Delta Stewardship Council Cases ( 2020 )

Filed 4/10/20; Modified and certified for partial publication 5/12/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
C082944 & C086199
(JCCP No. 4758; Sacramento Super.
Ct. case Nos. 34-2013-80001500,
DELTA STEWARDSHIP COUNCIL CASES.
34-2013-80001530, 34-2013-
80001534; San Francisco Super. Ct.
case Nos. CPF-13-513047; CPF-13-
513048, CPF-13-513049.)
This case concerns the management of the Sacramento-San Joaquin Delta (Delta),
a critically important natural resource for California and the nation (Wat. Code,
§ 85002).1 It is the most valuable estuary and wetland ecosystem on the west coast of
North and South America, and is the hub of California’s water delivery system. (Ibid.) It
is endowed with many invaluable and unique resources of major statewide significance,
1 Unless otherwise specified, undesignated statutory references are to the Water Code.
1
including highly productive agriculture, recreational assets, fisheries, and wildlife
environment. (§ 12981, subds. (a), (b).) In addition, the economies of major regions of
the state depend on the ability to use water within the Delta watershed or to import water
from the Delta watershed. More than two-thirds of California residents and more than
two million acres of highly productive farmland receive water exported from the Delta
watershed. (§ 85004, subd. (a).) Water diverted from the Delta watershed has made the
Central Valley the fruit basket and salad bowl of the nation. Unfortunately, the Delta is
not doing so well. After years of slow decline, the Delta’s watery ecosystem has gone
critical.
In California, the conflicts over water are legendary. At the heart of California’s
water troubles are scarcity of supply and competing demands—in particular, conflict with
the water needs of the ecosystem. This dynamic of conflict characterizes the essential
debate over management of the Delta. Due to ecosystem decline and increasing demand
for limited water resources, management of the Delta has been the subject of
considerable, and oftentimes intense, review, planning, and litigation. In 2009, after
decades of conflict and unsuccessful efforts to comprehensively address the many
problems and challenges facing the Delta, the Legislature found and declared that the
“Delta watershed and California’s water infrastructure are in crisis and existing Delta
policies are not sustainable,” and that “[r]esolving the crisis requires fundamental
reorganization of the state’s management of Delta watershed resources.” (§ 85001, subd.
(a).) In response to this crisis, the Legislature enacted the Sacramento-San Joaquin Delta
Reform Act of 2009 (§ 85000 et seq.) (Delta Reform Act or Act). As part of the Act, the
Legislature created the Delta Stewardship Council (Council) as an independent agency of
the state (§ 85200, subd. (a)) and charged it with adopting and implementing a legally
enforceable “Delta Plan,” a comprehensive, long-term management plan for the Delta
that furthers two “coequal goals”—“providing a more reliable water supply for California
2
and protecting, restoring, and enhancing the Delta ecosystem” (§§ 85001, subd. (c),
85054, 85059, 85300, subd. (a)).
Following the preparation of a program-level environmental impact report (PEIR)
pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et
seq.) (CEQA), the Council adopted the Delta Plan in May 2013, which includes a set of
recommendations and regulatory policies to achieve the coequal goals. The regulatory
policies were subsequently approved as regulations by the Office of Administrative Law,
and are currently codified at sections 5001-5016 of title 23 of the California Code of
Regulations. Thereafter, seven lawsuits were filed by various groups (e.g., water
exporters, in-Delta water users, environmental organizations) challenging the validity of
the Delta Plan, the Delta Plan regulations, and the PEIR for the Delta Plan. The lawsuits
were based primarily on alleged violations of the Delta Reform Act, the Administrative
Procedures Act (Gov. Code, § 11340 et seq.) (APA), and CEQA. Each lawsuit sought a
writ of mandate commanding the Council to vacate and set aside the Delta Plan and the
Delta Plan regulations, and to rescind its certification of the PEIR.
After the lawsuits were coordinated into one proceeding in Sacramento County
Superior Court,2 the trial court issued written rulings in May and July 2016 collectively
rejecting the legal challenges predicated on violations of the Delta Reform Act and the
2 The coordinated proceeding consisted of the following cases: San Luis Delta Mendota
Water Authority, et al. v. Delta Stewardship Council (Sacramento Super. Ct. case No. 34-
2013-80001500); State Water Contractors, et al. v. Delta Stewardship Council
(Sacramento Super. Ct. case No. 34-2013-80001530); North Coast Rivers Alliance, et al.
v. Delta Stewardship Council (Sacramento Super. Ct. case No. 34-2013-80001534);
California Water Impact Network, et al. v. Delta Stewardship Council (San Francisco
Super. Ct. case No. CPF-13-513047); Central Delta Water Agency, et al. v. Delta
Stewardship Council (San Francisco Super. Ct. case No. CPF-13-513048); Save the
California Delta Alliance v. Delta Stewardship Council (San Francisco Super. Ct. case
No. CPF-13-513049); and City of Stockton v. Delta Stewardship Council (San Joaquin
Super. Ct. case No. 39-2013-00298188-CU-WM-STK).
3
APA, with a few exceptions involving under-regulation by the Council. As a
consequence of the statutory violations, the trial court vacated and set aside the Delta
Plan and any applicable regulations and ordered the Council to correct the identified
deficiencies. The trial court did not reach the CEQA challenges, finding that there was
no longer a proposed project with a PEIR subject to review under CEQA.
Following the entry of judgment, timely appeals were filed in each of the
coordinated cases. In October 2017, the trial court granted a motion for attorney fees and
costs filed by the petitioners in California Water Impact Network, et al. v. Delta
Stewardship Council (San Francisco Super. Ct. case No. CPF-13-513047).3 The
petitioners in that case were awarded $94,698.33, representing a substantial reduction
from the amount requested—$1,440,713. The petitioners timely appealed from the trial
court’s fee order. The Council filed a timely cross-appeal.
In April 2018, while the appeals were pending, the Council adopted amendments
to the Delta Plan (Delta Plan Amendments) and certified the PEIR for the Delta Plan
Amendments.4 Due to a stipulated settlement, we dismissed the appeals taken from the
judgment entered in one of the coordinated cases in April 2019.5 In July 2019, we
3 The Council has filed a motion asking us to take judicial notice of the trial court’s fee
order. We grant the Council’s request. (Evid. Code, § 452, subd. (d).)
4 Delta Alliance has filed a motion asking us to take judicial notice of various
documents, including portions of the Delta Plan Amendments, portions of the PEIR for
the Delta Plan Amendments, comment letters submitted to the Council during the
environmental review process for the Delta Plan Amendments, and the Council’s
resolution adopting the Delta Plan Amendments and certifying the PEIR for the Delta
Plan Amendments. We grant Delta Alliance’s unopposed request for judicial notice.
(Evid. Code, § 452, subds. (c), (h).)
5 We dismissed the appeals taken from the judgment entered in City of Stockton v. Delta
Stewardship Council (San Joaquin Super. Ct. case No. 39-2013-00298188-CU-WM-
STK).
4
granted the request to consolidate the appeals filed in the attorney fee case (case
No. C086199) with the appeals filed in the merits case (case No. C082944) for purposes
of argument and disposition. Thus, currently before this court are the merits appeals filed
in six of the seven coordinated cases and the appeals taken from the trial court’s fee
order.
In the merits case, we are asked to consider the validity of the trial court’s rulings
on legal challenges to the Delta Plan and Delta Plan regulations. The challenges based on
violations of the Delta Reform Act can generally be summarized as asserting
overregulation or under regulation by the Council in violation of the Act. In the fee case,
we are asked to consider the validity of the trial court’s attorney fee order. For the
reasons stated below, we agree with the Council that the trial court erred in finding that it
violated the Act by failing to adopt, as legally enforceable regulations, performance
measure targets to achieve certain objectives of the Act. We also agree with the Council
that the remaining issues raised in its appeal regarding the statutory violations found by
the trial court have become moot due to the adoption of the Delta Plan Amendments. We
find no error in the fee award and therefore affirm the trial court’s fee order. In view of
our mootness determination, we will reverse and remand the judgments entered in the
four cases appealed by the Council in the merits case. These matters will be remanded to
the superior court with directions to dismiss the portions that have become moot. In all
other respects, we will affirm the judgment entered in each of the six coordinated cases
before us in the merits case.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
The Delta, Its Ecosystem, and California’s Water Supply
The Delta is the upstream, mostly freshwater portion of the San Francisco Estuary,
the largest estuarine system on the west coast of the Americas and a distinct and valuable
natural resource of vital and enduring interest to present and future residents of the state
5
and nation. (See §§ 85002, 85022, subd. (c).) It is a delicately balanced and
interconnected estuary and wetland ecosystem of hemispheric importance that is home to
a vast array of plants, fish, and wildlife, a critical stopping point on the Pacific flyway,
and an agricultural and recreational center. (See § 85022, subd. (c).) It is essential to
California’s water supply because its rivers and the miles of natural and manmade
sloughs and channels are the linchpin in how water is moved around California, primarily
for urban and agricultural uses. (See §§ 85002, 85004.) The Legislature has declared
that the Delta is a “natural resource of statewide, national, and international significance,
containing irreplaceable resources, and it is the policy of the state to recognize, preserve,
and protect those resources . . . for the use and enjoyment of current and future
generations.” (Pub. Resources Code, § 29701.) The Legislature has further declared that
“the cities, towns, and settlements within the delta are of significant historical, cultural,
and economic value and that their continued protection is important to the economic and
cultural vitality of the region.” (Pub. Resources Code, § 29708.)
The Delta is the terminus for the Delta watershed, which is California’s largest
watershed, spanning more than 45,000 square miles (30 million acres). The vast Delta
watershed encompasses the western slopes of the Sierra Nevada, the eastern slopes of the
coastal range, and the valleys that lie between these ranges. The Delta is located at the
western edge of the Central Valley and is formed by the confluence of the state’s two
largest rivers, the Sacramento from the north and the San Joaquin from the south. It lies
south of Sacramento and just east of where the Sacramento and San Joaquin Rivers enter
Suisun Bay. It extends westward to the Golden Gate and southward to San Jose. Water
in the Delta watershed starts as precipitation in the Sacramento River and San Joaquin
River watersheds and, unless diverted or otherwise used, flushes San Francisco Bay and
flows out to the ocean under the Golden Gate Bridge.
Variability and uncertainty are the dominant characteristics of California’s water
resources. Precipitation is the primary source of California’s water supply. However,
6
precipitation in California varies greatly from year to year, as well as by season and
where it falls geographically in the state. Most of California’s precipitation occurs
between November and April, yet most of the state’s agricultural and urban water
demand is in the summer and early fall. In addition, most of the precipitation falls in the
mountains in the middle to northern half of the state, far from major population and
agricultural centers. In California, most people live along the coast and in the southern
portion of the state. In some years, the far north region of the state receives 100 inches or
more of precipitation while the southernmost regions receive only a few inches. These
basic characteristics of precipitation in California—seasonal timing and geography—and
their fundamental disconnect with where and when Californians demand water provide
the basic explanation for why management of the state’s water resources is such a
complicated and controversial matter.
The river systems flowing into the Delta drain about 40 percent of the land in
California and carry about half of the state’s total annual runoff. Prior to human
settlement, the Delta was a great marsh, a continuous 700,000-acre shallow wetland with
water covering the area for many months of the year. (See § 85003, subd. (a).) It was a
dynamic floodplain and tidal marshland that provided a rich and complex mixture of
habitat for diverse species of plants and animals. Approximately 400,000 acres of tidal
wetlands and other aquatic habitats connected with several hundred thousand acres of
nontidal wetlands and riparian forests. Flows of the Delta’s rivers and tidal channels
varied by season and year-to-year, sometimes pouring from the Sierra in great floods
whose fresh waters overflowed wetlands and floodplains, and at other times declining as
droughts shriveled rivers and brackish tidewaters (low salinity water created when salt
water and fresh water mix together) pushed inland. Natural levees, created by deposits of
sediment, allowed islands to emerge in the Delta during the dry summer months. Salinity
would fluctuate, depending on the season and the amount of precipitation in any one year,
7
and the species in the Delta ecosystem evolved and adapted to this unique, dynamic
system. (§ 85003, subd. (a).)
Beginning in the late 1800’s, more than 1,000 miles of levees were built in the
Delta to drain wetlands for agricultural use and to protect islands from damaging floods.
Channels were cut between sloughs or through islands to ease navigation and encourage
drainage without regard to effects on the estuary. Forests were cut and land leveled for
farming. Hundreds of thousands of acres of seasonally and tidally flooded wetlands were
converted into fertile agricultural fields. Eventually, nearly all of the rivers flowing to the
Delta were dammed.
Over the years, the Delta landscape was transformed from primeval wetland
complex to an archipelago of diked islands, where soils that once grew vast thickets of
tules now yield bountiful corn, alfalfa, tomatoes, and many other crops. Once a great
marsh, the Delta is now a network of channels and sunken “islands”6 that cover—
together with the Suisun Marsh—about 839,640 acres (approximately 1,300 square
miles). Laid over those islands and channels is the infrastructure of a 21st century
economy: water supply conduits; major arteries of the state’s electrical grid; natural gas
fields, storage facilities, and pipelines; highways and railways; and shipping channels, all
surrounded by an increasingly urban landscape. The levees in the Delta serve to protect
this infrastructure as well as the Delta’s water supplies, farms, and communities. They
define the Delta’s physical characteristics, influence the reliability of its water supplies
and ecosystem health, and are critical to its residents, farms, businesses, cities, and legacy
communities.
6 The farming of peat-rich ground like the Delta leads to oxidation, the literal vanishing
of soil, and thus to subsidence. Many Delta islands now lie 15 feet or more below sea
level and depend on aging dikes to prevent the water in adjacent channels from pouring
in.
8
Today, the Delta is home to a wide variety of plant, fish, and wildlife species
(including nonnative species and threatened or endangered native species), in addition to
farms and communities. More than half a million people live in the Delta and millions of
people visit each year for boating, fishing, and other recreational activities on its 700
miles of channels. While many people live in the Delta in cities, the Delta is largely
rural. Agriculture is the principal land use. Approximately 57 percent of the Delta and
Suisun Marsh (480,000 acres) support a highly productive agricultural industry that is
valued at hundreds of millions of dollars annually. More than 400,000 acres, or about 85
percent, of all farmland in the Delta is considered prime farmland with the best soils.
Because of the fertile peat soils and the moderating marine influence, the Delta’s
agriculture per-acre yields are almost 50 percent higher than the state’s average.
The Delta also serves as the hub of California’s water delivery system.7 (See
§ 85002.) Two major water systems—the federal Central Valley Project (CVP) and
California’s State Water Project (SWP) divert water from the Delta and convey water
previously stored in upstream reservoirs through the Delta, primarily for urban and
agricultural uses in regions south of the Delta, including the San Francisco Bay Area,
7 “ ‘The history of California water development and distribution is a story of supply and
demand. California’s critical water problem is not a lack of water but uneven distribution
of water resources. The state is endowed with flowing rivers, countless lakes and streams
and abundant winter rains and snowfall. But while over 70 percent of the stream flow
lies north of Sacramento, nearly 80 percent of the demand for water supplies originates in
the southern regions of the state. And because of the semiarid climate, rainfall is at a
seasonal low during the summer and fall when the demand for water is greatest;
conversely, rainfall and runoff from the northern snowpacks occur in late winter and
early spring when user demand is lower. [Citation.] Largely to remedy such seasonal
and geographic maldistribution, while simultaneously providing relief from devastating
floods and droughts, the California water projects were ultimately conceived and
formed.’ ” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 691.)
9
Central Valley, Central Coast, and Southern California.8 More than two-thirds of
California residents (approximately 27 million people) and millions of acres of farmland
rely on water diverted from the Delta watershed. (See § 85004, subd. (a).) This water
plays a critical role in helping to sustain a major portion of the state’s $1.9 trillion
economy. It fuels both local economies and those in export areas hundreds of miles
away.
Approximately half of the water that historically flowed into and through the Delta
is now diverted for human use, never reaching the sea. While some of the diversion of
water occurs at points upstream, before the Sacramento and San Joaquin Rivers reach the
Delta, the last and largest draws take place in the Delta itself. On the southeast edge of
the Delta, two sets of mighty pumps (one each for the CVP & SWP) extract water into
delivery systems that ship water throughout the state to users who hold water supply
contracts with the State of California (SWP contracts) or federal government (CVP
contracts). Although the CVP and SWP were originally engineered to reliably deliver
water to water service contractors and water rights holders without commensurate
consideration for impacts on native species, the projects are currently operated in a
coordinated fashion to optimize system efficiencies and to comply with state and federal
regulatory restrictions that are intended to protect water quality and sensitive
environmental resources through careful orchestration of reservoir releases upstream of
the Delta and pumping from south of the Delta. This close coordination has resulted in
8 In 1933, the Legislature approved the construction of the CVP, the nation’s largest
federal reclamation project. The CVP is the biggest surface water storage and delivery
system in California, with a geographic scope covering 35 of the state’s 58 counties.
(§ 85003, subd. (c).) It includes 20 reservoirs, eight power plants, two pumping-
generating plants, two pumping plants, and approximately 500 miles of major canals and
aqueducts. Approximately 25 years after the Legislature approved the CVP, California
voters approved the construction of the SWP, the other major exporter of water from the
Delta.
10
flexible operation of the Delta facilities to improve reliability of Delta water deliveries as
well as to reduce system vulnerability to disruption.
The Delta Problem
The Delta is currently relied upon for many services and, as a result, is not
meeting the demands of farmers and urban water users who want assurances of supply
and, in some cases, more water. Nor is the Delta adequately serving the needs of fish and
wildlife—some threatened or endangered species’ numbers remain perilously low. And
the Delta itself remains inherently flood-prone.
Over the years, human modifications to the Delta have promoted California’s
economy, but they have also imperiled its ecological health. The Delta is the only
saltwater estuary in the world that is used as a conveyance system to deliver fresh water
for export. This creates substantial water supply and ecosystem conflicts.
The economies of major regions of the state rely upon the ability to use water
within the Delta watershed or to import water from the Delta watershed. Yet, these
diversions harm the Delta ecosystem. The long-term impacts of these diversions, on the
Delta and its watershed, in combination with many other factors, are causing native
fisheries to decline.
After many years of slow decline, the condition of the Delta ecosystem, as
measured especially by the population of wild salmon and other native fish, has gone
critical. The Delta is currently in an “ecological tailspin.” The list of causes negatively
affecting the Delta ecosystem begins, but does not end, with the diversion of water by the
CVP and SWP.9 The Delta ecosystem is also harmed by, among other things, altered
natural flows from human development (e.g., dams, levees), habitat loss from
9 The water diverted by the CVP and SWP has been characterized as “a kind of tax that
leaves the [Delta] [eco]system in a condition of chronic drought. The specific, peculiar
manner in which the last large gulps of water are withdrawn adds to the ecological cost.”
11
urbanization and agricultural use, degraded water quality from urban and agricultural
pollution, invasive plant and animal species, and increased salinity from tidal saltwater
intrusion10 and agricultural drainage.
