sections 401, ai 10 subdivision (1) and 395 because DWR and CDFW have their principal places of business and dz ue 11 legal residence in the County of Sacramento, and more specifically because the California Obue2 nurse wre ayo og 12 Attorney General has an office in the County of Fresno. (See Harris v. Alcoholic Beverage ry ne BZ 14 STANDING 15 15. SWC and KCWA’s water supply operations and water supply reliability, as well as 16 the water supply functions and use of SWC and KCWA’s members, will be directly and 17 adversely affected by: (1) DWR’s actions in certifying the FEIR and approving and implementing 18 the Refined Alternative 2b Project; and (2) CDFW’s reliance on that defective FEIR and issuance 19 of the legally flawed ITP. SWC and KCWA have no plain, speedy and adequate remedy in the 20 ordinary course of law in that SWC and KCWA are already suffering and will continue to suffer 21 irreparable harm because of the Refined Alternative 2b Project’s approval and ITP’s issuance. 22 16. SWC, by and through its members, and KCWA have a direct and beneficial 23 interest in DWR and CDFW’s legally adequate compliance with CEQA, CESA, and all other 24 applicable laws in approving and implementing the Refined Alternative 2b Project and the ITP. 25 SWC and KCWA submitted multiple objections on CEQA, CESA, and other grounds to DWR 26 before March 27, 2020, when DWR approved the Refined Alternative 2b Project. Further, SWC 27 submitted objections (on its and its members’ behalf) on CEQA, CESA, and other grounds to 28 CDFW’s proposed reliance on the FEIR as a responsible agency and proposed approval of the -7- VERIFIED PETITION FOR WRIT OF MANDATE ITP before March 27, 2020, when, according to CDFW’s Notice of Determination, CDFW made its CEQA and CESA findings and approved the ITP. 17. The adverse environmental impacts of DWR and CDFW’s illegal actions will directly and substantially affect SWC, by and through its members, including KCWA. SWC, KCWA and SWC’s other members rely upon water exported from the Delta. Accordingly, any action, including the Refined Alternative 2b Project and the ITP, that impacts water supply reliability is one in which SWC, KCWA and SWC’s other members have a beneficial interest. 18. Through this action, SWC and KCWA seek to promote and enforce CEQA and CESA’s purposes, which are defeated by the challenged approvals. ai 10 19. CEQA’s purposes include full disclosure of environmental impacts, informed dz ue 11 public participation, and informed decision-making. Here, DWR and CDFW’s approvals were Obue2 nurse wre ayo og 12 made without complete and accurate information, in violation of CEQA. Ascertaining the true ry ne BZ 14 and the public, and providing a fair opportunity for the public to participate in that evaluation 15 process are purposes that are within the zone of interests that CEQA was intended to protect. 16 20. The zone of interests that CESA was intended to protect includes ensuring that the 17 impacts of taking of endangered species and threatened species are minimized and fully mitigated 18 in a manner that is (1) proportional to the impact of the taking of the species and (2) possible to 19 be implemented utilizing methods of mitigation that maintain the applicant’s objectives to the 20 greatest extent possible. KCWA and SWC’s other members receive water from the SWP. Asa 21 result, SWC, KCWA and SWC’s other members have invested significant resources in 22 developing Delta science and achieving collaborative management of the SWP. The ITP directly 23 and adversely affects the investment of those resources and impairs overall management of the 24 SWP. 25 21. DWR has a mandatory and public duty to comply with CEQA and all other 26 applicable laws when certifying the FEIR and approving and implementing the Refined 27 Alternative 2b Project. CDFW has a mandatory and public duty to comply with CEQA, CESA 28 and all other applicable laws when relying on the FEIR as a responsible agency and issuing the -8- VERIFIED PETITION FOR WRIT OF MANDATE ITP. The issues in this action under CEQA and CESA are issues of public right, and SWC and KCWA bring this action in the public interest to enforce DWR and CDFW’s public duties. EXHAUSTION OF ADMINISTRATIVE REMEDIES AND NOTICES 22. SWC and KCWA have performed or are excused from performing any and all conditions precedent to filing