All of those who depend on or value the Delta are concerned. Delta residents and
farmers face the possibility of floods from the east when the rivers flow strongly and of
salinity intrusion from the west if they flow too feebly. Fishermen, both commercial and
recreational, are worried about the future of salmon and other species. Water suppliers
that export water from the Delta find those supplies insecure, subject to interruption by
weather vagaries, levee failures, or pumping restrictions imposed in the desperate attempt
to stem the decline of fish.11
The Delta is in a state of crisis because people have been unable to find balance in
the tradeoffs among competing demands for its resources. Groups who seek to promote
their own interests in the Delta include water exporters, water users within the Delta,
upstream water users in the Delta watershed, environmentalists, and supporters of Delta
10 “ ‘The major factor affecting water quality in the Delta is saltwater intrusion. Delta
lands, situated at or below sea level, are constantly subject to ocean tidal action. Salt
water entering from San Francisco Bay extends well into the Delta, and intrusion of the
saline tidal waters is checked only by the natural barrier formed by fresh water flowing
out from the Delta. [¶] ‘But as fresh water was increasingly diverted from the Delta for
agricultural, industrial and municipal development, salinity intrusion intensified,
particularly during the dry summer months and in years of low precipitation and runoff
into the river systems. One of the major purposes of [the CVP and SWP] was
containment of maximum salinity intrusion into the Delta. By storing waters during
periods of heavy flow and releasing water during times of low flow, the freshwater
barrier could be maintained at a constant level.’ [Citation.]” (State Water Resources
Control Bd. Cases, supra, 136 Cal.App.4th at p. 694.)
11 Due to the critical decline of native fish in the Delta, such as the Chinook salmon and
Delta smelt, regulatory and court-ordered restrictions have been imposed on the
operations of the CVP and SWP. As a consequence, water suppliers currently receive
only a fraction of the water for which they hold supply contracts to export water under
the CVP or SWP.
12
urbanization. Tradeoffs and integration define the Delta dilemma: water conveyance
facilities that built strong urban and agricultural economies threaten ecosystem health.
Water that is beneficial for fish is alive with plankton and organic material, but sources of
drinking water are best in as pure a form as possible. The pollutants of upstream urban
and agricultural uses cause problems for downstream fish and water diverters alike. The
same oceangoing ships that opened the Central Valley to world trade also introduced
nonnative species that alter the Delta ecosystem. High water flows that historically
improved habitat and a diverse food web come with the threat of lost homes, flooded
farmland, and disaster for Delta residents and the California economy.
The crisis in the Delta worsens each day, posing a higher and higher risk of
ecological and economic disaster, including the collapse of California’s water delivery
system. Legal changes in recent decades, combined with growing societal awareness and
scientific understanding of how water project operations impact ecosystem health, have
had major implications for water operations in the Delta. The collision of changing
societal values, growing demands for water deliveries from the Delta, and declining
health of the Delta ecosystem have resulted in numerous complex and often bitter legal
challenges that have increasingly shifted critical Delta water management decisions to the
courts.
Management of the Delta and the Delta Reform Act
Sustainable management of the Delta is an exceedingly complex topic fraught
with longstanding conflicts and challenges. Not unlike other policy areas, when it comes
to natural resource issues, California has long attempted to manage symptoms rather than
treat core problems.
For decades, California has treated individual problems and challenges facing the
Delta without a comprehensive, systemwide approach. Since the mid-1980’s, California
has looked for ways to secure the natural and human values of the Delta while
maintaining its place in the state’s water plumbing. These efforts have generally started
13
in hope and ended in impasse. Currently, more than 200 federal, state, regional, and local
agencies have responsibility for some aspect of the Delta. As each agency focuses on its
specific mission, cooperation, collaboration, and cohesiveness have at times been elusive.
In recent years, environmentalists have turned to the courts, using the blunt tool of
the federal Endangered Species Act (16 U.S.C. § 1531 et seq.) to force curtailment of
water exports at certain times. In reaction, water suppliers south of the Delta have
complained of “regulatory drought.”
Prior to the Delta Reform Act and the creation of the Council, the most recent
effort to resolve the demands of the competing interests on the Delta was the “CALFED”
planning process. CALFED involved a consortium of state and federal agencies formed
to develop and implement a long-term plan to improve ecosystem quality, water quality,
water supply reliability, and reduce levee system vulnerability. However, the entity that
eventually oversaw that plan—the California Bay-Delta Authority—lacked any
meaningful authority to hold individual agencies and projects accountable to the plan,
which was heavily dependent on goodwill, generous state and federal funding, and Delta
conditions remaining generally as they had in the immediate past. Instead, goodwill and
funding evaporated in the face of fiscal crisis, scientists learned more about looming
effects of climate change and emerging stressors on the Delta, and competing interests
turned back to the courts to force one viewpoint or the other.
In 2006, then-Governor Schwarzenegger created the Delta Vision Blue Ribbon
Task Force (Task Force) and charged it with pointing the path forward from CALFED.
The Governor directed the Task Force to seek input from a broad array of public officials,
stakeholders, scientists, and engineers in drafting an independent public report setting
forth its findings and recommendations regarding the sustainable management of the
Delta, including recommendations regarding public policy changes, institutional changes,
oversight, land use, and implementation authorities. The Task Force was charged with
developing a strategic plan to pull the Delta out of its ecological tailspin by devising a
14
strategy to restore its environmental quality while ensuring a more reliable and stable
water system.
In 2008, the Task Force presented its findings and recommendations in its Delta
Vision Strategic Plan (Strategic Plan). At the outset, the Task Force recognized that the
Delta has been the subject of decades of political deadlock. As a consequence,
ecosystems have eroded, levees have deteriorated, fish populations have collapsed, and
California’s system of delivering water has become ever more precarious. The Task
Force concluded that the Delta’s state of crisis was compounded by the fact that more
than 200 federal, state, and local agencies play some role in managing the Delta’s
resources, but no one is in charge. It found that “existing fragmentation of policies and
projects guarantees continued failure in restoring the Delta ecosystem and in ensuring
reliable water supplies for California.” The Task Force therefore recommended that the
Legislature create a new governance structure with needed legal authority and
competencies to achieve the coequal goals of restoring the Delta’s ecosystem and
creating a more reliable water supply for California.
To accomplish the coequal goals, the Task Force recommended that policy
makers: (1) legally acknowledge the coequal goals of restoring the Delta ecosystem and
creating a more reliable water supply for California; (2) recognize and enhance the
unique cultural, recreational, and agricultural values of the California Delta as an
evolving place, which are critical to achieving the coequal goals; (3) restore the Delta
ecosystem as the heart of a healthy estuary; (4) promote statewide water conservation,
efficiency, and sustainable use; (5) build facilities to improve the existing water
conveyance system and expand statewide storage, and operate both to achieve the co-
equal goals; (6) reduce risks to people, property, and state interests in the Delta by
effective emergency preparedness, appropriate land uses, and strategic levee investments;
and (7) establish a new governance structure with the authority, responsibility,
15
accountability, sciences support, and secure funding to achieve these goals. The Task
Force proposed 22 strategies and 73 actions for achieving the coequal goals.
The Task Force concluded that accomplishing the coequal goals would require the
creation of a reliable water delivery system and Californians to become less dependent on
water supply from the Delta. It further concluded that healing the Delta and creating a
sustainable water supply would require a broad range of linked actions, including
statewide efforts to conserve water and more responsible use of existing supplies. The
Task Force noted that some of its recommendations would have greater success if
integrated into statewide policies, and that while the strategies in the Strategic Plan would
have effects over decades, conservation, water system efficiency, promoting regional
self-sufficiency, and Delta ecosystem revitalization are the most likely actions to improve
California’s water future in the near term. The Task Force explained that, through the
coequal goals and the related actions that go along with achieving them, the Strategic
Plan attempted to present a vision and strategies to break through California’s long years
of water wars and begin to effectively address the future.
In response to the Strategic Plan and the Delta’s state of crisis, the Legislature
enacted the Delta Reform Act in 2009, finding and declaring that “existing Delta policies
are not sustainable” and that “[r]esolving the crisis requires fundamental reorganization
of the state’s management of Delta watershed resources.” (§ 85001, subds. (a), (b).) In
enacting the Act, the Legislature stated that its intent was “to provide for the sustainable
management of the . . . Delta ecosystem, to provide for a more reliable water supply for
the state, to protect and enhance the quality of water supply from the Delta, and to
establish a governance structure that will direct efforts across state agencies to develop a
legally enforceable Delta Plan.” (§ 85001, subd. (c).)
16
In a distinct departure from CALFED, the Legislature created the Council as an
independent agency of the state12 (§ 85200, subd. (a)) and charged it with adopting and
implementing a legally enforceable “Delta Plan,” a comprehensive, long-term
management plan for the Delta that is built upon the principles of adaptive management13
and uses the best available science to further two coequal goals—“providing a more
reliable water supply for California and protecting, restoring, and enhancing the Delta
ecosystem.” (§§ 85300, subd. (a), 85302, subds. (a), (g), 85308, subds. (a), (f), 85054,
85059) The Legislature directed the Council to achieve the coequal goals “in a manner
that protects and enhances the unique cultural, recreational, natural resource, and
agricultural values of the Delta as an evolving place.” (§ 85054.)
Consistent with the recommendations in the Strategic Plan, the Delta Reform Act
provides that it is the policy of California to achieve the following objectives, which the
Legislature declared are inherent in the coequal goals for management of the Delta: (1)
“[m]anage the Delta’s water and environmental resources and the water resources of the
state over the long term”; (2) “[p]rotect and enhance the unique cultural, recreational, and
agricultural values of the California Delta as an evolving place”; (3) “[r]estore the Delta
ecosystem, including its fisheries and wildlife, as the heart of a healthy estuary and
12 The Council consists of seven voting members. Four members are appointed by the
Governor and confirmed by the Senate, one member is appointed by the Senate
Committee on Rules, one member is appointed by the Speaker of the Assembly, and one
member is the Chairperson of the Delta Protection Commission. (§ 85200, subd. (b).)
Council members are required to “possess diverse expertise and reflect a statewide
perspective.” (§ 85202.) The Council is advised by a 10-member board of nationally and
internationally prominent scientists, the Delta Independent Science Board. (§ 85280,
subd. (a).)
13 The Delta Reform Act defines “ ‘[a]daptive management’ ” as “a framework and
flexible decisionmaking process for ongoing knowledge acquisition, monitoring, and
evaluation leading to continuous improvement in management planning and
implementation of a project to achieve specified objectives.” (§ 85052.)
17
wetland ecosystem”; (4) “[p]romote statewide water conservation, water use efficiency,
and sustainable water use”; (5) “[i]mprove water quality to protect human health and the
environment consistent with achieving water quality objectives in the Delta”; (6)
“[i]mprove the water conveyance system and expand statewide water storage”; (7)
“[r]educe risks to people, property, and state interests in the Delta by effective emergency
preparedness, appropriate land uses, and investments in flood protection”; and (8)
“[e]stablish a new governance structure with the authority, responsibility, accountability,
scientific support, and adequate and secure funding to achieve these objectives.”
(§ 85020, subds. (a)-(h).)
The Delta Reform Act additionally provides that it is the policy of California “to
reduce reliance on the Delta in meeting California’s future water supply needs through a
statewide strategy of investing in improved regional supplies, conservation, and water use
efficiency.” (§ 85021.) To achieve the objective of reduced reliance on the Delta, the
Legislature mandated that “[e]ach region that depends on water from the Delta watershed
shall improve its regional self-reliance for water through investment in water use
efficiency, water recycling, advanced water technologies, local and regional water supply
projects, and improved regional coordination of local and regional water supply efforts.”
(Ibid.)
The Delta Reform Act requires the Council to “establish and oversee a committee
of agencies responsible for implementing the Delta Plan,” (§ 85204)14 which must
further the restoration of the Delta ecosystem15 and a reliable water supply (§ 85302,
14 Each agency that is part of the committee must “coordinate its actions pursuant to the
Delta Plan with the council and the other relevant agencies.” (§ 85204.)
15 The Delta Reform Act defines “ ‘[r]estoration’ ” as “the application of ecological
principles to restore a degraded or fragmented ecosystem and return it to a condition in
which its biological and structural components achieve a close approximation of its
18
subd. (a)). Specifically, section 85302 requires the Delta Plan to include measures that
promote the following characteristics of a healthy Delta ecosystem: (1) “[v]iable
populations of native resident and migratory species”; (2) “[f]unctional corridors for
migratory species”; (3) “[d]iverse and biologically appropriate habitats and ecosystem
processes”; (4) “[r]educed threats and stresses on the Delta ecosystem”; (5) and
“[c]onditions conducive to meeting or exceeding the goals in existing species recovery
plans and state and federal goals with respect to doubling salmon populations.” (§ 85302,
subd. (c)(1)-(5).) In addition, the Delta Plan must include measures to promote a more
reliable water supply that address all of the following: (1) “[m]eeting the needs for
reasonable and beneficial uses of water”; (2) “[s]ustaining the economic vitality of the
state”; and (3) “[i]mproving water quality to protect human health and the environment.”
(§ 85302, subd. (d)(1)-(3).) The Delta Plan must also include the following “subgoals
and strategies” for restoring a healthy ecosystem: (1) “[r]estore large areas of
interconnected habitats within the Delta and its watershed by [the year] 2100”; (2)
“[e]stablish migratory corridors for fish, birds, and other animals along selected Delta
river channels”; (3) “[p]romote self-sustaining, diverse populations of native and valued
species by reducing the risk of take and harm from invasive species”; (4) “[r]estore Delta
flows and channels to support a healthy estuary and other ecosystems”; (5) “[i]mprove
water quality to meet drinking water, agriculture, and ecosystem long-term goals”; (6)
“[r]estore habitat necessary to avoid a net loss of migratory bird habitat and, where
feasible, increase migratory bird habitat to promote viable populations of migratory
birds.” (§ 85302, subd. (e)(1)-(6).) The Legislature directed the Council to “consider, for
incorporation into the Delta Plan, actions designed to implement the subgoals and
strategies,” (§ 85302, subd. (f)) and mandated that the Delta Plan include
natural potential, taking into consideration the physical changes that have occurred in the
past and the future impact of climate change and sea level rise.” (§ 85066.)
19
“recommendations regarding state agency management of lands in the Delta” (§ 85302,
subd. (h)).
The Legislature mandated that the Delta Plan: (1) “promote statewide water
conservation, water use efficiency, and sustainable use of water” (§ 85303); (2) “promote
options for new and improved infrastructure relating to the water conveyance in the
Delta, storage systems, and for the operation of both to achieve the coequal goals”
(§ 85304); and (3) “attempt to reduce risks to people, property, and state interests in the
Delta by promoting effective emergency preparedness, appropriate land uses, and
strategic levee investments” (§ 85305, subd. (a)).
The Legislature also mandated that the Delta Plan meet all of the following
requirements: (1) “[b]e based on the best available scientific information and the
independent science advice provided by the Delta Independent Science Board”; (2)
“[i]nclude quantified or otherwise measurable targets associated with achieving the
objectives of the Delta Plan”; (3) “[w]here appropriate, utilize monitoring, data
collection, and analysis of actions sufficient to determine progress toward meeting the
quantified targets”; (4) “[d]escribe the methods by which the council shall measure
progress toward achieving the coequal goals”; (5) “[w]here appropriate, recommend
integration of scientific and monitoring results into ongoing Delta water management”;
and (6) “[i]nclude a science-based, transparent, and formal adaptive management strategy
for ongoing ecosystem restoration and water management decisions.” (§ 85308, subds.
(a)-(f).) The Delta Plan must also include “performance measurements that will enable
the council to track progress in meeting the objectives of the Delta Plan. The
performance measurements shall include, but need not be limited to, quantitative or
otherwise measurable assessments of the status and trends in all of the following: [¶] (a)
The health of the Delta’s estuary and wetland ecosystem for supporting viable
populations of aquatic and terrestrial species, habitats, and processes, including viable
populations of Delta fisheries and other aquatic organisms. [¶] (b) The reliability of
20
California water supply imported from the Sacramento River or the San Joaquin River
watershed.” (§ 85211.)
In fulfilling its obligation to develop a Delta Plan that furthers the two coequal
goals, the Delta Reform Act requires the Council to “consult with federal, state, and local
agencies with responsibilities in the Delta.” (§ 85300, subds. (a), (b).) Upon the request
of the Council, all state agencies with responsibilities in the Delta must cooperate with
the Council in developing the Delta Plan. (§ 85300, subd. (b).) The Delta Plan must
include “subgoals and strategies to assist in guiding state and local agency actions related
to the Delta.” (§ 85300, subd. (a).) In developing the Delta Plan, the Legislature directed
the Council to “consider each of the strategies and actions set forth in the Strategic
Plan,”16 and authorized the Council, in its discretion, to include in the Delta Plan any of
the Strategic Plan’s strategies or actions, and to identify specific actions that state or local
agencies may take to implement the subgoals and strategies. (§ 85300, subd. (a).)
The Delta Reform Act authorizes the Council to “adopt regulations or guidelines
as needed to carry out the powers and duties identified in [the Act].” (§ 85210, subd. (i).)
It requires the Council to review the Delta Plan at least once every five years, and
authorizes the Council, in its discretion, to revise the Delta Plan as it “deems
appropriate.” (§ 85300, subd. (c).) In complying with this requirement, the Council has
the discretion to “request any state agency with responsibilities in the Delta to make
recommendations with respect to revision of the Delta Plan.” (§ 85300, subd. (c).)
16 The Delta Reform Act defines the “ ‘Strategic Plan’ ” as “both the ‘Delta Vision
Strategic Plan’ issued by the Delta Vision Blue Ribbon Task Force on October 17, 2008,
and the ‘Delta Vision Implementation Report’ adopted by the Delta Vision Committee
and dated December 31, 2008.” (§ 85067.)
21
The Delta Plan and the Council’s Regulatory Authority
In May 2013, following a comprehensive public process that allowed for input
from organizations and individuals representing diverse interests and the preparation of a
PEIR pursuant to CEQA, the Council unanimously adopted the Delta Plan. It is
California’s management plan for the Delta, prepared in consultation with and to be
carried out by all agencies in the field: the State Water Resources Control Board (Water
Board), ultimate arbiter of water rights and water quality; the California Department of
Water Resources, the state’s water planner and also operator of the SWP; the California
Department of Fish and Wildlife, responsible for the welfare of the living system of the
Delta; the Delta Protection Commission, which oversees land use and development on
low-lying Delta islands; and many more agencies, state and local. In addition, federal
agencies have promised their cooperation in carrying out the Delta Plan, including the
U.S. Bureau of Reclamation, which runs the CVP, the U.S. Fish and Wildlife Service, the
National Marine Fisheries Service, and the U.S. Army Corps of Engineers.
The Delta Plan, which spans nearly 300 pages, provides a detailed history,
description, and analysis of the various problems and challenges facing the Delta. It is
intended to be a foundational document that prioritizes actions and strategies in support
of key objectives, such as the requirement to reduce reliance on the Delta to meet future
water supply needs. It also restricts actions that may cause harm; serves as a guidebook
for all plans, projects, and programs that affect the Delta; and calls for further
investigation and focused study of specific issues.
The working parts of the Delta Plan are 73 recommendations and 14 policies.17
The recommendations are nonregulatory but call out actions essential to achieving the
17 The Delta Plan uses abbreviations to refer to its policies and recommendations. For
example, Water Reliability Policy 1 is referred to as “WR P1.” Similarly, Water
Reliability Recommendation 1 is referred to as “WR R1.”
22
coequal goals of the Delta Reform Act in a manner that protects and enhances Delta
values as an evolving place. By contrast, the policies are regulatory in nature; state and
local agencies proposing to undertake a “covered action”—a land use action as defined in
the Act—must comply with the policies. (See §§ 85022, subd. (a), 85057.5, subd. (a).)
The regulatory policies are enforced by the Council’s appellate authority and oversight
over covered actions. As explained by the Delta Plan, “In contrast to how many other
governmental plans are implemented, the Council does not exercise direct review and
approval authority over covered actions to determine their consistency with the
regulatory policies in the Delta Plan. Instead, State or local agencies self-certify Delta
Plan consistency, and the Council serves as an appellate body for those determinations.”
If the covered action is found to be inconsistent, the project may not proceed until it is
revised so that it is consistent with the Delta Plan.
In addition to the 14 regulatory policies and 73 recommendations, the Delta Plan
also identifies key issues for future evaluation by the Council and includes “performance
measures” to evaluate whether the Delta Plan is achieving its objectives over time.
Information learned from performance measures is an important part of how the Council
determines when and how to update the Delta Plan as part of the adaptive management
process.
As a general matter, the Delta Plan asks California and Californians to do six large
things: (1) use water more efficiently in cities and on farms, and develop alternative,
usually local, sources to improve and secure water supply; (2) get better at capturing and
storing the surplus water that nature provides in the wettest years, building reserves that
can be drawn on in dry ones; (3) provide adequate seaward flows in Delta channels, on a
schedule more closely mirroring historical rhythms, to revitalize the Delta ecosystem; (4)
bring back generous wetlands and riparian zones in the Delta for the benefit of fish and
birds; (5) restrict new urban development to those peripheral areas already definitely
earmarked for such growth, while supporting farming and recreation in the Delta’s core,
23
to preserve the Delta as a place; and (6) floodproof the Delta, as far as feasible, mainly by
improving levees and by providing more overflow zones where swollen rivers can spread
without doing harm.
The Delta Plan speaks most directly to water suppliers that serve water within the
Delta or export water out of the region. The Delta Plan requires all organizations that
receive water from the CVP and SWP to do their share to reduce reliance on the Delta,
setting specific reduction targets and actually putting measures in place. To meet the
projected demands of California’s growing population and achieve the goal of water
supply reliability, the Delta Plan calls for an “integrated approach that includes increased
water efficiency, local and regional diversification of water supplies, reduced reliance on
water from the Delta, improved regional self-reliance, and concurrent improvements to
storage and Delta infrastructure.” The Delta Plan explains that Delta water supplies can
be more reliable only when the Delta ecosystem is restored, which “will require new
investment in water facilities and alternative supplies, not just regulation of water project
operations or restoration of habitats for fish and wildlife.”
Because the Delta Plan’s 14 regulatory policies were intended to be enforceable
regulations having the authority of law, the Council submitted them to the Office of
Administrative Law as proposed regulations, as required under the APA. In August
2013, the Office of Administrative Law approved the 14 regulatory policies as
regulations. (See Gov. Code, § 11349.1.)
The Delta Plan regulations, which are codified at sections 5001-5016 of title 23 of
the California Code of Regulations, took effect on September 1, 2013. As previously
indicated, the regulations do not propose or require the implementation of any specific
project; rather, they establish legally enforceable standards that apply if a state or local
public agency proposes to undertake a “covered action,” which the Delta Reform Act
defines as a plan, program, or project within the meaning of section 21065 of the Public
24
Resources Code18 that meets all of the following conditions: (1) “[w]ill occur, in whole
or in part, within the boundaries of the Delta or Suisun Marsh”; (2) “[w]ill be carried out,
approved, or funded by the state or a local public agency”; (3) “[i]s covered by one or
more provisions of the Delta Plan”; and (4) “[w]ill have a significant impact on
achievement of one or both of the coequal goals or the implementation of government-
sponsored flood control programs to reduce risks to people, property, and state interests
in the Delta.” (§ 85057.5, subd. (a); see §§ 85022, subd. (a), 85225.) The Act identifies
various actions that do not qualify as a covered action, including, among other things, a
regulatory action of a state agency, routine maintenance and operation of the CVP and
SWP, and routine maintenance and operation of a facility located, in whole or in part, in
the Delta, that is owned or operated by a local public agency. (§ 85057.5, subd. (b).)
Under the Delta Reform Act, state and local land use actions that qualify as
covered actions must be consistent with the Delta Plan. (§ 85022, subd. (a).) The Act
requires any state or local public agency that proposes to undertake a covered action to
prepare a written certification of consistency prior to initiating the implementation of that
covered action, with detailed findings as to whether the covered action is consistent with
the Delta Plan, and then to submit that certification to the Council. (§ 85225.) “Any
person who claims that a proposed covered action is inconsistent with the Delta Plan and,
as a result of that inconsistency, the action will have a significant adverse impact on the
achievement of one or both of the coequal goals . . . , may file an appeal with regard to a
18 Section 21065 of the Public Resources Code defines “ ‘[p]roject’ ” as “an activity
which may cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment, and which is any of the
following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An
activity undertaken by a person which is supported, in whole or in part, through contracts,
grants, subsidies, loans, or other forms of assistance from one or more public agencies.
[¶] (c) An activity that involves the issuance to a person of a lease, permit, license,
certificate, or other entitlement for use by one or more public agencies.”
25
certification of consistency submitted to the council.” (§ 85225.10, subd. (a).) If no
appeal is filed, the state or local public agency may proceed to implement the covered
action. (§ 85225.15.) If an appeal is filed, the Council must hold a hearing, unless it is
determined that the issue raised on appeal is not within the Council’s jurisdiction or does
not raise an appealable issue. (§ 85225.20.)
After a hearing on an appealed action, the Council must make “specific written
findings either denying the appeal or remanding the matter to the state or local public
agency for reconsideration of the covered action based on the finding that the
certification of consistency is not supported by substantial evidence in the record before
the state or local public agency that filed the certification. Upon remand, the state or
local agency may determine whether to proceed with the covered action. If the agency
decides to proceed with the action or with the action as modified to respond to the
findings of the council, the agency shall, prior to proceeding with the action, file a revised
certification of consistency that addresses each of the findings made by the council and
file that revised certification with the council.” (§ 85225.25.) The Legislature mandated
that the Council “adopt administrative procedures governing appeals,” which are exempt
from the rulemaking procedures of the APA. (§ 85225.30.)
Procedural Background
After the Delta Plan was adopted and the implementing regulatory policies were
approved as regulations, seven lawsuits were filed in three different counties by various
groups (e.g., water exporters [known generally as state (SWP) and federal (CVP) water
contractors], Delta-based water users, environmental organizations) challenging the
validity of the Delta Plan, the Delta Plan regulations, and the PEIR for the Delta Plan.
The challenges were primarily based on alleged violations of the Delta Reform Act, the
APA, and CEQA. The challenges to the Delta Plan and Delta Plan regulations were
largely predicated on the theory that the policies and recommendations in the Delta Plan
were inconsistent or in conflict with the Act, as they constituted unlawful overregulation
26
or under regulation by the Council. Each of the seven lawsuits sought a writ of mandate
commanding the Council to vacate and set aside the Delta Plan and the Delta Plan
regulations, and to rescind its certification of the PEIR. The lawsuits were eventually
coordinated into one action in Sacramento County Superior Court.
After extensive briefing and argument, the trial court issued written rulings in May
and July 2016, collectively rejecting most of the legal challenges to the Delta Plan
predicated on violations of the Delta Reform Act and the APA, including all claims of
overregulation. The court, however, concluded that the Delta Plan violated the Delta
Reform Act by failing to: (1) include quantified or otherwise measurable targets
associated with achieving certain Delta Plan objectives in violation of section 85308,
subdivision (b); (2) provide a flow policy that includes quantified or otherwise
measurable targets associated with restoring Delta flows and channels to support a
healthy estuary and other ecosystems in violation of section 85302, subdivision (e)(4);
and (3) promote options for new and improved infrastructure related to water conveyance
in the Delta, storage systems, and for the operation of both to achieve the coequal goals,
in violation of section 85304. The court further concluded that to the extent it had found
that the Delta Plan regulations failed to comply with the Delta Reform Act with regard to
quantified or otherwise measurable targets associated with achieving certain Delta Plan
objectives, the Delta Plan regulations also violated the APA.
As a consequence of these statutory violations, the trial court vacated and set aside
the Delta Plan and any applicable regulations, and ordered the Council to comply with
section 85308’s requirements by revising the Delta Plan and any applicable regulations to
include quantified or otherwise measurable targets associated with achieving certain
Delta Plan objectives; namely, reduced reliance on the Delta to meet California’s future
water supply needs, reduced environmental harm from invasive species, restoring more
natural flows, and increased water supply reliability. The court also directed the Council
to revise the Delta Plan and any applicable regulations to: (1) provide a flow policy that
27
includes quantified or otherwise measurable targets; and (2) promote options for water
conveyance and storage systems.
In response to the Council’s motion for clarification, the trial court issued a written
order stating that, because “the Delta Plan is required to be legally enforceable, so must
the section 85308 components.” The court therefore clarified that the Council must adopt
legally enforceable regulations that include quantified or otherwise measurable targets
associated with achieving reduced reliance on the Delta to meet California’s future water
supply needs, reduced environmental harm from invasive species, restoring more natural
flows, and increased water supply reliability. The court stated that it would not opine on
whether the Council should revise its existing flow policy; instead, the court explained
that “quantified or otherwise measurable targets must be part of a legally enforceable
plan,” and that “the Delta Plan fails to contain legally enforceable measurable targets
concerning Delta Flows as required by section 85308.” Finally, the court stated that the
language in the Delta Reform Act calling upon the Council to revise the Delta Plan to
“ ‘promote options for new and approved infrastructure relating to the water conveyance
in the Delta, storage systems, and for the operation of both to achieve the coequal goals’ ”
does not implicate a regulatory requirement. As such, the court left it to the Council’s
discretion whether or not to “ ‘promote options’ ” by regulation or recommendation.
The trial court did not reach the merits of the CEQA challenges, finding that there
was no longer a proposed project with a PEIR subject to review under CEQA. In
declining to address the CEQA claims, the court reasoned, “The Court does not believe
that piece-meal CEQA review is feasible under circumstances in which significant
[Delta] Plan revisions are required.” The court explained, “Because [the Council] must
comply with its CEQA obligations following completion of a revised Delta Plan,
Petitioners will have the opportunity to file CEQA challenges to this new certified
document. Consequently, no party is deprived of the opportunity to present challenges to
the [P]EIR at such time as a final project (Delta Plan) has been properly approved.” The
28
parties stipulated that all CEQA claims would be preserved regardless of the outcome of
any appeals. The parties further agreed that to the extent the Council relied on the PEIR
in the future, it was required to adopt new CEQA findings and recertify the PEIR along
with taking action on any other CEQA documentation it deemed appropriate, and that the
Council was required to file a Notice of Determination that reflected the full extent of its
reliance. These terms were included in the judgments entered by the trial court.
After judgment was entered in each of the seven coordinated cases, timely notices
of appeal were filed. Thereafter, due to a stipulated settlement, we dismissed the appeals
taken from the judgment entered in City of Stockton v. Delta Stewardship Council (San
Joaquin Super. Ct. case No. 39-2013-00298188-CU-WM-STK).
In October 2017, the trial court granted a motion for attorney fees and costs filed
by the petitioners in California Water Impact Network, et al. v. Delta Stewardship
Council (San Francisco Super. Ct. case No. CPF-13-513047). The petitioners in that case
were awarded $94,698.33, representing a substantial reduction from the amount
requested—$1,440,713. The petitioners timely appealed from the trial court’s fee order.
The Council filed a timely cross-appeal.
In April 2018, while the appeals were pending, the Council adopted amendments
to the Delta Plan (Delta Plan Amendments), and certified the PEIR for the Delta Plan
Amendments. The validity of the Delta Plan Amendments and the PEIR for the Delta
Plan Amendments is currently the subject of multiple new lawsuits.
In July 2019, we granted the request to consolidate the appeals filed in the fee case
(case No. C086199) with the appeals filed in the merits case (case No. C082944) for
purposes of argument and disposition.
29
DISCUSSION
THE MERITS CASE
1.0 General Principles
A regulation adopted by a state agency, like any agency action, comes to the court
with a presumption of validity. (Association of California Ins. Companies v. Jones
(2017) 2 Cal.5th 376, 389 (ACIC).) The standard of review governing a challenge to the
validity of an administrative regulation is found in Government Code section 11342.2,
which states: “Whenever by the express or implied terms of any statute a state agency
has authority to adopt regulations to implement, interpret, make specific or otherwise
carry out the provisions of the statute, no regulation adopted is valid or effective unless
consistent and not in conflict with the statute and reasonably necessary to effectuate the
purpose of the statute.” Thus, “the rulemaking authority of the agency is circumscribed
by the substantive provisions of the law governing the agency.” (Henning v. Division of
Occupational Saf. & Health (1990) 219 Cal.App.3d 747, 757.)
When a regulation is challenged on the ground that it is inconsistent or in conflict
with the governing statute, the issue of statutory construction is a question of law on
which a court exercises independent judgment. (Western States Petroleum Assn. v.
Board of Equalization (2013) 57 Cal.4th 401, 415 (Western States).) The task of the
reviewing court is to decide whether the regulation is within the scope of the authority
conferred by the Legislature; if it is not, it is void. (Engine Manufacturers Assn. v. State
Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034 (Engine Manufacturers).)
“Regulations that alter or amend the statute, or enlarge or impair its scope, are invalid.”
(ACIC, supra, 2 Cal.5th at p. 390.) An administrative agency, however, is not limited to
the exact provisions of a statute in adopting regulations to enforce its mandate; it is
authorized to adopt regulations to “ ‘ “ ‘ “fill up the details” ’ ” ’ ” of the statutory scheme
and to “ ‘ “elaborate the meaning of key statutory terms.” ’ ” (GMRI, Inc. v. California
Dept. of Tax & Fee Administration (2018) 21 Cal.App.5th 111, 125 (GMRI).) “In
30
determining whether an agency has incorrectly interpreted the statute it purports to
implement, a court gives weight to the agency’s construction. [Citation.] ‘Nevertheless,
the proper interpretation of a statute is ultimately the court’s responsibility.’ ” (Western
States, supra, 57 Cal.4th at pp. 415-416.) “ ‘The rule giving weight to contemporaneous
administrative construction is not evoked when the construction is incorrect.’ ” (GMRI,
at p. 124.)
“When a regulation is challenged on the ground that it is not ‘reasonably necessary
to effectuate the purpose of the statute,’ our inquiry is confined to whether the rule is
arbitrary, capricious, or without rational basis [citation] and whether substantial evidence
supports the agency’s determination that the rule is reasonably necessary [citation].”
(Western States, supra, 57 Cal.4th at p. 415.) The question of “reasonable necessity”
generally implicates the agency’s expertise; therefore it receives a much more deferential
standard of review. (Engine Manufacturers, supra, 231 Cal.App.4th at pp. 1034-1035.)
The party challenging a regulation has the burden to show its invalidity.
(California School Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th 530,
544.)
2.0 The Council
The Council contends that the trial court erred in concluding that the Delta Plan
violated the Delta Reform Act. However, as a threshold matter, it claims that the
controversy over whether the Delta Plan violated the Act in the ways identified by the
trial court has largely become moot due to the adoption of the Delta Plan Amendments.
According to the Council, the only issue that remains in controversy is whether the trial
court erred in determining that the Act requires it to adopt legally enforceable regulations
that include quantified or otherwise measurable targets (known as “performance measure
targets”) associated with achieving certain objectives of the Act. The Council maintains
that this issue has not become moot because the Delta Plan Amendments, like the original
Delta Plan, do not include performance measure targets as regulatory policies intended to
31
be legally enforceable regulations. Instead, the new performance measure targets in the
Delta Plan Amendments, while more specific as required by the trial court, are in the
form of recommendations.
We agree with the Council that the trial court erred in finding that the Delta
Reform Act requires it to adopt performance measure targets as legally enforceable
regulations. We also agree with the Council that the remaining controversy with respect
to the various deficiencies in the Delta Plan identified by the trial court has become moot
due to the adoption of the Delta Plan Amendments.
2.1 Performance Measure Targets
The Delta Reform Act requires that the Delta Plan include “quantified or
otherwise measurable targets associated with achieving the objectives of the Delta Plan.”
(§ 85308, subd. (b).) In the trial court, two groups of petitioners argued that the Delta
Plan was deficient because it failed to include such targets (i.e., performance measure
targets) concerning certain Delta Plan objectives. The trial court agreed, concluding that
the Delta Plan was invalid because it did not include any specific numeric goals that
would be evaluated at a date certain to determine compliance with or progress towards
achieving the following Delta Plan objectives: reduced reliance on the Delta to meet
California’s future water supply needs, reduced environmental harm from invasive
species, restoring more natural flows, and increased water supply reliability. The court
determined that the performance measure targets in the Delta Plan did not qualify as
quantified or otherwise measurable targets because the targets called for achieving
generalized nonnumeric goals, such as a “ ‘significant reduction,’ ” “ ‘progress toward,’ ”
and a “ ‘downward’ ” trend.
In concluding that the Delta Plan was invalid, the trial court explained: “At the
heart of the Court’s analysis in these cases is section 85308, titled ‘Requirements of the
Delta Plan.’ The first question is the degree to which this section informs the other
provisions of the Delta Reform Act. The section’s title suggests that the requirements it
32
lays out are the lens through which the Delta Plan must be viewed in determining Delta
Reform Act compliance. Section 85308 provides that the ‘Delta Plan shall meet all of the
following requirements. . .’ further bolstering a finding that the section provides a
checklist for Delta Plan content. (emphasis added.) Accordingly, the Court performs its
analysis of the Delta Plan with a view that a failure to include a section 85308 component
is a failure to comply with section 85308, and a violation of the Delta Reform Act.”
After pointing out that subdivision (b) of section 85308 requires the Delta Plan to
“ ‘include quantified or otherwise measurable targets associated with achieving the
objectives of the Delta Plan,’ ” the court relied on the Oxford Dictionary and the
Merriam-Webster Dictionary to determine that a “ ‘quantified’ ” or “ ‘otherwise
measurable’ ” target is a numeric amount or goal that is identified.19 The court then
reasoned that in order to “satisfy [section 85308’s] requirement of ‘quantified or
otherwise measurable targets’ . . . any analysis of the Delta Plan must be informed by
numeric goals that will be evaluated at a date certain to determine compliance or the
measure of progress that has been accomplished. This is also consistent with the
legislative direction that the Delta Plan be ‘legally enforceable.’ ”
Following the trial court’s ruling, the Council filed a motion seeking clarification
as to whether it was required to adopt, or revise, its performance measure targets as
regulations. In response, the trial court stated, in part, as follows: “Section 85001
requires the Delta Plan to be ‘legally enforceable.’ As section 85308 is the lens through
which the Court views the Delta Plan, and the Delta Plan is required to be legally
enforceable, so must the section 85308 components. Accordingly, the Court reiterates
19 The trial court relied on the Oxford Dictionary and the Merriam-Webster Dictionary
because the terms “quantified” and “otherwise measurable” are not defined in the Delta
Reform Act, and because it could not locate any case law providing a definition of either
term outside their ordinary meaning.
33
that [the Council] must revise the Delta Plan, and any applicable regulations to include
quantified or otherwise measurable targets associated with achieving reduced Delta
reliance, reduced environmental harm from invasive species, restoring more natural
flows, and increased water supply reliability. Consequently, to achieve Delta Reform Act
compliance with section 85308’s requirements for quantifiable or otherwise measurable
targets, [the Council] must adopt legally enforceable regulations. Merely providing
recommendations to comply with section 85308 is insufficient.”