this action. SWC and KCWA fully exhausted all administrative remedies to the extent feasible by objecting to DWR and CDFW in writing during and after the public comment period provided by CEQA. SWC and KCWA also requested that DWR and CDFW comply with CEQA and CESA. SWC, KCWA, and/or other agencies, organizations, and individuals raised each of the legal deficiencies asserted in this Petition in writing prior to the ai 10 approval of the Refined Alternative 2b Project, the certification of the FEIR and issuance of the dz ue 11 ITP. Furthermore, the extensive new information that was not publicly disclosed and which Obue2 nurse wre ayo og 12 formed the basis of the FEIR, and the ITP which was never made public prior to its approval, ry ne BZ 14 and KCWA are alternatively excused from any obligation to exhaust their administrative 15 remedies. (E.g., Pub. Resources Code § 21177 [any obligation to exhaust administrative 16 remedies under CEQA “does not apply to any alleged grounds ... for which there was not a 17 public hearing or other opportunity for members of the public to raise those objections orally or in 18 writing before the approval of the project... ”].) 19 23. SWC and KCWA have complied with Public Resources Code section 21167.5 by 20 providing DWR and CDFW notice of SWC’s intent to commence this action. The notices are 21 attached to this Petition as Exhibits “A” and “B.” 22 24. In accordance with Public Resources Code section 21167.7, SWC and KCWA 23 concurrently provided a copy of this Petition to the California Attomey General. The notice is 24 attached to this Petition as Exhibit “C.” 25 25. Service of this Petition on DWR and CDFW satisfy any applicable service 26 requirements under Public Resources Code section 21167.6.5, subdivisions (a), (b), and (c). 27 28 -9- VERIFIED PETITION FOR WRIT OF MANDATE 26. In accordance with Public Resources Code section 21167.6, subdivision (a), SWC and KCWA concurrently filed an election to prepare the administrative record. The notice is attached to this Petition as Exhibit “D.” TIMELINESS AND REQUEST FOR CEQA HEARING 27. This lawsuit has been commenced within the time limits imposed for this action under Code of Civil Procedure sections 312 and 343, and Public Resources Code sections 21167, 21168, and 21168.5. 28. Further, SWC and KCWA request a hearing on this Petition pursuant to Public Resources Code section 21167.4. ai 10 FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION dz ue 11 Historic regulation of the State Water Project Obue2 nurse wre ayo og 12 29. The SWP includes water, power, and conveyance systems, which convey an ry ne BZ 14 delivery of water supply to areas within and immediately adjacent to the Delta, and to regions of 15 the Delta.” (FEIR, 3-3.) According to the FEIR, the “main SWP Delta features” include the 16 Harvey O. Banks Pumping Plant and John E. Skinner Delta Fish Protective Facility. (FEIR, 3-3.) 17 The SWP is operated to provide flood control and water for agricultural, municipal, industrial, 18 and recreational purposes. 19 30. The Central Valley Project (“CV P”), which is operated by the United States 20 Bureau of Reclamation (“Reclamation”), also diverts water from the Delta and distributes it. 21 31. Given the Delta’s diverse ecosystem and the ongoing competing demands for the 22 scarce water resources available, the SWP and the CVP deliver water to a vast population and 23 hundreds of thousands of irrigated agricultural lands under the regulation and coordination of 24 many federal and state agencies to ensure compliance with all applicable laws. 25 32. To address the relationship between the SWP and the CVP, DWR and 26 Reclamation entered into an “Agreement Between the United States of America and the 27 Department of Water Resources of the State of California for Coordinated Operation of the 28 Central Valley Project and the State Water Project” (often referred to as the “Coordinated - 10- VERIFIED PETITION FOR WRIT OF MANDATE Operation Agreement” or “COA”). COA governs how the SWP and the CVP share water and responsibility to meet water quality and outflow requirements. COA is based on negotiated principles of equitable sharing, arising from the requirement that operations be coordinated and, as a matter of practical necessity, for two large projects to be able to operate together successfully in a