We conclude the trial court erred in determining that the Delta Reform Act
requires the Council to adopt performance measure targets as legally enforceable
regulations. As relevant here, the Act requires the Council to adopt and implement a
legally enforceable Delta Plan built upon the principles of adaptive management—i.e., “a
framework and flexible decisionmaking process for ongoing knowledge acquisition,
monitoring, and evaluation leading to continuous improvement in management planning
and implementation . . . to achieve specified objectives” (§ 85052)— that uses best
available science to further the two coequal goals of “providing a more reliable water
supply for California and protecting, restoring, and enhancing the Delta ecosystem.”
(§ 85054; see also §§ 85001, subd. (c), 85300, subd. (a), 85302, subds. (a), (g), 85308,
subds. (a), (f).) The Legislature mandated that the Delta Plan “include performance
measurements that will enable the council to track progress in meeting the objectives of
the Delta Plan. The performance measurements shall include, but need not be limited to,
quantitative or otherwise measurable assessments of the status and trends in all of the
following: [¶] (a) The health of the Delta’s estuary and wetland ecosystem for
supporting viable populations of aquatic and terrestrial species, habitats, and processes,
including viable populations of Delta fisheries and other aquatic organisms. [¶] (b) The
reliability of California water supply imported from the Sacramento River or the San
Joaquin River watershed.” (§ 85211.) In the statutory provision titled “Requirements,”
the Act provides that the Delta Plan must include “quantified or otherwise measurable
34
targets associated with achieving the objectives of the Delta Plan.” (§ 85308, subd. (b).)
In addition, the Delta Plan must, “[w]here appropriate, utilize monitoring, data collection,
and analysis of actions sufficient to determine progress toward meeting the quantified
targets,” and “[d]escribe the methods by which the council shall measure progress toward
achieving the coequal goals.” (§ 85308, subds. (c), (d).)
The Delta Reform Act authorizes the Council “[t]o adopt regulations or guidelines
as needed to carry out the powers and duties identified in [the Act].” (§ 85210, subd. (i).)
It requires the Council to review the Delta Plan at least once every five years, and
authorizes the Council, in its discretion, to revise the Delta Plan as it “deems
appropriate.” (§ 85300, subd. (c).)
In our view, the Delta Reform Act cannot properly be construed as requiring the
Council to adopt performance measure targets as legally enforceable regulations.
Nothing in the Act expressly imposes such an obligation. Rather, the Act authorizes the
Council to adopt regulations “as needed” to carry out its powers and duties identified in
the Act. The Legislature’s stated purpose in requiring the Delta Plan to include
performance measurements was to enable the Council to track progress in meeting the
objectives of the Delta Plan. This purpose can be met without the adoption of
performance measure targets as legally enforceable regulations. While we recognize that
the Act requires the Council to adopt and implement a legally enforceable Delta Plan that
includes performance measure targets associated with achieving the objectives of the
Delta Plan, this does not compel the conclusion that the Council must adopt performance
measure targets as legally enforceable regulations. The Delta Plan is not rendered
unenforceable in the absence of such regulations.
This case involves a statutory scheme that identifies a complex problem
(sustainable management of the Delta’s resources), sets forth general goals and policy
objectives, identifies certain requirements that must be included in a plan adopted by the
Council to achieve the goals and objectives, and then broadly empowers the Council to
35
study the problem and to adopt appropriate regulations and guidelines as needed over
time for state and local agencies that will achieve the goals and objectives. Given the
language in the Act, it is clear to us that the Legislature chose to grant the Council broad
authority to apply its expertise in determining how to accomplish the Legislature’s goals
and objectives, including whether to adopt performance measure targets as legally
enforceable regulations. (See ACIC, supra, 2 Cal.5th at pp. 390-392 [Legislature confers
broad authority when it authorizes an agency to adopt regulations “ ‘as are necessary’ ”
or “ ‘as may be reasonably necessary’ ” to administer the statutory scheme]; California
Chamber of Commerce v. State Air Resources Bd. (2017) 10 Cal.App.5th 604, 622-623
[Legislature delegated broad authority when it authorized state agency to design
regulations, including distribution of emissions allowances where appropriate, to achieve
statewide greenhouse gas emissions limit].) Accordingly, we conclude the Act permits,
but does not require, the Council to adopt performance measure targets as legally
enforceable regulations. Had the Legislature intended a contrary result, it could easily
have said so in clear and certain terms. It did not. “When interpreting statutes, ‘we
follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of
the law . . . . “This court has no power to rewrite the statute so as to make it conform to a
presumed intention which is not expressed.” ’ ” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 59 (Equilon).)
2.2 Mootness
We agree with the Council that the remaining issues raised in its appeal are moot.
It is well settled that appellate courts will decide only actual controversies. (Cuenca v.
Cohen (2017) 8 Cal.App.5th 200, 216; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d
1, 10.) “ ‘An appellate court will not review questions which are moot and which are
only of academic importance.’ [Citations.] A question becomes moot when, pending an
appeal from a judgment of a trial court, events transpire that prevent the appellate court
from granting any effectual relief.” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413,
36
419.) The legal test for effective relief is whether there is a “prospect of a remedy that
can have a practical, tangible impact on the parties’ conduct or legal status.” (In re I.A.
(2011) 201 Cal.App.4th 1484, 1490.)
In support of its mootness contention, the Council has asked us to take judicial
notice of: (1) the Delta Plan Amendments, which were adopted in 2018 while the appeals
in this case were pending; and (2) court filings related to challenges to the Delta Plan
Amendments and the PEIR for the Delta Plan Amendments. We granted the Council’s
request.
Having reviewed the documents subject to judicial notice, we conclude that the
remaining controversy over whether the Delta Plan violated the Delta Reform Act in the
ways identified by the trial court has become moot. The documents show that the Delta
Plan Amendments specifically address the statutory violations found by the trial court. 20
The remaining issues raised in the Council’s appeal ask us to evaluate the validity of the
Council’s actions with respect to the original 2013 Delta Plan. However, the portions of
the original Delta Plan that were invalidated by the trial court have been superseded by
the adoption of the Delta Plan Amendments. Thus, even if we were to consider the
20 The petitioners in Central Delta Water Agency, et al. v. Delta Stewardship Council
(San Francisco Super. Ct. case No. CPF-13-513048) and California Water Impact
Network, et al. v. Delta Stewardship Council (San Francisco Super. Ct. case No. CPF-13-
513047) have filed a motion to strike portions of: (1) the Council’s opening brief, (2) the
Council’s first request for judicial notice, and (3) the declaration filed in support of the
request for judicial notice. The petitioners ask us to strike the portions of these
documents that contain substantive argument about the merits of the Delta Plan
Amendments and/or seek to have this court adjudicate the merits of the Delta Plan
Amendments in the first instance. We deny the petitioners’ motion to strike. We are
capable of simply ignoring any improper or irrelevant arguments. It is a better use of
judicial resources to focus on resolving the relevant issues raised by the Council rather
than spend time determining whether any portion of the challenged documents should be
stricken. (See Diaz-Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1481-1482
[irrelevant matters in briefs have no persuasive weight in determining an appeal].)
37
merits of the outstanding issues and found in favor of the Council, we would be unable to
grant any effectual relief. The invalidated portions of the original Delta Plan are no
longer operative. Accordingly, the remaining controversy over whether the Delta Plan
violated the Delta Reform Act in the ways identified by the trial court is moot. (See East
Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th
281, 305-306 [adoption of new general plan that eliminated a material condition mooted
appellate claim regarding the old general plan that contained this condition]; La Mirada
Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th
586, 588-590 (La Mirada) [adoption of an amended neighborhood plan rendered
challenge to exceptions that were allowed only in the old plan moot].) The validity of the
Delta Plan Amendments should be addressed by the trial court in the first instance.
We are not persuaded that an exception to the mootness doctrine applies. Various
parties21 contend that the remaining issues raised in the Council’s appeal must be
addressed because they present important questions of general public interest that are
likely to recur yet evade review. (See People v. Harrison (2013) 57 Cal.4th 1211, 1218
[courts have inherent discretion to resolve a moot issue that is one of broad public interest
that is likely to recur and may otherwise evade review].) We disagree. As noted above,
the Delta Plan Amendments include amendments that specifically address the
deficiencies in the original Delta Plan identified by the trial court, and the validity of
those amendments are currently the subject of multiple new lawsuits. There has been no
showing that the outstanding issues in the Council’s appeal concerning the trial court’s
21 The parties include the petitioners in North Coast Rivers Alliance, et al. v. Delta
Stewardship Council (Sacramento Super. Ct. case No. 34-2013-80001534), California
Water Impact Network, et al. v. Delta Stewardship Council (San Francisco Super. Ct.
case No. CPF-13-513047), Central Delta Water Agency, et al. v. Delta Stewardship
Council (San Francisco Super. Ct. case No. CPF-13-513048), and Save the California
Delta Alliance v. Delta Stewardship Council (San Francisco Super. Ct. case No. CPF-13-
513049).
38
invalidation of the original Delta Plan remain relevant after the adoption of the Delta Plan
Amendments. No party has demonstrated that these issues are likely to recur. Moreover,
no party contends that the Council’s actions in adopting the Delta Plan Amendments will
evade judicial review. Under these circumstances, we find no basis to exercise our
discretion to consider the moot issues. We reject the contention that the remaining issues
raised in the Council’s brief should be considered because there are “unresolved
questions” regarding attorney fees.22 (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d
129, 134 [“[i]t is settled that an appeal will not be retained solely to decide the question
of liability for costs”] (Paul).)
Finally, we must determine the proper disposition of the moot issues. Ordinarily
when a case becomes moot during the pendency of an appeal, the appellate court will not
proceed to formal judgment, but will dismiss the appeal. (Paul, supra, 62 Cal.2d at p.
134.) In some instances, however, courts have concluded it is appropriate instead to
reverse the judgment “solely for the purpose of restoring the matter to the jurisdiction of
the superior court, with directions to the court to dismiss the proceeding.” (Ibid.) In
Paul, for example, the court adopted this approach to avoid implicitly affirming a ruling
on the merits by dismissing the appeal as moot where a judgment ruling a state regulation
unconstitutional was mooted by promulgation of a new regulation. (Id. at pp. 131-132,
134; see La Mirada, supra, 2 Cal.App.5th at pp. 590-591 [although a reviewing court
ordinarily will dismiss the appeal if the case becomes moot, when the controversy is
rendered moot through “subsequent legislative or administrative action” the court may
adopt the alternative applied in Paul].) When the basis for the trial court’s judgment
22 The briefing in the consolidated fee case reveals that the resolution of that matter does
not require us to determine the merits of the issues that have become moot in the merits
case, that is, whether the Delta Plan violated the Delta Reform Act in the ways identified
by the trial court.
39
becomes nonexistent due to postjudgment acts or events, an appellate court should
“ ‘dispose of the case, not merely of the appellate proceeding which brought it here.’
[Citation.] That result can be achieved by reversing the judgment solely for the purpose
of restoring the matter to the jurisdiction of the superior court, with directions to the court
to dismiss the proceeding. [Citations.] Such a reversal, of course, does not imply
approval of a contrary judgment, but is merely a procedural step necessary to a proper
disposition of th[e] case.” (Paul, at pp. 134-135.)
As discussed above, the remaining issues raised in the Council’s brief as to
whether the original Delta Plan violated the Delta Reform Act in the ways identified by
the trial court has been rendered moot as a result of the Council’s adoption of the Delta
Plan Amendments, i.e., subsequent administrative action. Because we have declined to
reach the merits of these issues, we will follow the procedure described in Paul and
reverse the judgments in the relevant underlying cases23 for the limited purpose of
returning jurisdiction to the trial court so it can dismiss the moot portions of those cases.
“ ‘ “Where an appeal is disposed of upon the ground of mootness and without reaching
the merits, in order to avoid ambiguity, the preferable procedure is to reverse the
judgment with directions to the trial court to dismiss the action for having become moot
prior to its final determination on appeal. [Citations.]” [Citations.]’ ” (Giles v. Horn
(2002) 100 Cal.App.4th 206, 229 [reversal with directions to dismiss portion of judgment
that had become moot]; see Coalition for a Sustainable Future in Yucaipa v. City of
Yucaipa (2011) 198 Cal.App.4th 939, 941, 944-945 [following Paul where the basis for
23 The four cases are: North Coast Rivers Alliance, et al. v. Delta Stewardship Council
(Sacramento Super. Ct. case No. 34-2013-80001534); California Water Impact Network,
et al. v. Delta Stewardship Council (San Francisco Super. Ct. case No. CPF-13-513047);
Central Delta Water Agency, et al. v. Delta Stewardship Council (San Francisco Super.
Ct. case No. CPF-13-513048); and Save the California Delta Alliance v. Delta
Stewardship Council (San Francisco Super. Ct. case No. CPF-13-513049)
40
the judgment had disappeared (the project) before the case could be fully litigated].) This
reversal does not imply that the judgments were erroneous on the merits, but is solely for
the purpose of returning jurisdiction to the trial court by vacating the otherwise final
judgments solely on the ground of mootness. In following this procedure, we will
appropriately avoid affirming the judgments by implication. (Coalition for a Sustainable
Future, at pp. 944-945.)
3.0 Federal and State Water Contractors
The federal and state water contractors (hereafter Water Contractors) are local
public agencies that hold water supply contracts under the CVP or SWP. Pursuant to
these contracts, the Water Contractors divert water from the Delta and convey water
previously stored in upstream reservoirs through the Delta, primarily for urban and
agricultural uses in regions south of the Delta. Collectively, they deliver water to more
than 25 million California residents and nearly three million acres of agricultural lands. 24
The Water Contractors filed separate opening briefs but have joined in each other’s
contentions on appeal and have filed joint respondents’ briefs and reply briefs.
Accordingly, we address their contentions together.
24 The Water Contractors do not hold water rights. Rather, the U.S. Department of
Reclamation holds all water rights to CVP water and the Department of Water Resources
holds all water rights to SWP water. (United States v. State Water Resources Control Bd.
(1986) 182 Cal.App.3d 82, 106; see Westlands Water Dist. v. United States (E.D. Cal.
2001) 153 F.Supp.2d 1133, 1149 [“The United States holds all water rights to CVP
water”].) The Council has asked us to take judicial notice of the amicus curie brief filed
by the Department of Water Resources in the trial court for the limited purpose of
showing that, in the department’s view, the Delta Plan complied with the Delta Reform
Act and the petitions challenging the Delta Plan should be denied. That request is denied
because the department’s amicus curie brief is not relevant to the resolution of any issue
before this court. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th
415, 422, fn. 2 (Shamrock Foods) [“any matter to be judicially noticed must be relevant
to a material issue”].)
41
The Water Contractors contend that the trial court erred in failing to invalidate the
Delta Plan’s Water Resources Policy 1 (WR P1)—titled, “Reduce Reliance on the Delta
Through Improved Regional Water Self-Reliance.” According to the Water Contractors,
WR P1 is unlawful because it: (1) exceeds the geographic scope of the Council’s
regulatory authority under the Delta Reform Act; (2) exceeds the Council’s regulatory
authority under the Act by regulating water rights; and (3) conflicts with the Act by
frustrating rather than promoting the coequal goal of providing a more reliable water
supply for the state. The Water Contractors additionally contend the trial court erred in
determining that the Delta Plan’s appeal process regarding covered actions is valid.
Finally, the Water Contractors contend the trial court erred in concluding that the Council
has the authority to adopt regulations to promote options for water conveyance in the
Delta and storage systems. They maintain that the Legislature did not expressly or
implicitly authorize or require the Council to adopt regulations in this regard. We find no
merit in these contentions.
3.1 Validity of WR P1
Water Resources Policy 1, which is codified at section 5003 of title 23 of the
California Code of Regulations, provides:
“(a) Water shall not be exported from, transferred through, or used in the Delta if
all of the following apply:
“(1) One or more water suppliers that would receive water as a result of the export,
transfer, or use have failed to adequately contribute to reduced reliance on the Delta and
improved regional self-reliance consistent with all of the requirements listed in paragraph
(1) of subsection (c);
“(2) That failure has significantly caused the need for the export, transfer, or use;
and
42
“(3) The export, transfer, or use would have a significant adverse environmental
impact in the Delta.
“(b) For purposes of Water Code section 85057.5 [subdivision] (a)(3) and section
5001 [subdivision] (j)(1)(E) of this Chapter, this policy covers a proposed action to
export water from, transfer water through, or use water in the Delta, but does not cover
any such action unless one or more water suppliers would receive water as a result of the
proposed action.
“(c)(1) Water suppliers that have done all of the following are contributing to
reduced reliance on the Delta and improved regional self-reliance and are therefore
consistent with this policy:
“(A) Completed a current Urban or Agricultural Water Management Plan (Plan)
which has been reviewed by the California Department of Water Resources for
compliance with the applicable requirements of Water Code Division 6, Parts 2.55, 2.6,
and 2.8;
“(B) Identified, evaluated, and commenced implementation, consistent with the
implementation schedule set forth in the Plan, of all programs and projects included in
the Plan that are locally cost effective and technically feasible which reduce reliance on
the Delta; and
“(C) Included in the Plan, commencing in 2015, the expected outcome for
measurable reduction in Delta reliance and improvement in regional self-reliance. The
expected outcome for measurable reduction in Delta reliance and improvement in
regional self-reliance shall be reported in the Plan as the reduction in the amount of water
used, or in the percentage of water used, from the Delta watershed. For the purposes of
reporting, water efficiency is considered a new source of water supply, consistent with
Water Code section 1011(a).
“(2) Programs and projects that reduce reliance could include, but are not limited
to, improvements in water use efficiency, water recycling, stormwater capture and use,
43
advanced water technologies, conjunctive use projects, local and regional water supply
and storage projects, and improved regional coordination of local and regional water
supply efforts.” (Cal. Code Regs., tit. 23, § 5003.)
3.1.1 Geographic Scope of the Council’s Regulatory Authority
We reject the Water Contractors’ initial contention that WR P1 is unlawful
because it exceeds the geographic scope of the Council’s regulatory authority under the
Delta Reform Act. This argument is predicated on the theory that requiring local water
supply agencies—many of which are located hundreds of miles from the Delta—to
undertake actions outside the Delta that adequately contribute to reduced reliance on the
Delta and improved regional self-reliance for water supply constitutes unlawful
regulatory action in excess of the Council’s authority. According to the Water
Contractors, WR P1 violates the Act because the Council’s regulatory authority is limited
to land use actions that occur within the boundaries of the Delta and Suisun Marsh. We
disagree.
Under the Delta Reform Act, a state or local land use action that qualifies as a
“covered action” must be consistent with the Act. (§ 85022, subd. (a).) To qualify as a
“covered action” subject to the regulatory authority of the Council, a land use action must
meet certain conditions, including “occur, in whole or in part, within the boundaries of
the Delta or Suisun Marsh” (§ 85057.5, subd. (a)(1)), “be carried out, approved, or
funded by the state or a local public agency” (§ 85057.5, subd. (a)(2)), be “covered by
one or more provisions of the Delta Plan” (§ 85057.5, subd. (a)(3)), and “have a
significant impact on achievement of one or both of the coequal goals” (§ 85057.5, subd.
(a)(4)).
In enacting the Delta Reform Act, the Legislature expressly found that the coequal
goal of “[p]roviding a more reliable water supply for the state involves implementation of
water use efficiency and conservation projects, wastewater reclamation projects,
desalination, and new and improved infrastructure, including water storage and Delta
44
conveyance facilities.” (§ 85004, subd. (b).) The Act provides that it is the policy of
California to establish a governance structure with the authority and responsibility to
achieve various objectives, which the Legislature declared are “inherent in the coequal
goals for management of the Delta.” (§ 85020.) As particularly relevant here, these
objectives include managing the Delta’s water and environmental resources and the water
resources of the state over the long term, promoting statewide water conservation, water
use efficiency, and sustainable water use, and expanding statewide water storage.
(§ 85020, subds. (a), (c), (d), (e), & (f).) The Act further provides that it is the policy of
California “to reduce reliance on the Delta in meeting California’s future water supply
needs through a statewide strategy of investing in improved regional supplies,
conservation, and water use efficiency.” (§ 85021.) Toward this end, the Legislature
mandated that “[e]ach region that depends on water from the Delta watershed shall
improve its regional self-reliance for water through investment in water use efficiency,
water recycling, advanced water technologies, local and regional water supply projects,
and improved regional coordination of local and regional water supply efforts.”
(§ 85021.)
The Delta Reform Act mandates that the Delta Plan “promote statewide water
conservation, water use efficiency, and sustainable use of water,” (§ 85303) and include
measures to promote a more reliable water supply that address all of the following: “(1)
Meeting the needs for reasonable and beneficial uses of water”; “(2) Sustaining the
economic vitality of the state”; and “(3) Improving water quality to protect human health
and the environment.” (§ 85302, subd. (d)(1)-(3).) As policy foundations, the Act states:
“The longstanding constitutional principle of reasonable use and the public trust doctrine
shall be the foundation of state water management policy and are particularly important
and applicable to the Delta.” (§ 85023.)
In our view, WR P1 clearly falls within the scope of the regulatory authority
delegated to the Council under the Delta Reform Act. By its express terms, the policy
45
regulates land use actions that will occur within the boundaries of the Delta. It prohibits
water from being exported from, transferred through, or used in the Delta if: (1) the
water suppliers that would receive water as a result of these activities have failed to
adequately contribute to the Act’s stated policy of reducing reliance on the Delta through
improved regional self-reliance for water supply; (2) that failure has significantly caused
the need for the export, transfer, or use; and (3) the export, transfer, or use would have a
significant adverse environmental impact in the Delta. (Cal. Code Regs., tit. 23, § 5003.)
WR P1 is consistent with achieving the coequal goals of the Act, specific policy
objectives articulated by the Legislature, including objectives declared to be inherent in
the coequal goals, and the constitutional principle of reasonable use and the public trust
doctrine. That WR P1 requires water suppliers to undertake certain actions outside the
geographical boundaries of the Delta in order to receive water exported from, transferred
through, or used in the Delta does not render the policy in excess of the Council’s
regulatory authority. Even if these actions are considered part of the regulated activity,
the Act requires only that a covered action “occur, in whole or in part, within the
boundaries of the Delta or Suisun Marsh.” (§ 85057.5, subd. (a)(1).) Moreover, the Act
specifically authorizes the Council to adopt and implement a legally enforceable Delta
Plan that furthers the coequal goal of providing a more reliable water supply for
California, which includes reduced reliance on the Delta in meeting California’s future
water supply needs through a statewide strategy of investing in improved regional
supplies, conservation, and water use efficiency. To achieve the objective of reduced
reliance, the Act mandates improved regional self-reliance from each region that depends
on water from the Delta watershed, which includes regions outside the geographical
boundaries of the Delta. The Water Contractors, for their part, have not pointed to any
language in the Act convincing us that their statutory interpretation is correct. Had the
Legislature intended the Water Contractors’ more limited view of the Council’s
regulatory authority, it could have easily so stated.
46
We find no merit in the Water Contractors’ suggestion that WR P1 is in excess of
the Council’s authority because it is “implausible” the Legislature “anoint[ed]” the
Council as arbiter of local water supply management given “the robust legislation already
in place” governing such management—Division 6 of the Water Code (§§ 10000-12999),
titled, “Conservation, Development, and Utilization of State Water Resources.” It is a
settled principle of statutory construction that the Legislature “ ‘is deemed to be aware of
statutes . . . already in existence, and to have enacted . . . a statute in light thereof.
[Citation.]’ ” (People v. Yartz (2005) 37 Cal.4th 529, 538.) Even a cursory review of the
statutory scheme and the record confirms that the Legislature was well aware of existing
statutory law governing the management of water resources and enacted the Delta
Reform Act in light thereof with the intent of granting the Council broad regulatory
authority to achieve the coequal goals, (see, e.g., §§ 85001, subds. (a), (c), 85020, 85031,
85032, 85210, subd. (i), 85300), which includes the authority to adopt WR P1. Indeed, at
the outset of the Act, the Legislature expressly found and declared that the “Delta
watershed and California’s water infrastructure are in crisis and existing Delta policies
are not sustainable. Resolving the crisis requires fundamental reorganization of the
state’s management of Delta watershed resources.” (§ 85001, subd. (a), italics added.)
The Legislature acknowledged that the Act was enacted in response to the Strategic Plan
developed by the Task Force (§ 85001, subd. (b)), which found that the Delta is in crisis
and specifically concluded: “Compounding the crisis is that the current governance
structure for water and the Delta has failed. More than 200 federal, state, and local
government agencies have some jurisdiction in the Delta. Everyone is involved but no
one is [in] charge. Moreover, existing fragmentation of policies and projects guarantees
continued failure in restoring the Delta ecosystem and in ensuring reliable water supplies
for California.” The Strategic Plan therefore recommended that the Legislature create a
new governance structure with needed legal authority and competencies to achieve the
coequal goals of restoring the Delta’s ecosystem and creating a more reliable water
47
supply for California. The Legislature followed this recommendation. (See, e.g.,
§§ 85001, subd. (c), 85020, subds. (a)-(h), 85210, subd. (i).)
3.1.2 The Council’s Regulatory Authority Over Water Rights
We also reject the Water Contractors’ contention that WR P1 is unlawful because
the Council has no regulatory authority over water rights under the Delta Reform Act.
According to the Water Contractors, the Water Board is the only administrative agency
authorized to regulate water rights. We disagree.
Resolution of the statutory question before us does not require an extended
discussion of California water law principles. It suffices to say that water use by those
holding water rights in California “ ‘is limited by the “reasonable use” doctrine, which
forbids the waste of water or its unreasonable use.’ ” (Siskiyou County Farm Bureau v.
Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 423.) In addition, the public
trust doctrine vests the state with authority to act as trustee of all waters of the state for
the benefit of the people to ensure that water resources are put to beneficial use to the
fullest extent of which they are capable, and to prevent waste or unreasonable use of
water. (Id. at pp. 423-424.)
The Legislature has granted the Water Board “ ‘broad authority to control and
condition water use, insuring utilization consistent with public interest.’ [Citation.] Its
enabling statute [(section 174)] describes the Board’s function as ‘to provide for the
orderly and efficient administration of the water resources of the state’ and grants it the
power to ‘exercise the adjudicatory and regulatory functions of the state in the field of
water resources.’ [Citation.] In that role, the Board is granted ‘any powers . . . that may
be necessary or convenient for the exercise of its duties authorized by law’ [citation],
including the power to ‘make such reasonable rules and regulations as it may from time
to time deem advisable . . . .’ [Citation.] Among its other functions, ‘the . . . board shall
take all appropriate proceedings or actions before executive, legislative, or judicial
agencies to prevent waste, unreasonable use, unreasonable method of use, or
48
unreasonable method of diversion of water in this state.’ [Citation.] The Board’s
authority to prevent unreasonable or wasteful use of water extends to all users, regardless
of the basis under which the users’ water rights are held.” (Light v. State Water
Resources Control Bd. (2014) 226 Cal.App.4th 1463, 1481-1482.)
In support of their contention that the Council has no regulatory authority over
water rights, the Water Contractors rely on several “savings” clauses set forth in sections
85031 and 85032. As relevant here, section 85031, subdivision (a) provides: “This
division [(i.e., the Delta Reform Act)] does not diminish, impair, or otherwise affect in
any manner whatsoever any . . . water rights protections . . . provided under the law.”
(§ 85031, subd. (a).) Subsection (d) of the same section provides: “Unless otherwise
expressly provided, nothing in [the Act] supersedes, reduces, or otherwise affects existing
legal protections, both procedural and substantive, relating to the state board’s regulation
of diversion and use of water . . . . Nothing in [the Act] expands or otherwise alters the
board’s existing authority to regulate the diversion and use of water or the courts’
existing concurrent jurisdiction over California water rights.” (§ 85031, subd. (d).)
Section 85032, subdivision (i) provides that the Act does not affect “[a]ny water right.”
(§ 85032, subd. (i).)
Contrary to the Water Contractors’ contention, nothing in the statutory provisions
on which they rely establishes that the Council lacks regulatory authority over water
rights under the Delta Reform Act. When considered in its entirety, the statutory scheme
makes clear that the Council has such authority. The Legislature’s stated intent in
enacting the Act was to “provide for the sustainable management of the . . . Delta
ecosystem, to provide for a more reliable water supply for the state, to protect and
enhance the quality of water supply from the Delta, and to establish a governance
structure that will direct efforts across state agencies to develop a legally enforceable
Delta Plan,” (§ 85001, italics added) which is defined as a comprehensive, long-term
management plan for the Delta as adopted by the Council (§ 85059) that furthers the
49
coequal goals (§§ 85054, 85300, subd. (a)). The Legislature expressly declared that it is
the policy of California to “[e]stablish a new governance structure with the authority,
responsibility, and accountability” to achieve the following objectives, which are
inherent in the coequal goals for management of the Delta: “(a) Manage the Delta’s
water and environmental resources and the water resources of the state over the long
term. [¶] (b) Protect and enhance the unique cultural, recreational, and agricultural
values of the California Delta as an evolving place. [¶] (c) Restore the Delta ecosystem,
including its fisheries and wildlife, as the heart of a healthy estuary and wetland
ecosystem. [¶] (d) Promote statewide water conservation, water use efficiency, and
sustainable water use. [¶] (e) Improve water quality to protect human health and the
environment consistent with achieving water quality objectives in the Delta. [¶] (f)
Improve the water conveyance system and expand statewide water storage. (§ 85020.)
As policy foundations, the Delta Reform Act provides: “The longstanding constitutional
principle of reasonable use and the public trust doctrine shall be the foundation of state
water management policy and are particularly important and applicable to the Delta.”
(§ 85023.)
The Legislature directed the Council to “establish and oversee a committee of
agencies responsible for implementing the Delta Plan,” and mandated that “[e]ach agency
shall coordinate its actions pursuant to the Delta Plan with the council and the other
relevant agencies.” (§ 85204.) The Legislature further mandated that the Council consult
with state agencies with responsibilities in the Delta in developing the Delta Plan (e.g.,
Water Board), and that, upon the request of the Council, such state agencies must
cooperate with the Council in developing the Delta Plan. (§ 85300, subd. (b).) The
Legislature authorized the Council to adopt regulations as needed to carry out its powers
and duties identified in the Act. (§ 85210, subd. (i).)
We conclude that the Legislature’s delegation of authority to the Council under the
Delta Reform Act includes the authority to regulate water use by those holding water
50
rights in furtherance of the Council’s duty to adopt and implement a legally enforceable
Delta Plan that furthers the coequal goals in a manner consistent with the reasonable use
and public trust doctrines. The scope of this regulatory authority is limited under the Act
to state and local land use actions that qualify as covered actions. (§ 85022, subd. (a); see
§ 85057.5, subd. (a) [defining covered actions, which are geographically limited to plans,
programs, or projects that will occur, in whole or part, within the boundaries of the Delta
or Suisun Marsh].) That the Council’s authority to regulate water use under the Act
overlaps with the Water Board’s regulatory jurisdiction is not a basis to invalidate WR
P1. (See Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th
921, 932-936 [concluding that both the Water Board and the Department of Forestry
could regulate water quality impacts of proposed timber harvest, noting that “overlapping
jurisdiction” is “an uncontroversial concept under our law even absent a savings
clause”].) Indeed, the statutory scheme reflects that the Legislature intended an overlap
in regulatory authority and for the Council to work and coordinate its actions with all
agencies having responsibilities in the Delta, including the Water Board.
Because the relevant statutory language is clear and unambiguous, we need not
consider the legislative history cited by the Water Contractors in resolving this claim.
(People v. Valencia (2017) 3 Cal.5th 347, 357.) But even if we were to consider the
legislative history, we find it does not support the conclusion that the Council has no
regulatory authority over water rights under the Delta Reform Act.
3.1.3 Whether WR P1 Conflicts with the Delta Reform Act
Finally, we reject the Water Contractors’ contention that WR P1 is unlawful
because it conflicts with the Delta Reform Act by frustrating rather than promoting the
coequal goal of providing a more reliable water supply for California. According to the
Water Contractors, prohibiting water supply covered actions and water transfers through
the Delta diminishes water supply reliability by denying access to otherwise available
Delta water supplies. We find no merit in this contention.
51
As we concluded above, WR P1 is consistent with the Delta Reform Act and
furthers the coequal goal of providing a more reliable water supply for California. This
conclusion is supported by evidence in the record. Prior to the Legislature’s enactment of
the Act, the Strategic Plan determined that creating a more reliable water supply for
California would require, among other things, increased storage, Californians to become
less dependent on water supply from the Delta, statewide efforts to conserve water, and
more responsible use of existing supplies. The Strategic Plan concluded that
conservation, water system efficiency, and promoting regional self-sufficiency are among
the actions that are most likely to improve California’s water future in the near term. The
Water Contractors have failed to provide legal analysis demonstrating that WR P1
conflicts with any provision of the Act.25 Moreover, as in the trial court, they have failed
to identify evidence in the record showing that WR P1 will not further a more reliable
water supply for California.
3.2 The Delta Plan’s Appeal Process
The Water Contractors contend that the Delta Plan’s procedures governing appeals
of covered actions, which allow for multiple appeals and remands of an agency’s
certification of consistency with the Delta Plan, is in excess of the regulatory authority
25 We reject the Water Contractors’ contention that the reduced reliance policy set forth
in section 85021 does not support WR P1. WR P1 is consistent with the policy objective
and the means by which to achieve that objective articulated by the Legislature in section
85021. Because we find the language of this statutory provision to be clear and
unambiguous, including the term “future” in the context of reducing “reliance on the
Delta in meeting California’s future water supply needs,” we need not consider the
legislative history cited by the Water Contractors in support of their position. (Nolan v.
City of Anaheim (2004) 33 Cal.4th 335, 340.) We note the Council has asked us to take
judicial notice of legislative history related to this issue and the definition of “future.”
That request is denied; the legislative history of section 85021 and the definition of
“future” as used in that provision are not relevant to the resolution of any issue before the
court. (Shamrock Foods, supra, 24 Cal.4th at p. 422, fn. 2 [“any matter to be judicially
noticed must be relevant to a material issue”].)
52
delegated to the Council under the Delta Reform Act. According to the Water
Contractors, the plain language of section 85225.25 limits the Council’s appellate review
of a covered action to a single appeal of a certification of consistency and vests the
certifying agency with the discretion to proceed with a covered action, even if the
Council has found insufficient evidence for the initial certification, so long as the agency
files a revised certification addressing the Council’s findings. The Water Contractors
maintain that section 85225.25 “expressly leaves the ultimate decision on how and
whether to implement the covered action with the certifying agency.” We disagree.
“ ‘ “A fundamental rule of statutory construction is that a court should ascertain
the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In
construing a statute, our first task is to look to the language of the statute itself.
[Citation.] When the language is clear and there is no uncertainty as to the legislative
intent, we look no further and simply enforce the statute according to its terms.
[Citations.] [¶] Additionally, however, we must consider the [statutory language] in the
context of the entire statute [citation] and the statutory scheme of which it is a part. ‘We
are required to give effect to statutes “according to the usual, ordinary import of the
language employed in framing them.” [Citations.]’ [Citations.] ‘ “If possible,
significance should be given to every word, phrase, sentence and part of an act in
pursuance of the legislative purpose.” [Citation.] . . . “When used in a statute [words]
must be construed in context, keeping in mind the nature and obvious purpose of the
statute where they appear.” [Citations.] Moreover, the various parts of a statutory
enactment must be harmonized by considering the particular clause or section in the
context of the statutory framework as a whole. [Citations.]’ ” ’ ” (Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 743.) “Ultimately we choose the construction that
comports most closely with the apparent intent of the lawmakers, with a view to
promoting rather than defeating the general purpose of the statute. [Citations.] Any
53
interpretation that would lead to absurd consequences is to be avoided.” (Allen v. Sully-
Miller Contracting Co. (2002) 28 Cal.4th 222, 227.)
Under the Delta Reform Act, state and local land use actions that qualify as
“ ‘covered actions’ ” under section 85057.5 must be consistent with the Delta Plan.
(§ 85022, subd. (a).) The Act requires any state or local public agency that proposes to
undertake a covered action to prepare a written certification of consistency prior to
initiating the implementation of that covered action, with detailed findings as to whether
the covered action is consistent with the Delta Plan, and then to submit that certification
to the Council. (§ 85225.) Any person may challenge a proposed covered action as
inconsistent with the Delta Plan, in that it will have a significant adverse impact on
achievement of one or both of the coequal goals, by filing an appeal with regard to a
certification of consistency submitted to the Council. (§ 85225.10, subd. (a).) If no
appeal is filed, the state or local public agency may proceed to implement the covered
action. (§ 85225.15.) If an appeal is filed, the Council must hold a hearing, unless it is
determined that the issue raised on appeal is not within the Council’s jurisdiction or does
not raise an appealable issue. (§ 85225.20.)
After a hearing on an appealed action, the Council is required to make “specific
written findings either denying the appeal or remanding the matter to the state or local
public agency for reconsideration of the covered action based on the finding that the
certification of consistency is not supported by substantial evidence in the record before
the state or local public agency that filed the certification. Upon remand, the state or
local agency may determine whether to proceed with the covered action. If the agency
decides to proceed with the action or with the action as modified to respond to the
findings of the council, the agency shall, prior to proceeding with the action, file a revised
certification of consistency that addresses each of the findings made by the council and
file that revised certification with the council.” (§ 85225.25.) The Legislature mandated
that the Council adopt administrative procedures governing appeals. (§ 85225.30.)
54
In Appendix D—titled, “Administrative Procedures Governing Appeals, Statutory
Provisions Requiring Other Consistency Reviews, and Other Forms of Review or
Evaluation by the Council”—the Delta Plan sets forth a detailed description of the
administrative procedures governing appeals of certifications of consistency submitted to
the Council by a state or local public agency. As relevant here, the Delta Plan provides
that any person, including any member of the Council or its executive officer, may file an
appeal with regard to a certification of consistency submitted to the Council, claiming
that a proposed covered action is inconsistent with the Delta Plan and, as a result of that
inconsistency, that action will have a significant adverse impact on the achievement of
one or both of the goals of the Act. The Delta Plan further provides that the Council must
“make its decision on the appeal within 60 days of hearing the appeal, and [must] make
specific written findings defining the covered action under review and either denying the
appeal or remanding the matter to the state or local public agency for reconsideration of
the covered action based on the finding that the certification of consistency is not
supported by substantial evidence in the record before the state or local public agency
that filed the certification.” Finally, the Delta Plan provides that, “No covered action
which is the subject of an appeal shall be implemented unless one of the following
conditions has been met: [¶] a) The council has denied the appeal; [¶] b) The public
agency has pursuant to Water Code section 85225.[2]5 decided to proceed with the action
as proposed or modified and has filed with the council a revised certification of
consistency addressing each of the findings made by the council, 30 days has elapsed and
no person has appealed the revised certification; or [¶] c) The council or its executive
officer has dismissed the appeal for one or both of the following reasons: [¶] 1. The
appellant has failed to provide information in her possession or under her control within
the time requested or [¶] 2. The issue raised is not within the council’s jurisdiction or
fails to raise an appealable issue.” The Delta Plan explains, “If the covered action is
55
found to be inconsistent, the project may not proceed until it is revised so that it is
consistent with the Delta Plan.”