complex tidal estuary. Special-status species within the Delta waters 33. The task of securing and safely managing California’s water supply is even more critical due to the presence of several species in the Delta that are protected under state and federal law. With respect to state law, the California Fish and Game Commission ai 10 (“Commission”) is charged with the duty to list endangered and threatened species under CESA. dz ue 11 Relevant to this Petition, the Commission has listed four species occurring in the Delta: the Delta Obue2 nurse wre ayo og 12 smelt (endangered), the Longfin smelt (threatened), the winter-run Chinook salmon (endangered), ry ne BZ 14 Regs. § 670.5.) 15 34. Once the Commission lists a species under CESA, the duties then largely shift to 16 Respondent CDFW to administer CESA’s requirements as applied to those species. One 17 important duty carried out by CDFW is to issue permits that allow for the “take” of a listed 18 species under CESA. 19 35. To fully understand species regulation in the Delta, it is also necessary to consider 20 the federal Endangered Species Act (“federal ESA”). Many species are afforded protection under 21 both the federal ESA and CESA, which is referred to as “dual listing.” Relevant here, three of the 22 four species protected under CESA— the Delta smelt, the winter-run Chinook salmon, and the 23 spring-run Chinook salmon— are also listed as endangered or threatened under the federal ESA. 24 Additionally, the Central Valley steelhead, Killer Whale, and Green Sturgeon are federally listed 25 but not listed under CESA. For species that are federally listed, the United States Fish and 26 Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) also have 27 oversight. To summarize, the listing status of Delta species is as follows: 28 -11- VERIFIED PETITION FOR WRIT OF MANDATE Dual Listed Federal ESA listed only CESA listed only Delta smelt Central Valley steelhead Longfin smelt winter-run Chinook salmon Green Sturgeon spring-run Chinook salmon Southern Resident Killer Whale 36. Pursuant to the federal ESA, the USFWS and NMFS have the responsibility to conduct their own consultation in evaluating the long-term operations’ of the CVP and SWP including take of federally listed species or impact to critical habitat that may occur incidental to such operations. Ultimately, USFWS and NMFS issue biological opinions under the federal ESA ai 10 that evaluate and include measures to ensure the protection of these species and their critical dz ue 11 habitat. Under Section 7 of the federal ESA, any contemplated take by a project is authorized by Obue2 nurse wre ayo og 12 an “incidental take statement” that is included as part of the biological opinion. ry ne BZ 14 there may often be regulatory overlap with the federal ESA with respect to the measures for 15 protecting certain species, like three of the species here— the Delta smelt, the winter-run Chinook 16 salmon, and the spring-run Chinook salmon.) Specifically, CDFW may authorize the taking of a 17 listed species under CESA if it determines that the incidental take statement of USFWS and/or 18 NMFS “is consistent with” the requirements of CESA. (Fish and Game Code § 2080.1, sub. (c).) 19 Commonly referred to as a “Consistency Determination,” this approach encourages collaboration 20 amongst the various wildlife agencies, both federal and state, to avoid unnecessary conflicts or 21 inconsistent treatment of a project. When CDFW makes a Consistency Determination, a separate 22 incidental take permit under CESA is not required. 23 38. In operating the SWP, DWR ensures compliance with the federal ESA and CESA 24 by applying for permits to cover any take that SWP operations may cause. Until the ITP at issue 25 in this Petition, CDFW had always addressed the three dual-listed species through Consistency 26 Determinations, and thus had never previously issued a take permit for Delta smelt, winter-run 27 * The federal ESA is different than CESA in that the federal ESA authorizes mitigation for adverse modification of 28 habitat. CESA does not. -12- VERIFIED PETITION FOR WRIT OF MANDATE Chinook salmon or spring-run Chinook salmon. For example, in 2008 and 2009, the USFWS and NMFS issued biological opinions with incidental take statements that addressed Delta smelt, winter-run and spring-run Chinook salmon (among other