We find no merit in the Water Contractors’ contention that the Delta Plan’s appeal
process violates the Delta Reform Act by permitting an appeal to be taken from a revised
certification of consistency submitted to the Council. The Water Contractors’
interpretation of section 85225.25 is not supported by the plain language of the statute,
which provides that, when an appealed action is remanded to the state or local agency for
reconsideration of the covered action based on the Council’s determination that the
certification of consistency is not supported by substantial evidence, “the state or local
agency may determine whether to proceed with the covered action. If the agency decides
to proceed with the action or with the action as modified to respond to the findings of the
council, the agency shall, prior to proceeding with the action, file a revised certification
of consistency that addresses each of the findings made by the council and file that
revised certification with the council.” (§ 85225.25.) The Water Contractors construe
this language as prohibiting any appeal challenging a revised certification of consistency
submitted to the Council. In doing so, they violate the “cardinal rule” of statutory
construction that courts must not add statutory language not included therein. (Security
Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998; see Code Civ. Proc, § 1858
[“In the construction of a statute or instrument, the office of the Judge is simply to
ascertain and declare what is in terms or in substance contained therein, not to insert what
has been omitted, or to omit what has been inserted.”].) By its express terms, the Act
permits any person who claims that a proposed covered action is inconsistent with the
Delta Plan to file an appeal challenging a certification of consistency submitted to the
Council. (§ 85225.10, subd. (a).) The Act makes no exception when a revised
certification of consistency is submitted to the Council. Surely, if the Legislature had
intended to prohibit an appeal under such circumstances, it would have simply said so. It
did not. The Water Contractors’ reliance on legislative history to support their
56
interpretation is misplaced. Where, as here, “ ‘there is no ambiguity or uncertainty in the
language, the Legislature is presumed to have meant what it said, and we need not resort
to legislative history to determine the statute’s true meaning.’ ” (People v. Skiles (2011)
51 Cal.4th 1178, 1185; Equilon, supra, 29 Cal.4th at p. 61 [“Where . . . legislative intent
is expressed in unambiguous terms, we must treat the statutory language as conclusive;
‘no resort to extrinsic aids is necessary or proper.’ ”].)
We note that the Water Contractors’ interpretation of the Delta Reform Act must
also be rejected because construing the statute in the manner they urge would defeat the
Legislature’s stated intent that state and local land use actions that qualify as covered
actions must be consistent with the Delta Plan, (§ 85022, subd. (a)) and that the Delta
Plan be legally enforceable (§ 85001, subd. (c)). The Legislature established a specific
process by which the Council ensures that proposed covered actions are consistent (i.e.,
comply) with the Delta Plan. (§§ 85225-85225.25.) If we were to adopt the Water
Contractors’ construction of the Act, the Council would lack the authority to enforce
compliance with the Act under certain circumstances. Such a construction does not
comport with the Legislature’s stated intent. Therefore, we cannot conclude that the
Legislature intended to prohibit the filing of an appeal challenging a state or local
agency’s submission of a revised certification of consistency.
Finally, we reject the Water Contractors’ assertion that their interpretation of the
Act “does not mean the consistency requirement is unenforceable” because “[a] party
opposed to a covered action may still challenge a revised consistency determination in
the courts.” The Water Contractors cite no statutory text or otherwise provide any
meaningful legal analysis or authority supporting their assertion. We therefore deem this
point to be without foundation, requiring no further discussion. (Central Valley Gas
Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 694-695.)
57
3.3 The Council’s Regulatory Authority Regarding Water Conveyance in the
Delta and Storage Systems
Section 85304 provides: “The Delta Plan shall promote options for new and
improved infrastructure relating to the water conveyance in the Delta, storage systems,
and for the operation of both to achieve the coequal goals.” The Delta Plan explained
that the Council did not adopt any recommendations or policies related to these
requirements due to the ongoing development of the Bay Delta Conservation Plan
(BDCP), a major project considering large-scale improvements in water conveyance and
large-scale ecosystem restoration in the Delta, which must be incorporated into the Delta
Plan if it meets certain statutory requirements set forth in section 85320. The Delta Plan
stated that “[t]he BDCP process is considering a range of options for conveying water
through or around the Delta,” and that the BDCP “is being developed to contribute to
improving water supply reliability by modifying Delta conveyance facilities to create a
more natural flow pattern in the Delta and allow for water exports when hydrologic
conditions result in the availability of sufficient water, consistent with the requirements
of State and federal law and the terms and conditions of SWP and CVP water delivery
contracts, and other existing applicable agreements.” The Delta Plan noted that the
BDCP process was not complete at the time it was published, and concluded that the
agencies pursuing the BDCP were in the best position to develop possible conveyance
options, evaluate the options, and decide on the best one. The Delta Plan, however, noted
that the Council intended to revisit the issue of conveyance to determine how to facilitate
improved conveyance facilities if the BDCP process was not completed by January 1,
2016.
The trial court found that the Delta Plan violated the Delta Reform Act because it
did not include any regulatory policies or recommendations regarding conveyance
options or storage systems in violation of section 85304. The court acknowledged that
the BDCP, if finalized, would likely contain a conveyance choice but reasoned that any
58
future modifications to the Delta Plan are not relevant to whether the plan currently
complies with the Act. In response to the Council’s motion for clarification, the trial
court determined that the Council had the discretion to satisfy the statutory requirements
set forth in section 85304 by adopting legally enforceable regulations or nonbinding
recommendations.
On appeal, the Water Contractors contend that the trial court erred because the
Delta Reform Act does not authorize the Council to adopt legally enforceable regulations
to satisfy the requirements set forth in section 85304. We disagree.
As an initial matter, we note that the documents subject to judicial notice
demonstrate that the Delta Plan Amendments do not include any regulatory policy
intended to be a legally enforceable regulation that satisfies the requirements set forth in
section 85304. Rather, the Council adopted a set of recommendations in this regard.
Under these circumstances, we would ordinarily decline to consider the issue raised by
the Water Contractors on the ground that it fails to present a justiciable controversy.
(Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th
1202, 1223 [under the justiciability doctrine, the duty of every court is to decide actual
controversies by a judgment which can be carried into effect, and not to declare
principles or rules of law which cannot affect the matter in issue in the case before it].)
However, this issue is ripe for review, and we will address it here, because various
parties26 contend that the trial court erred by failing to conclude that the Delta Reform
Act requires, rather than permits, the Council to adopt legally enforceable regulations to
satisfy the requirements of section 85304.
26 The parties include the petitioners in California Water Impact Network, et al. v. Delta
Stewardship Council (San Francisco Super. Ct. case No. CPF-13-513047), Central Delta
Water Agency, et al. v. Delta Stewardship Council (San Francisco Super. Ct. case No.
CPF-13-513048), and Save the California Delta Alliance v. Delta Stewardship Council
(San Francisco Super. Ct. case No. CPF-13-513049).
59
We find no error. As we have explained, the Legislature delegated broad authority
to the Council to “adopt regulations or guidelines as needed to carry out the powers and
duties identified in this [Act].” (§ 85210, subd. (i).) Under section 85304, the
Legislature mandated that the Delta Plan “promote options for new and improved
infrastructure relating to the water conveyance in the Delta, storage systems, and for the
operation of both to achieve the coequal goals.” However, nothing in this provision or
any other provision in the Act can be construed as requiring the Council to adopt
regulations to satisfy the requirements in section 85304. Under the Act, the Council has
the discretion to adopt recommendations or regulations to satisfy these requirements. 27
Had the Legislature intended to limit the Council’s discretion in how to satisfy the
requirements of section 85304, it would have included express statutory language doing
so. It did not. As we concluded above, that the Act requires the Council to adopt and
implement a legally enforceable Delta Plan, does not compel the conclusion that the
Council was required to adopt legally enforceable regulations to satisfy the requirements
in section 85304. The Delta Plan is not rendered unenforceable by the absence of
regulations in this regard. Moreover, the language of the Act makes clear that the
27 The Council has asked us to take judicial notice of the definition of “promote” in the
Oxford Dictionary. The Council’s request does not include the definition but rather a
link to the “UK English” dictionary from the Oxford University Press
(https://www.lexico.com/definition/future). We note the “US English” dictionary
definition of “promote” varies only slightly from the definition the Council offers
(https://www.lexico.com/en/definition/future). We grant the Council’s request. (Evid.
Code, § 451, subd. (e) [judicial notice shall be taken of “[t]he true signification of all
English words and phrases and of all legal expressions”].) The Oxford Dictionary (UK
version) defines “promote” to mean “[s]upport or actively encourage (a cause, venture,
etc.); further the progress of.” (Oxford University Press (Online ed. 2019)
[as of Apr. 7, 2020], archived at:
.) The dictionary gives the following example sentence:
“ ‘some regulation is still required to promote competition.’ ” (Ibid.) The adoption of
recommendations or regulations to satisfy the requirements in section 85304 fall within
the definition of “promote.”
60
Legislature chose to grant the Council broad authority to apply its expertise in
determining how to fulfill its obligations under the Act to achieve the coequal goals,
including whether to adopt regulations or recommendations to satisfy the requirements in
section 85304.
4.0 CDWA and C-WIN28
CDWA and C-WIN are comprised of: (1) Delta-based local governmental
entities, including water agencies and reclamation districts; (2) California nonprofit
public interest organizations and nonprofit public benefit organizations; and (3)
landowners in the Delta. CDWA and C-WIN filed a joint respondent’s brief on appeal.
That brief also includes the opening brief for CDWA’s cross-appeal. C-WIN did not file
an appeal or cross-appeal.
In its cross-appeal, CDWA contends the trial court erred in failing to invalidate
certain portions of the Delta Plan (e.g., WR P1) on the ground that they are not based on
best available science and the advice provided by the Delta Independent Science Board
(hereafter DISB). According to CDWA the Council treated the mandatory language of
section 85308 as “mere suggestion, blatantly disregarding DISB comments while drafting
the Delta Plan,” including, among other things, disregarding DISB’s recommendation to
provide clear performance measures and triggers, conceptual modeling, or references to
conceptual models guiding development of the Delta Plan. In support of its claim,
CDWA states, “Petitioners do not allege that the Delta Plan’s underlying science was
improper, but rather that portions of the Delta Plan are not supported by any science.
Wholly failing to provide scientific support for the Delta Plan, and not following DISB
28 The petitioners in Central Delta Water Agency, et al. v. Delta Stewardship Council
(San Francisco Super. Ct. case No. CPF-13-513048) and California Water Impact
Network, et al. v. Delta Stewardship Council (San Francisco Super. Ct. case No. CPF-13-
513047) have filed a joint brief. We refer to these petitioners collectively as CDWA and
C-WIN.
61
direction on such issues, violated section 85308, subdivision (a).” We conclude that
CDWA has failed to demonstrate error.
As part of the Delta Reform Act, the Legislature established the DISB (§ 85280,
subd. (a)) and mandated that the Delta Plan “[b]e based on the best available scientific
information and the independent science advice provided by the . . . [DISB]” (§ 85308,
subd. (a); see § 85302, subds. (a), (g) [“the council shall make use of the best available
science” in implementing the Delta Plan to “further the restoration of the Delta ecosystem
and a reliable water supply”]). The Act requires the DISB to “provide oversight of the
scientific research, monitoring, and assessment programs that support adaptive
management of the Delta through periodic reviews of each of those programs that shall
be scheduled to ensure that all Delta scientific research, monitoring, and assessment
programs are reviewed at least once every four years,” (§ 85280, subd. (a)(3)) and to
“submit to the council a report on the results of each review, including recommendations
for any changes in the programs reviewed by the board” (§ 85280, subd. (a)(4)).
The trial court rejected CDWA’s contention that the Council had failed to use best
available science with respect to various portions of the Delta Plan, including the
adoption of WR P1 and several other regulatory policies. The court found that the
Council had either used best available science or that CDWA had failed to establish that
the Council had not used best available science. On appeal, CDWA has framed its
argument as a legal question as to whether the Delta Plan was required to be based on
best available science and the advice of the DISB.29 However, the question for us is
whether there is no substantial evidence supporting a finding that the allegedly defective
29 The Council does not dispute this point. Indeed, the Delta Plan specifically
acknowledges that the Act requires the plan to be based on the best available scientific
information and the independent science advice provided by the DISB. (§ 85308, subds.
(a) & (f).) The issue is not whether this is a mandatory statutory requirement but rather
whether the Delta Plan violated this requirement in the ways identified by CDWA.
62
portions of the Delta Plan were based on best available science and the advice of the
DISB. This is because the nature of the alleged defects in the Delta Plan are
predominantly factual. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City
of Rancho Cordova (2007) 40 Cal.4th 412, 426-427, 435.) In applying the substantial
evidence standard, the appellant bears the burden of proving there was no substantial
evidence in the record to support the agency’s decision. (California Native Plant Society
v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 626.) To do so, appellant must
set forth in its brief all the material evidence, not merely evidence supporting its position.
(Ibid.) The reason for this is that “if the appellants fail to present us with all the relevant
evidence, then the appellants cannot carry their burden of showing the evidence was
insufficient to support the agency’s decision because support for that decision may lie in
the evidence the appellants ignore.” (State Water Resources Control Bd. Cases, supra,
136 Cal.App.4th at pp. 749-750.)
The Council contends that CDWA has forfeited its claim of error by offering a
one-sided recitation of the evidence. We agree. Where, as here, an opening brief fails to
recite and discuss the record that supports the challenged agency decision, the appellant is
deemed to have forfeited the substantial evidence argument. (State Water Resources
Control Bd. Cases, supra, 136 Cal.App.4th at p. 749.) “A reviewing court will not
independently review the record to make up for appellant’s failure to carry his burden.”
(Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.)
We are unpersuaded by CDWA’s contention that the Act required the Council, as
a matter of law, to include all of the recommendations and advice provided by the DISB
in the original Delta Plan. The text of the statute does not impose such a requirement.
The statute mandates that the Delta Plan be built upon principles of adaptive management
(§ 85052) and be based on the best available scientific information and advice provided
by the DISB (§ 85308, subds. (a), (f)). CDWA has not provided authority and legal
analysis convincing us that their interpretation is correct.
63
5.0 Delta Alliance
Delta Alliance is an unincorporated association. Its organizational purpose is to
work with local, state, and federal government agencies to create a balanced state water
plan that keeps the Delta a safe and healthy environment while providing reasonable
water exports for other parts of the state. Its members include people who own homes in
the Delta, recreate in the Delta, and earn their living working for Delta-related businesses.
Delta Alliance contends that the 73 recommendations set forth in the Delta Plan
are invalid because they constitute regulations within the meaning of the APA and were
not adopted in compliance with the rulemaking procedures of the APA. Delta Alliance
further contends that Appendix A to the Delta Plan is invalid because it constitutes an
interpretative regulation within the meaning of the APA that was not adopted in
compliance with the rulemaking procedures of the APA. From this premise, Delta
Alliance argues that the Council’s decision not to adopt water conveyance regulations or
recommendations based on Appendix A is void and should be “set aside.” Finally, Delta
Alliance contends that the trial court erred in failing to invalidate the Delta Plan’s flow
policy, i.e., Ecosystem Restoration Policy 1 (ER P1)—titled, “Delta Flow Objectives.”
According to Delta Alliance, the trial court should have invalidated ER P1 on the ground
that it is arbitrary and capricious because it fails to advance the goal of restoring Delta
flows in violation of sections 85302, subdivision (e)(4) and 85020, subdivision (c). We
reject these contentions.
5.1 APA
5.1.1 Applicable Legal Principles
“The APA subjects proposed agency regulations to certain procedural
requirements as a condition to their becoming effective.” (Morning Star Co. v. State Bd.
of Equalization (2006) 38 Cal.4th 324, 332 (Morning Star).) “ ‘If a policy or procedure
falls within the definition of a “regulation” within the meaning of the APA, the
promulgating agency must comply with the procedures for formalizing such regulation,
64
which include public notice and approval by the Office of Administrative Law (OAL).’ ”
(Capen v. Shewry (2007) 155 Cal.App.4th 378, 386.)
The APA defines “ ‘[r]egulation’ ” to mean “every rule, regulation, order, or
standard of general application or the amendment, supplement, or revision of any rule,
regulation, order, or standard adopted by any state agency to implement, interpret, or
make specific the law enforced or administered by it, or to govern its procedure.” (Gov.
Code, § 11342.600.) “A regulation subject to the APA thus has two principal identifying
characteristics. [Citation.] First, the agency must intend its rule to apply generally, rather
than in a specific case. The rule need not, however, apply universally; a rule applies
generally so long as it declares how a certain class of cases will be decided. [Citation.]
Second, the rule must ‘implement, interpret, or make specific the law enforced or
administered by [the agency], or . . . govern [the agency’s] procedure.’ ” (Tidewater
Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571; see Morning Star, supra,38 Cal.4th at pp. 333-334 [same].)
A rule that constitutes a regulation within the meaning of the APA is invalid if it
was not adopted in conformity with the procedural requirements of the APA. (Morning
Star, supra, 38 Cal.4th at p. 333; see Naturist Action Com. v. Department of Parks &
Recreation (2009) 175 Cal.App.4th 1244, 1250 [If an agency adopts a regulation without
complying with the APA requirements it is deemed an “ ‘underground regulation’ ” and
is invalid].) “Whether an agency action constitutes a regulation is a question of law that
we review de novo.” (County of San Diego v. Bowen (2008) 166 Cal.App.4th 501, 517.)
5.1.2 Delta Plan Recommendations
Although not entirely clear, we construe Delta Alliance’s brief as asserting that all
73 recommendations in the Delta Plan constitute unlawful regulations under the APA.
Basic rules of appellate procedure prevent us from addressing this claim on the merits.
The record reflects that this issue was not raised in the briefing filed by Delta Alliance in
the trial court. The trial court’s order makes no mention of this issue. “It is axiomatic
65
that arguments not raised in the trial court are forfeited on appeal.” (Kern County Dept.
of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038 (Kern
County).)
But even if this issue was not forfeited, Delta Alliance has failed to demonstrate
that any of the recommendations in the Delta Plan amount to an unlawful regulation
under the APA. Delta Alliance argues the 73 recommendations in the Delta Plan were
required to be adopted as regulations in compliance with the APA because they constitute
“guidelines” within the meaning of the APA as they interpret, implement, and make
specific the law administered by the Council—the Delta Reform Act. According to Delta
Alliance, the Delta Plan’s recommendations “apply generally to all future actions
affecting the Delta or implicating the [c]oequal [g]oals,” and they “seek to get other
agencies to take specific actions that will impact the Delta, California’s water system, and
the public.” Delta Alliance, however, failed to recite the text of any recommendation and
provide legal analysis explaining how it constitutes an unlawful regulation under the
APA. Instead, Delta Alliance points to language in the Delta Plan, which states that the
“working parts” of the Delta Plan include the 73 recommendations and 14 policies, and
that the recommendations are nonregulatory but call out actions essential to achieving the
coequal goals. Delta Alliance then references the Delta Plan’s Ecosystem Restoration
Recommendation 6 by noting that the Delta Plan “ ‘asks the Department of Fish and
Wildlife to change angling rules to permit heavier fishing and somewhat suppress the
bass population,’ ” which are nonnative “voracious predators” that are helping to deplete
native salmon and smelt. Delta Alliance concludes its argument by stating, “None of the
Delta Plan Recommendations were submitted to OAL or published in the California Code
of Regulations. This Court should hold that all of the required components of the Delta
Plan must be adopted as legally binding regulations. To the extent any provisions are
left, Delta Alliance respectfully urges the Court to hold that the Delta Plan
66
Recommendations must be adopted as guidelines pursuant to Government Code section
11340.5, subd. (a).”