species). To provide CESA authorization, CDFW adopted a Consistency Determination for those dual-listed species, with only the state-listed Longfin smelt requiring a separate incidental take permit under CESA. Thus, between 2009 and February 2020, the 2008/2009 federal BiOps, an Incidental Take Permit issued by CDFW for Longfin smelt, and a Consistency Determination made by CDFW for all dual-listed species (winter-run Chinook Salmon, spring-run Chinook Salmon and Delta smelt) governed SWP operations. ai 10 39. After reinitiation of consultation with USFWS and NMFS under federal ESA, dz ue 11 DWR and Reclamation jointly submitted the Biological Assessment in 2019. On October 22, Obue2 nurse wre ayo og 12 2019 the USFWS and NMFS issued their Biological Opinions (“BiOps”) for long term operations ry ne BZ 14 Chinook salmon (as well as green sturgeon and steelhead). 15 Draft Environmental Impact Report for State Water Project Long Term Operations 16 Project 17 40. One month later, in November 2019, DWR released the DEIR for public review. 18 The DEIR analyzed impacts from the SWP LTO Project. Operation of the SWP LTO Project was 19 similar to project operations identified in the final version of the 2019 BA, which was transmitted 20 on January 31, 2019. The public comment period for the DEIR ran from November 21, 2019 to 21 January 6, 2020. 22 41. Ina section titled “Summary of Proposed Project,” the DEIR states that the SWP 23 LTO Project would “consist of multiple elements that are expected to characterize future 24 operations of SWP facilities, would modify ongoing programs being implemented as part of SWP 25 operations, would improve specific activities to enhance protection of special-status fish species, 26 and would support ongoing studies and research on these special-status species to improve the 27 basis of knowledge and management of these species. Implementation of these elements is 28 intended to continue operation of the SWP and deliver up to the full contracted water amounts -13- VERIFIED PETITION FOR WRIT OF MANDATE while minimizing and fully mitigating the take of listed species, in compliance with CESA requirements.” (DEIR, 1-5.) 42. The SWP LTO Project's objective, as identified in the DEIR, is “to continue the long-term operation of the SWP consistent with applicable laws, contractual obligations, and agreements. DWR proposes to store, divert, and convey water in accordance with DWR’s existing water rights to deliver water pursuant to water contracts and agreements up to full contract quantities. DWR seeks to optimize water supply and improve operational flexibility while protecting fish and wildlife based on the best available scientific information.” (DEIR, 3- 1) ai 10 43. The DEIR analyzed the SWP LTO Project's indirect effects on hydrology as well dz ue 11 as direct effects on surface water quality, aquatic biological resources, tribal cultural resources, Obue2 nurse wre ayo og 12 cumulative impacts and growth-inducing impacts, and concluded that the SWP LTO Project ry ne BZ 14 44, Despite the fact that the SWP LTO Project would have no significant impacts on 15 the environment, the DEIR analyzed a No Project Alternative, as well as “Alternative 2a- 16 Proposed Project with Additional Spring Delta Outflow”; “Alternative 2B [sic]-Proposed Project 17 with Dedicated Water for Delta Outflow from SWP”; “Alternative 3-Installation of Physical and 18 non-physical Barriers”; and “Alternative 4-alternative Summer-Fall Action” (DEIR, 5-1 through 19 5-134.) The DEIR stated that the impacts of the “proposed project [the SWP LTO Project] and 20 Alternative 2b are essentially equivalent” with neither having any significant impacts; thus, the 21 DEIR considered both “the proposed project [the SWP LTO Project] and Alternative 2b... to be 22 the environmentally superior alternatives.” (DEIR 5-135.) 23 45. Notwithstanding the fact that one of the DEIR’s goals is “to deliver water pursuant 24 to water contracts and agreements up to full contract quantities” (DEIR, 3-1), DWR issued a press 25 release concurrently with the DEIR’s circulation that contradicts this stated goal. In conflict with 26 the DEIR, the press release states that DWR “does not seek to increase SWP exports.” 