Delta Alliance’s conclusory presentation, without the attempt to apply the
governing law to the circumstances of this case, is inadequate. It is well-settled that a
trial court’s judgment is presumed correct and conclusory claims of error are deemed to
be without foundation and require no discussion by the reviewing court. (In re S.C.
(2006) 138 Cal.App.4th 396, 408.) It is not our place to construct theories or arguments
to undermine the judgment and defeat the presumption of correctness. When an appellant
fails to raise a point, or asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as forfeited. (Badie v. Bank of America (1998)
67 Cal.App.4th 779, 784-785.) We therefore do not address this claim of error on the
merits.
5.1.3 Appendix A of the Delta Plan
We reject Delta Alliance’s contention that Appendix A of the Delta Plan
constitutes an unlawful regulation under the APA. Appendix A to the Delta Plan— titled,
“The Delta Stewardship Council’s Role Regarding Conveyance”— discusses the
Council’s regulatory authority over conveyance and explains that the Delta Plan does not
include any regulatory policies or recommendations regarding conveyance due to the
BDCP process that was not complete at the time the plan was issued. We need not recite
the Council’s reasons for its decision because Appendix A does not fall within the
definition of a “regulation” under the APA. Appendix A does not contain a written
statement of policy (i.e., a substantive standard) the Council intends to apply generally
that predicts how it will decide whether a proposed covered action involving conveyance
complies with the Delta Plan. Nor does Appendix A, as Delta Alliance claims, amount to
an interpretative regulation. Appendix A does not clarify an existing substantive standard
articulated in the Delta Reform Act that the Council is called upon to administer. (See
Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 555-556
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(Alvarado).) In Alvarado, our Supreme Court recently explained, “[A] published
enforcement policy that selects among several competing interpretations of the law, that
functions, in both intent and practice, as a rule that must be followed prospectively, and
that is not announced in the context of resolving a specific case fairly fits within the
APA’s definition of a ‘regulation’ [citation].” (Alvarado, at p. 556.)
But even if we were to conclude that Appendix A constitutes an interpretative
regulation that is invalid because it was not adopted in compliance with the rulemaking
procedures of the APA, it does not follow, as Delta Alliance contends, that the Council’s
decision not to adopt any conveyance regulations based on Appendix A is “void” and
should be “set aside” as unlawful. The Alvarado court explained, “ ‘[V]oid,’ in this
context, does not necessarily mean wrong. If the policy in question is interpretive of
some governing statute or regulation, a court should not necessarily reject the agency’s
interpretation just because the agency failed to follow the APA in adopting that
interpretation; rather, the court must consider independently how the governing statute or
regulation should be interpreted. ‘If, when we agreed with an agency’s application of a
controlling law, we nevertheless rejected that application simply because the agency
failed to comply with the APA, then we would undermine the legal force of the
controlling law. Under such a rule, an agency could effectively repeal a controlling law
simply by reiterating all its substantive provisions in improperly adopted
regulations. . . .’ ” (Alvarado, supra, 4 Cal.5th at p. 557.) “[A] court that is exercising its
independent judgment should certainly take the agency’s interpretation into
consideration, having due regard for the agency’s expertise and special competence, as
well as any reasons the agency may have proffered in support of its interpretation
[citation], and if the court is persuaded, it may, of course, adopt the agency’s
interpretation as its own.” (Id. at p. 559.)
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5.2 Validity of ER P1—Delta Flow Objectives
Delta Alliance contends that the trial court erred in failing to invalidate ER P1 on
the ground that it is arbitrary and capricious because it indisputably fails to advance the
statutory mandate of restoring Delta flows as required by sections 85020, subdivision (c)
and 85302, subdivision (e)(4). In other words, Delta Alliance claims that ER P1 is not
reasonably necessary to effectuate the purpose of the Delta Reform Act. We disagree.
In determining whether a regulation is reasonably necessary to effectuate the
purpose of the statute, we consider whether the rule is “arbitrary, capricious, or without
rational basis.” (Western States, supra, 57 Cal.4th at p. 415.) When making this
determination, we “ ‘ “ ‘ “must ensure that an agency has adequately considered all
relevant factors, and has demonstrated a rational connection between those factors, the
choice made, and the purposes of the enabling statute.” [Citation.]’ ” ’ ” (Golden Drugs
Co., Inc. v. Maxwell–Jolly (2009) 179 Cal.App.4th 1455, 1466.)
As relevant here, the Delta Reform Act states that it is the policy of California to
achieve the following objective, which the Legislature declared is inherent in the coequal
goals for management of the Delta: “Restore the Delta ecosystem, including its fisheries
and wildlife, as the heart of a healthy estuary and wetland ecosystem.” (§ 85020, subd.
(c).) The Act mandates that the Delta Plan include subgoals and strategies for restoring a
healthy ecosystem, including subgoals and strategies that “[r]estore Delta flows and
channels to support a healthy estuary and other ecosystems.” (§ 85302, subd. (e)(4).)
The Act states, in relevant part: “For the purpose of informing planning decisions for the
Delta Plan . . . , the [Water] [B]oard shall, pursuant to its public trust obligations, develop
new flow criteria for the Delta ecosystem necessary to protect public trust resources. In
carrying out this section, the board shall review existing water quality objectives and use
the best available scientific information. The flow criteria for the Delta ecosystem shall
include the volume, quality, and timing of water necessary for the Delta ecosystem under
69
different conditions. The flow criteria shall be developed in a public process by the board
within nine months of the enactment of this division.” (§ 85086, subd. (c)(1).)
The Delta Plan explains that human activity—dams, levees, and draining of
floodplains, wetlands, and groundwater basins—has harmed the Delta ecosystem by
reducing the total quantity of runoff through the Delta toward the ocean and changing the
timing of the runoff. It determined that guaranteeing adequate water flow from the rivers
feeding into and through Delta channels is “vital” to restoring the Delta ecosystem. The
Delta Plan states, “To revitalize the Delta ecosystem, . . . adequate seaward flows in Delta
channels [must occur] on a schedule more closely mirroring historical rhythms.” It refers
to these flows as “more natural, functional flows” and identifies them as a key component
of ecosystem restoration. The Delta Plan explains: “Flow is a major environmental input
that shapes ecological processes, habitat, and biotic composition in riverine and estuarine
ecosystems such as the Delta. Returning to a more naturally variable hydrograph is a key
component of ecosystem restoration because the hydrograph works hand-in-hand with
habitat restoration to produce diverse and interconnected food webs, refuge options,
spawning habitat, and regional food supplies [citation]. Flows should provide species
benefits and water supply reliability in the context of current hydrological conditions and
degraded habitat.”
The Delta Plan concluded that ecosystem “[f]low-related stressors can be reduced
or mitigated through improved flow management.” It explains that the Water Board is
responsible for setting the minimum seaward flows to be maintained in the Delta
channels and the flow standards for the major tributary rivers of the Delta, and that the
Water Board was in the process of revising those standards (i.e., flow objectives) at the
time the plan was issued. The Delta Plan recommended deadlines for the revisions (mid-
2014 and mid-2018), and stated that the regulations adopted by the Water Board will
become elements of the Delta Plan and the Council “can be called upon to review any
project that could affect Delta flows in the light of adopted flow criteria,” citing ER P1
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and Ecosystem Restoration Recommendation 1 (ER R1)— titled, “Update Delta Flow
Objectives.”30
The Delta Plan defines “flow criteria” as: “The development of specific criteria
by the State Water Resources Control Board for flows for the Delta ecosystem, including
the volume, quality, and timing of water necessary for the Delta ecosystem under
different conditions (Water Code section 85086(c)(1)).” It defines “flow objectives” as:
“Where protection of beneficial uses requires specific flow volumes at certain times,
regional water quality control boards may establish flow objectives in water quality
control plans. They differ from typical water quality objectives in that they are
implemented by the State Water Resources Control Board through modifications and
limitations of existing or future water rights to make sure these flows are met.”
ER P1, which is codified at section 5005 of title 23 of the California Code of
Regulations, provides:
“(a) The State Water Resources Control Board’s Bay Delta Water Quality Control
Plan flow objectives shall be used to determine consistency with the Delta Plan. If and
when the flow objectives are revised by the State Water Resources Control Board, the
revised flow objectives shall be used to determine consistency with the Delta Plan.
“(b) For purposes of Water Code section 85057.5(a)(3) and section 5001(j)(1)(E)
of this Chapter, the policy set forth in subsection (a) covers a proposed action that could
significantly affect flow in the Delta.”
30 ER R1 provides: “Development, implementation, and enforcement of new and
updated flow objectives for the Delta and high-priority tributaries are key to the
achievement of the coequal goals. The State Water Resources Control Board should
update the Bay Delta Water Quality Control Plan objectives as follows: [¶] (a) By June
2, 2014, adopt and implement updated flow objectives for the Delta that are necessary to
achieve the coequal goals. [¶] (b) By June 2, 2018, adopt, and as soon as reasonably
possible, implement flow objectives for high-priority tributaries in the Delta watershed
that are necessary to achieve the coequal goals.” (Fn. omitted.)
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We conclude that Delta Alliance has not met its burden to demonstrate that ER P1
is not reasonably necessary to effectuate the purpose of the Delta Reform Act. It has not
shown that the Council, in adopting ER P1, disregarded statutory requirements or acted
arbitrarily, capriciously, or without a rational basis. To the contrary, the record reflects
that the Council acted well within its broad rulemaking authority delegated under the Act
to achieve the Legislative goal of restoring the Delta ecosystem through an enforceable
regulatory policy designed to achieve adequate Delta flows. In our view, it was certainly
rational for the Council to adopt ER P1 to implement the Act’s stated goal of restoring
Delta flows and channels to support a healthy estuary and other ecosystems. (§ 85302,
subd. (e)(4).)
We reject Delta Alliance’s unsupported assertion that the Council’s decision to
adopt ER P1 and ER R1 was arbitrary and capricious because “[t]he Delta flow
objectives have still not been updated and the Council knew that there was no possibility
the objectives would be updated any time soon when it adopted [ER R1],” which
recommends the Water Board update flow objectives for the Delta by-mid 2014 and flow
objectives for high-priority tributaries in the Delta watershed by mid-2018. Delta
Alliance has transgressed a fundamental appellate rule—that a party must support every
factual assertion in a brief with a citation to the record. (Cal. Rules of Court, rule
8.204(a)(1)(C).) An appellate court is entitled to disregard unsupported factual
assertions. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; see Mueller
v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5 [“The claimed existence
of facts that are not supported by citations to pages in the appellate record, or not
appropriately supported by citations, cannot be considered by this court.”].)31
31 Delta Alliance’s combined opening brief/response brief, in addition to raising the
claims of error discussed above in the cross-appeal section, urges us to affirm a number
of the trial court’s holdings in the response section. With respect to performance measure
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THE FEES CASE
C-WIN contends the trial court erred in substantially reducing the amount of
attorney fees it requested under Code of Civil Procedure section 1021.5 (hereafter section
1021.5). In its cross-appeal, the Council does not dispute C-WIN’s entitlement to
attorney fees under section 1021.5. Rather, it contends the trial court erred in applying a
1.5 multiplier to the lodestar in calculating the fee award.32 We find no error.
1.0 Additional Background
In September 2013, C-WIN filed a first amended verified petition for writ of
mandate and complaint for declaratory and injunctive relief. Among other things, it
alleged causes of action under the Delta Reform Act and CEQA.
In July 2014, the trial court issued a case management order, which authorized the
petitioners to file joint briefs and to incorporate by reference all or portions of other
petitioners’ briefs. The order stated: “Any portion incorporated by reference in a brief
targets, Delta Alliance asserts that, even though the trial court did not rely on the APA in
concluding that the Delta Plan’s performance measure targets must be adopted as
regulations, the trial court’s ruling should be affirmed on this independent basis. We
decline to address this issue. First, the record does not reflect that it was raised below.
“It is axiomatic that arguments not raised in the trial court are forfeited on appeal.” (Kern
County, supra, 209 Cal.App.4th at p. 1038.) The trial court’s order makes no mention of
this issue, and Delta Alliance’s trial brief does not include such an argument although it
incorporates by reference arguments made by the petitioners in C-WIN/CDWA, North
Coast, and City of Stockton. None of the briefs incorporated by reference raise the
specific argument discussed here. Second, the performance measure targets in the
original Delta Plan have been superseded by the Delta Plan Amendments and are
currently the subject of multiple new lawsuits. The trial court should address the validity
of the performance measure targets in the first instance.
32 The Council has filed a motion asking us to take judicial notice of various documents
it claims are relevant to the appeals filed in the fees case. We deny the request, as none
of the documents are necessary to our resolution of the issues before us. (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6
[declining to take judicial notice of materials not “necessary, helpful, or relevant”].)
73
shall count for all purposes as if the incorporated portion were set forth in full in the
incorporating party’s brief, except toward page limits.”
In October 2014, C-WIN and CDWA filed a 79-page joint merits brief, which
included 13 arguments claiming the Delta Plan was deficient, multiple arguments
claiming the PEIR for the Delta Plan violated CEQA, and several arguments claiming the
Council violated the APA in adopting the Delta Plan regulations. The brief also
incorporated by reference the merits briefs filed by the petitioners in North Coast Rivers
Alliance, et al. v. Delta Stewardship Council (Sacramento Super. Ct. case No. 34-2013-
80001534), Save the California Delta Alliance v. Delta Stewardship Council (San
Francisco Super. Ct. case No. CPF-13-513049), and Stockton v. Delta Stewardship
Council (San Joaquin Super. Ct. case No. 39-2013-00298188-CU-WM-STK).
In May 2016, the trial court issued a written order granting in part and denying in
part C-WIN’s petition. In doing so, the court rejected 12 of the 13 arguments made in C-
WIN’s merits brief claiming the Delta Plan was deficient. The only argument the court
did not reject was the claim that the Delta Plan violated Water Code section 85304 by
failing to promote options for new and improved infrastructure relating to the water
conveyance in the Delta, storage systems, and for the operation of both to achieve the
coequal goals. In response to the Council’s motion for clarification, the trial court stated
that the Council could satisfy the requirements of Water Code section 85304 by either
adopting regulations or recommendations. As previously discussed, the court did not
reach the merits of any CEQA claim, reasoning that because the Delta Plan was invalid,
there was no longer a proposed project with a PEIR to review for compliance with
CEQA. The court explained, “The Court does not believe that piece-meal CEQA review
is feasible under circumstances in which significant [Delta] Plan revisions are required.
[¶] Because [the Council] must comply with its CEQA obligations following completion
of a revised Delta Plan, Petitioners will have the opportunity to file CEQA challenges to
this new certified document. Consequently, no party is deprived of the opportunity to
74
present challenges to the [P]EIR at such time as a final project (Delta Plan) has been
properly approved.”
After judgment was entered,33 C-WIN filed a motion for attorney fees and costs
under section 1021.5. C-WIN sought $1,440,713 in attorney fees and costs, which
included a request to apply a 2.0 multiplier to the lodestar. The Council opposed the
motion on various grounds, including that C-WIN was not entitled to the amount of fees
requested because it did not achieve its litigation objectives, as it was unsuccessful on 12
of its 13 arguments claiming the Delta Plan was deficient and only won a de minimis
victory on its water conveyance claim. The Council further argued that a multiplier was
not warranted, C-WIN requested an unreasonable hourly rate of $600 per hour for two
attorneys, and C-WIN was not entitled to recover fees for time spent on CEQA issues.
The Council also pointed out that C-WIN was improperly attempting to “qualify for fees”
by claiming credit for work performed by other petitioners on the performance measure
targets issue. The Council noted that C-WIN incorporated by reference the arguments
made by other petitioners and did not contribute anything of substance to this issue.
In its tentative ruling, the trial court found that C-WIN was entitled to recover
attorney fees under section 1021.5 but that the appropriate amount of the fee award was
significantly less than the requested amount of $1,440,713. In so finding, the court
agreed with the Council that the requested fee award should be reduced by 12/13ths to
reflect that C-WIN was unsuccessful on the majority of its “arguments/claims.” The
court also agreed with the Council that the requested fee award should be reduced
because the $600 hourly rate C-WIN sought for two attorneys was unreasonable, and
because the court never reached the merits of any CEQA claim. The court, however,
33 The judgment entered in favor of C-WIN included the relief it obtained regarding the
promotion of options relating to water conveyance in the Delta and storage systems as
well as the relief obtained by the other petitioners regarding performance measure targets.
75
disagreed with the Council that C-WIN’s success was de minimis. It also disagreed that a
multiplier was not warranted; it concluded that a multiplier of 1.5 was appropriate. After
calculating the lodestar, applying the 1.5 multiplier, and adding costs and post-judgment
fees, the court awarded C-WIN $94,698.33.
At the hearing on the motion, C-WIN stated that the main issue it wanted to
address was its success in achieving its litigation objectives. According to C-WIN, it
achieved “near complete success” on its Delta Reform Act cause of action because the
court set aside the Delta Plan with directions for the Council to “consider conveyance
options,” which was “the heart of the concern [it] had with the Delta Plan.” C-WIN also
claimed that it had achieved success on the performance measure targets issue because it
adopted by reference the successful arguments made by other petitioners. C-WIN
recognized that the trial court had discretion to adjust the requested fee award based on
its level of success but argued that the important factor in deciding the proper award was
whether it achieved its litigation objectives. C-WIN asserted that because all of its
unsuccessful arguments were “so intertwined, so intimately related to the successful
argument,” it achieved “full success” on its Delta Reform Act cause of action.
The Council disagreed, arguing that a reduction in the requested fee award was
appropriate because C-WIN’s “loss was overwhelming.” The Council pointed out that C-
WIN had lost 12 of its 13 arguments claiming the Delta Plan was deficient, and that C-
WIN only obtained a “technical win” on the conveyance issue because it failed to achieve
its main objective of requiring the Council to adopt a regulation. In response, C-WIN did
not dispute that it sought an order requiring the Council to adopt a regulation regarding
conveyance. Instead, C-WIN stated, “It’s true that there were many, many things that we
asked for that we didn’t get, but we did get the central objective that we wanted to focus
on, which is . . . effectively promoting conveyance alternatives in the revised [Delta]
plan . . . . Couldn’t be happier with that part of the ruling, and we see that as very far
from a technical win but as a central objective.” C-WIN claimed that it was “pretty
76
happy” with the court’s ruling on conveyance, and that to characterize its achievement on
the issue as an “insignificant technical win . . . is approaching absurdity.” The Council
countered by asserting that C-WIN’s trial brief and fee motion demonstrate that
conveyance was not the central purpose of its lawsuit, noting that the fee motion did not
even mention conveyance.