27 28 -14- VERIFIED PETITION FOR WRIT OF MANDATE DWR’sCESA Application 46. In December 2019— one month after releasing the DEIR— DWR submitted its application for an incidental take permit under CESA (“CESA Application”) to CDFW. Under CEQA, a project's objectives are critically important because any mitigation measures imposed to protect listed species must maintain the project objectives “to the greatest extent possible.” Here, DWR’s CESA Application describes the objectives of the project proposed in the application as continuing “the long-term operation of the SWP consistent with applicable laws, contractual obligations, and agreements. DWR proposed to store, divert, and convey water in accordance with DWR’s existing water rights to deliver water pursuant to water contracts and agreements up ai 10 to full contract quantities. DWR’s objectives are to optimize water supply and improve dz ue 11 operational flexibility while protecting fish and wildlife based on the best available scientific Obue2 nurse wre ayo og 12 information.” (CESA Application, 3-1.) ry ne BZ 14 proposed in the BA and the DEIR in meaningful ways. For example, the CESA Application for 15 the first time included additional outflow above what was included in the BiOps and DEIR. One 16 new measure requires 100,000 acre feet of summer outflow from the SWP, even though the SWP 17 has not been shown to cause any take or impacts in the summer. Another requires April-May 18 export cuts in below-normal, above normal and wet years, with reductions in exports up to 19 approximately 405,000 acre-feet in some years. (FEIR, Table 5.3-1.) These additional measures 20 to reduce SWP water deliveries foreshadowed even further restrictive measures that CD FW 21 would demand later in the process. 22 48. At some point between drafting the DEIR and submitting the CESA Application, 23 the state abruptly backed away from the project proposed in the DEIR— the SWP LTO Project— 24 and switched to a new goal of seeking no increases in SWP exports as compared to the 2008-2009 25 biological opinions. 26 27 28 -15- VERIFIED PETITION FOR WRIT OF MANDATE DWR’s approval of Refined Alternative 2b Project and certification of the Final Environmental Impact Report under CEQA 49. DWR received over 60 letters from the public regarding the DEIR, including SWC’s January 6, 2020 comment letter and KCWA’s January 13, 2020, comment letter. In these comment letters, SWC and KCWA noted that the project proposed in the CESA Application differed materially from the SWP LTO Project analyzed in the DEIR. 50. The new “no increased exports” goal resulted in the creation of an entirely new project, which DWR identified as “Refined Alternative 2b” in the FEIR. The FEIR states that under the Refined Alternative 2b Project, the “total volume of exports would generally be ai 10 expected to remain the same.” (FEIR, 5-349.) dz ue 11 51. The Refined Alternative 2b Project is materially different from the SWP LTO Obue2 nurse wre ayo og 12 Project and Alternative 2B identified in the DEIR, as well as from the project identified in ry ne BZ 14 LTO Project analyzed in the DEIR, as Alternative 2b added operational criteria that had not been 15 disclosed or evaluated previously, including new winter-run Chinook salmon and spring-run 16 Chinook salmon daily loss triggers for export reductions; new winter-run Chinook salmon export 17 reduction triggers in November and December; and in the summer-fall period, a dry-year Suisun 18 Marsh Salinity Control Gate operation. 19 52. The FEIR ignores the fact that the Refined Alternative 2b Project is materially 20 different from anything analyzed in the DEIR and instead minimizes those differences by 21 claiming that the FEIR merely “refines” the information that was in the DEIR. But the reality is 22 that the Refined Alternative 2b Project is a new project that was not analyzed in the DEIR and 23 was not made available for public review and comment. Indeed, pages 5-39 through 5-285 of 24 FEIR appear to be entirely new information about the new Refined Alternative 2b Project. The 25 FEIR also includes two brand new technical appendices (J and K); substantial revisions to four 26 other technical appendices (C, E, F, and H); and provides a dozen new technical reports and 27 28 * The DEIR uses the terms “2B” and “2h” interchangeably. - 16- VERIFIED PETITION FOR WRIT OF MANDATE modeling outcomes— all of which constitutes significant new information that was never circulated for public review. 53. Despite the addition of new appendices and hundreds of pages in the FEIR, the FEIR does not adequately analyze and mitigate for the Refined Alternative 2b Project’s potentially significant impacts. The FEIR for example, did not fully model the Refined Alternative 2b Project. In fact, the FEIR failed to model a myriad of scenarios that could lead to reasonably foreseeable significant impacts on the environment, including, but not limited to, impacts related to use of Oroville facilities to store water that CDFW is carrying over to a subsequent year and daily salvage limits for winter-run and spring-run Chinook salmon. The ai 10 FEIR failed to analyze potentially significant impacts related to flow actions; daily salvage dz ue 11 operation triggers for winter-run and sprint-run Chinook salmon; salvage-based operational limits Obue2 nurse wre ayo og 12 for Delta smelt; the combined effect of multiple layers of OMR limits; and CDFW’s broad ry ne BZ 14 54. In addition to the significant new information regarding the Refined Alternative 2b 15 Project, the FEIR includes other significant new information and changes to the SWP LTO 16 Project analyzed in the DEIR. The FEIR modifies the project’s objective by adding a new project 17 purpose that was not included in the DEIR’s SWP LTO Project objectives, as follows: “The 18 underlying purpose of the Proposed Project is to obtain incidental take authorization from 19 the... [DFW]” in order to continue operating the SWP. (FEIR, 3-1.) The FEIR thus changes 20 the primary objective of the project from continuing long term operation of the SWP to obtaining 21 atake permit. This is significant new information that was never circulated for public comment. 22 55. The FEIR also includes significant new information regarding the environmentally 23 superior alternative. As discussed above, the DEIR concluded that the SWP LTO Project and 24 Alternative 2B (also referred to in the DEIR as 2b) were both the environmentally superior 25 alternatives. In contrast, the FEIR concludes that the Refined Alternative 2b Project— which the 26 FEIR states would result in no increase in Delta exports— is the environmentally superior 27 alternative. (FEIR, 5-349-350.) The FEIR continues that the “major environmental benefits 28 associated with” the Refined Alternative 2b Project “include the curtailment of exports by up to -17- VERIFIED PETITION FOR WRIT OF MANDATE 150 thousand acre feet (TAF) in Above Normal, Below Normal, and Dry water years to maintain the current SWP spring outflow contribution and provide an adaptively-managed 100 TAF bock of Delta outflow in June through November of Wet and Above Normal water years....” (FEIR 3-349-350.) 56. According to DWR’s Notice of Determination, which OPR posted on March 30, 2020, DWR approved the Refined Alternative 2b Project on March 27, 2020. According to DWR’s Notice of Determination: (1) DWR concluded that the Refined Alternative 2b Project would not have any significant impacts on the environment; (2) DWR did not adopt a mitigation, monitoring and reporting program; (3) DWR did not make mitigation a condition of approval; ai 10 and (4) DWR did adopt CEQA findings. dz ue 11 57. While DWR was preparing the FEIR in February 2020, Reclamation was taking Obue2 nurse wre ayo og 12 action on the federal BiOps. On February 19, 2020, Reclamation signed the Record of Decision, ry ne BZ 14 CDFW’s issuance of the CESA Incidental Take Permit and CEQA action 15 58. CDFW departed from its prior approach of adopting Consistency Determinations 16 for the three dual listed species by issuing the ITP in March 2020 for all four of the Covered 17 Species over which it had jurisdiction— Delta smelt, Longfin smelt, winter-run Chinook salmon 18 and spring-run Chinook salmon. On April 1, 2020, OPR posted CDFW’s Notice of 19 Determination. According to CDFW’s Notice of Determination, CDFW approved the Refined 20 Alternative 2b Project and ITP on March 27, 2020, the very same date that that DWR approved 21 the Refined Alternative 2b Project and certified the FEIR. CDFW’s Notice of Determination also 22 states that: (1) CDFW concluded that the ITP would not have any significant impacts on the 23 environment; (2) CDFW imposed “additional” mitigation measures as a condition of approval; 24 (3) CDFW approved a mitigation monitoring and reporting prog