Following the hearing, the trial court adopted the tentative ruling as the final
ruling.
2.0 General Legal Principles and Standard of Review
Section 1021.5 is an exception to the general rule that parties in litigation pay their
own attorney fees. (Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092,
1107 (Friends of Spring Street).) “ ‘Derived from the judicially crafted “private attorney
general doctrine” [citation], section 1021.5 is aimed at encouraging litigants to pursue
meritorious public interest litigation vindicating important rights and benefitting a broad
swath of citizens, and it achieves this aim by compensating successful litigants with an
award of attorney’s fees [citations].’ [Citation.] The intent of section 1021.5 fees is not
‘to punish those who violate the law but rather to ensure that those who have acted to
protect public interest will not be forced to shoulder the cost of litigation.’ ” (Id. at p.
1107.) The purpose of section 1021.5 is to “financially reward attorneys who
successfully prosecute cases in the public interest, and thereby ‘ “prevent worthy
claimants from being silenced or stifled because of a lack of legal resources.” ’ ”
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 568 (Graham).)
Section 1021.5 authorizes an award of attorney fees to a “successful party . . . in
any action which has resulted in the enforcement of an important right affecting the
public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity and financial
burden of private enforcement . . . are such as to make the award appropriate, and (c)
such fees should not in the interest of justice be paid out of the recovery, if any.” Under
77
section 1021.5, the “successful party” is generally the “prevailing” party, that is, “ ‘the
party that “ ‘ “succeed[s] on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.” ’ [Citation.]” ’ [Citation.] ‘The party
seeking attorney fees need not prevail on all its claims alleged in order to qualify for an
award.’ ” (McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 625; see Friends
of Spring Street, supra, 33 Cal.App.5th at p. 1108 [“The ‘successful party’ under section
1021.5 is ‘the party to litigation that achieves its objectives.’ ”].)
When a party is entitled to attorney fees under section 1021.5, the amount of the
award is determined by the lodestar-multiplier method. (See Graham, supra, 34 Cal.4th
at p. 579.) A court applies the lodestar-multiplier method to calculate fees “ ‘by
multiplying the number of hours reasonably expended by counsel by a reasonable hourly
rate. Once the court has fixed the lodestar, it may increase or decrease that amount by
applying a positive or negative “multiplier” to take into account a variety of other factors,
including the quality of the representation, the novelty and complexity of the issues, the
results obtained, and the contingent risk presented.’ ” (Laffitte v. Robert Half Internat.
Inc. (2016) 1 Cal.5th 480, 489.) The lodestar is intended to reflect the reasonable,
necessary hours expended and may therefore diverge from the attorney’s actual time
records. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1320.)
“The party seeking attorney fees has the burden of proving that the litigation
warranted an award of attorney fees and that the hours expended and the fees sought were
reasonable. [Citation.] Once the trial court has found, as the court did in this case, that
the litigation conferred a public benefit warranting an award of attorney fees, the amount
of fees to be awarded under section 1021.5 is within the trial court’s discretion.
[Citation.] The party seeking fees has the burden to prove that the trial court abused its
discretion in awarding less than the amount it sought.” (Save Our Uniquely Rural
Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179,
1184 (SOURCE).)
78
“Under the abuse of discretion standard, a trial court’s ruling will not be disturbed
unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice. [Citation.] Abuse of discretion
review ‘ “asks in substance whether the ruling in question ‘falls outside the bounds of
reason’ under the applicable law and the relevant facts [citations].” ’ [Citation.] The trial
court’s ruling will not be reversed if reasonable people could disagree as to the proper
outcome.” (SOURCE, supra, 235 Cal.App.4th at p. 1184.)
3.0 C-WIN
3.1 Limited Success
C-WIN contends the trial court erred in reducing the requested fee award based on
limited success. According to C-WIN, the court’s reduction of the award by 12/13ths
was inconsistent with the substantive law of section 1021.5 and, in any event, an abuse of
discretion. We disagree.
California law, like federal law, considers the extent of a prevailing party’s
success a crucial factor in determining the amount of a fee award. (Chavez v. City of Los
Angeles (2010) 47 Cal.4th 970, 989 (Chavez); Hensley v. Eckerhart (1983) 461 U.S. 424,
434 [76 L.Ed.2d 40, 51] (Hensley) [the results obtained factor is particularly crucial
where a plaintiff is deemed prevailing even though he only succeeded on some of his
claims for relief].) Indeed, the degree or extent of the prevailing party’s success in
obtaining the results which he sought must be taken into consideration in determining the
extent of attorney fees which it would be reasonable for him to recover. (Sokolow v.
County of San Mateo (1989) 213 Cal.App.3d 231, 248; SOURCE, supra, 235
Cal.App.4th at p. 1185 [“the extent of a party’s success is a key factor in determining the
reasonable amount of attorney fees to be awarded under section 1021.5”].)
“We apply a two-step inquiry in analyzing whether section 1021.5 fees are
appropriate where a plaintiff achieves limited success. [Citation.] The first step is to
determine whether the prevailing party’s successful and unsuccessful claims are related.
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[Citation.] ‘If the different claims are based on different facts and legal theories, they are
unrelated; if they involve a common core of facts or are based on related legal theories,
they are related.’ ” (Sweetwater Union High School Dist. v. Julian Union Elementary
School Dist. (2019) 36 Cal.App.5th 970, 996-997 (Sweetwater).) “ ‘Under this analysis,
an unsuccessful claim will be unrelated to a successful claim when the relief sought on
the unsuccessful claim is intended to remedy a course of conduct entirely distinct and
separate from the course of conduct that gave rise to the injury on which the [successful
claim] is premised.’ ” (Harman v. City and County of San Francisco (2006) 136
Cal.App.4th 1279, 1311.) “If a plaintiff has prevailed on some claims but not others, fees
are not awarded for time spent litigating claims unrelated to the successful claims . . . .”
(Chavez, supra, 47 Cal.4th at p. 989; see Hensley, supra, 461 U.S. at p. 435 [work on an
unsuccessful and unrelated claim “cannot be deemed to have been ‘expended in pursuit
of the ultimate result achieved’ . . . and therefore no fee may be awarded for services on
the unsuccessful claim” (fn. omitted)].)
If successful and unsuccessful claims are related, the court proceeds to the second
step of the inquiry, which requires the trial court to evaluate the significance of the
overall relief obtained by the plaintiff in relation to the hours reasonably expended on the
litigation. (Sweetwater, supra, 36 Cal.App.5th at p. 997.) “Full compensation may be
appropriate where the plaintiff has obtained ‘excellent results,’ but may be excessive if ‘a
plaintiff has achieved only partial or limited success.’ [Citation.] ‘The court may
appropriately reduce the lodestar calculation “if the relief, however significant, is limited
in comparison to the scope of the litigation as a whole.” ’ [Citation.]” (Environmental
Protection Information Center v. Department of Forestry & Fire Protection (2010) 190
Cal.App.4th 217, 239.) In conducting the analysis at the second step of the inquiry, “ ‘the
most critical factor is the degree of success obtained.’ ” (Harman v. City and County of
San Francisco (2007) 158 Cal.App.4th 407, 418.) A court may identify specific hours
80
that should be eliminated or simply reduce the award to account for the limited success.
(Ibid.)
We conclude that C-WIN has not met its burden to demonstrate that the trial court
erred in reducing the requested fee award based on limited success. As discussed above,
the Council argued in the trial court that a substantial reduction of the requested fee
award was warranted because C-WIN was unsuccessful on 12 of its 13 arguments
claiming the Delta Plan was deficient. In response, C-WIN did not dispute that the trial
court rejected nearly all of its arguments regarding the sufficiency of the Delta Plan but
claimed that the requested fee award was appropriate because it achieved its litigation
objective with respect to its Delta Reform Act cause of action—vacating and setting aside
the Delta Plan and applicable regulations. C-WIN argued that the Council’s limited
success theory was not a proper basis to reduce the fee award because it obtained an
excellent result, and the court’s rejection of certain grounds for vacating the Delta Plan
was an insufficient reason for reducing the award. At the hearing on the motion, C-WIN
argued for the first time that because all of its unsuccessful arguments were “so
intertwined, so intimately related to the successful argument,” it achieved “full success”
on its Delta Reform Act cause of action.
We reject C-WIN’s contention that its unsuccessful arguments for setting aside the
Delta Plan were related to its successful argument. C-WIN’s unsuccessful arguments
sought to set aside the Delta Plan for specific deficiencies unrelated to its successful
argument regarding water conveyance in the Delta. The unsuccessful arguments were
not merely different legal theories attempting to achieve the same result as the successful
argument. Rather, the unsuccessful arguments intended to remedy alleged deficiencies in
the Delta Plan entirely distinct and separate from the deficiency on which its successful
argument was premised. Therefore, we find no error in the trial court’s determination
that C-WIN was not entitled to recover fees for the time spent on arguments unrelated to
its successful argument. Moreover, even if we agreed with C-WIN that its unsuccessful
81
arguments were related to its successful argument, the trial court acted well within its
discretion in reducing the requested fee award to account for C-WIN’s limited success in
comparison to the scope of the litigation as a whole. The record discloses that C-WIN’s
litigation objectives with respect to its Delta Reform Act cause of action included
invalidating the Delta Plan on numerous independent grounds and that it directly
succeeded only in invalidating the Delta Plan on one of those grounds. Contrary to C-
WIN’s contention at the hearing on the fee motion, the allegations in its petition do not
disclose that it achieved its “central objective” of invalidating the Delta Plan for failing to
promote options for water conveyance in the Delta. Nowhere in C-WIN’s petition does it
allege that the Delta Plan was deficient for violating Water Code section 85304. The
allegations in C-WIN’s petition related to water conveyance involve the BDCP and claim
that the Council’s actions regarding this conveyance option violated CEQA in various
ways. Further, a fair reading of C-WIN’s merits brief does not support C-WIN’s
contention that the Delta Plan’s failure to promote options for water conveyance was
“the heart of the concern [it] had with the Delta Plan.” C-WIN devoted 34 pages of its
merits brief to arguing that the Delta Plan was deficient. Four of those pages discuss the
issue of water conveyance and nothing in the brief suggests that this issue was more
important than any of the other 12 arguments claiming the Delta Plan was deficient.
We are unpersuaded by C-WIN’s contention that the trial court abused its
discretion by failing to consider the litigation objectives disclosed in its petition.
According to C-WIN, the trial court erred in reducing the requested fee award because it
“obtained precisely what [it] sought” in filing this action; namely, “the determination of
the invalidity of the adopted Delta Plan, and the Judgment and Writ requiring the Council
to revise the Delta Plan to include quantified or otherwise measurable targets associated
with achieving reduced Delta Reliance and a flow policy including quantified or
otherwise measurable targets.” Nothing in the record indicates that the trial court did not
consider the litigation objectives disclosed in C-WIN’s petition. While C-WIN’s petition
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reveals that it sought to invalidate the Delta Plan based on its failure to include
performance measure targets as required by the Delta Reform Act, C-WIN never claimed
in the trial court that it spent any time briefing the merits of this issue or otherwise
contributed to the successful result achieved by the other petitioners on this issue.
Instead, C-WIN acknowledged, as it does on appeal in its opening brief, that its merits
brief simply incorporated by reference the arguments made by other petitioners.34 A trial
court has the discretion to “consider the relative contributions of multiple private
attorneys general when it exercises its discretion to determine the proper amount of an
attorneys’ fee award.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 88;
see In re State Water Resources Control Bd. Cases (2008) 161 Cal.App.4th 304, 319, fn.
8 [explaining that in situations involving coordinated cases, and thus multiple judgments,
the trial court must fairly weigh the extent to which the services of the parties contributed
to the success achieved in their action, not just the success achieved in the coordinated
actions as a whole].) C-WIN has not met its burden to establish that the trial court abused
its discretion by basing its fee award on the success of the arguments C-WIN briefed on
the merits. In determining the extent of a prevailing party’s success in obtaining the
results which it sought, a court considers the relief obtained compared to the party’s
litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and
similar sources. (See Hsu v. Abbara (1995) 9 Cal.4th 863, 876.)
34 In its reply brief, C-WIN argues for the first time that it “consistently and forcefully
advanced its arguments regarding the Delta Plan’s ‘performance measures’ throughout
this litigation.” We will not consider this argument because it was not raised in the trial
court and is inconsistent with the position C-WIN took in the trial court. (Mattco Forge,
Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847; Sommer v. Gabor (1995) 40
Cal.App.4th 1455, 1468.) On a related matter, we grant the Council leave to file its
proposed response to allegations of misrepresentation made against it in C-WIN’s reply
brief.
83
Finally, we reject C-WIN’s contention that the trial court erred in reducing the
requested fee award because seven of the 13 arguments raised in its merits brief regarding
the sufficiency of the Delta Plan were based on theories it did not allege in its petition. In
other words, C-WIN argues that the trial court improperly reduced the requested fee
award because seven of the 13 arguments rejected by the court were based solely on
theories CDWA alleged in its petition.35 C-WIN forfeited this argument by failing to
raise it in the trial court. “ ‘It is axiomatic that arguments not asserted below are waived
and will not be considered for the first time on appeal.’ ” (Martinez v. Scott Specialty
Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249 (Martinez); see Easterby v. Clark (2009)
171 Cal.App.4th 772, 783, fn. 7 (Easterby).) This argument also fails because it is
inconsistent with the position C-WIN took in the trial court. (Brown v. Boren (1999) 74
Cal.App.4th 1303, 1316 [“a litigant may not change his or her position on appeal and
assert a new theory”]; Fontana v. Upp (1954) 128 Cal.App.2d 205, 211 [“Where parties
have taken a certain position during the trial, they cannot adopt a different position on
appeal by raising a new issue which the other party was not apprised of at the trial.”].)
The joint brief filed by C-WIN and CDWA does not specify that certain arguments only
pertained to one of the petitioner groups. Rather, it is captioned as a joint brief on the
merits in support of the petitions filed by C-WIN and CDWA. At the hearing on the fee
motion, C-WIN represented that its litigation priorities were reflected in its merits brief.
C-WIN did not dispute that it had “brought thirteen arguments” and only “won on one of
35 We are somewhat mystified by this argument. As indicated, C-WIN’s petition does
not include the theory that the Delta Plan was deficient for violating Water Code section
85304 by failing to promote options for new and improved infrastructure relating to the
water conveyance in the Delta, storage systems, and for the operation of both to achieve
the coequal goals. Thus, if we were to accept C-WIN’s suggestion that the fee award
should be determined solely by the specific theories for relief alleged in its petition, the
trial court’s decision to award C-WIN attorney fees would be subject to reversal. For the
reasons we discuss, including forfeiture, we need not decide this issue.
84
them.” C-WIN conceded that “there were many, many things that [it] asked for that [it]
didn’t get.” At no point did C-WIN make the argument it now advances on appeal;
namely, that the fee award should not have been reduced by 12/13ths because it did not
seek to invalidate the Delta Plan on each of the 13 grounds raised in its merits brief.
3.2 CEQA
C-WIN contends that the trial court’s refusal to award fees for hours expended on
its CEQA cause of action was inconsistent with the substantive law of section 1021.5 and
was an abuse of discretion. We disagree.
C-WIN has not met its burden to demonstrate that reversal is warranted. At the
hearing on the fee motion, C-WIN conceded that it did not achieve its litigation objective
with respect to its CEQA cause of action—decertification of the PEIR. As discussed
above, the trial court did not reach the merits of any alleged CEQA violation in view of
its order vacating and setting aside the Delta Plan and any applicable regulations based on
violations of the Delta Reform Act. After the trial court issued this order, the parties
stipulated that all CEQA claims would be preserved, regardless of the outcome of the
merits appeals, and could be “re-plead[ed] or resurrect[ed] . . . at a later date,” i.e., after
the Council amended the Delta Plan and any applicable regulations and certified a PEIR
for the amendments.36 The documents subject to judicial notice reflect that C-WIN is
currently challenging the Delta Plan Amendments and the PEIR for the Delta Plan
Amendments in a new lawsuit. We are not persuaded by C-WIN’s suggestion that the
trial court improperly reduced the requested fee award because its CEQA cause of action
36 As part of the judgments entered below, the parties agreed that, “To the extent [the
Council] relies on the 2013 Program EIR in the future, [the Council] shall—as part of that
reliance—adopt new CEQA findings and recertify the 2013 Program EIR along with
taking action on any other CEQA documentation it deems appropriate. [The Council]
shall also file a CEQA Notice of Determination that reflects the full extent of this
reliance.”
85
was an alternative legal ground for its desired outcome—invalidation of the Delta Plan.
C-WIN’s CEQA cause of action is an entirely distinct and separate claim from its Delta
Reform Act cause of action. It is based on different facts and legal theories and seeks
different relief.
3.3 Catalyst Theory
C-WIN contends that it was entitled to the requested fee award under the “catalyst
theory” because the Council “altered its behavior after, and in part, because of, [C-
WIN’s] lawsuit and Judgment,” as evidenced by the adoption of the Delta Plan
Amendments. According to C-WIN, it is a successful party under the catalyst theory
because the Delta Plan Amendments promote conveyance options and include quantified
or otherwise measurable performance measure targets. We disagree.
C-WIN forfeited this argument by not raising it in the trial court. (Martinez,
supra, 83 Cal.App.4th at p. 1249; see Easterby, supra, 171 Cal.App.4th at p. 783, fn. 7.)
In any event, the argument lacks merit. “The catalyst theory provides that a plaintiff is
successful for purposes of an attorney fee award under . . . section 1021.5, despite the
lack of a favorable judgment or other court action, if the lawsuit was a catalyst in
motivating the defendant to provide the primary relief sought.” (Garcia v. Bellflower
Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1066; Lyons v.
Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1346 [issue in catalyst cases “ ‘is
whether a party who has not obtained any judicial relief is nevertheless entitled to
fees’ ”].) Here, C-WIN obtained a favorable judgment. The trial court granted its
petition in part, invalidating the Delta Plan because it failed to promote options for water
conveyance and storage systems in violation of Water Code section 85304. The
judgment entered in favor of C-WIN includes the relief it obtained as well as the relief
obtained by the other petitioners in this coordinated action, including a writ of mandate
commanding the Council to revise the Delta Plan and any applicable regulations to
86
include quantified or otherwise measurable performance measure targets. Thus, this is
not a catalyst case and C-WIN’s reliance on such cases is misplaced. (Lyons, at p. 1347.)
4.0 The Council
The Council contends that reversal of the fee order is required because the trial
court abused its discretion in failing to “state a rational basis” for applying a 1.5
multiplier to the lodestar. The Council requests we remand this matter to the trial court
with directions to eliminate the multiplier or articulate a basis for it. We find no basis for
reversal.
The Council forfeited its claim of error by failing to object to the tentative
decision. “[W]hen a trial court announces a tentative decision, a party who failed to
bring any deficiencies or omissions therein to the trial court’s attention forfeits the right
to raise such defects or omissions on appeal.” (Porterville Citizens for Responsible
Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912 (Porterville
Citizens).) “The purpose of [the forfeiture] rule is to encourage parties to bring errors to
the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32
Cal.4th 1287, 1293.) “It is unfair to the trial judge and the adverse party to attempt to
take advantage of an alleged error or omission on appeal when the error or omission
could have been, but was not, brought to the attention of the trial court in the first
instance.” (Porterville Citizens, at p. 912.) Here, the record discloses that the Council’s
claim of error was not raised in the trial court. The Council made no mention of this
issue at the hearing on the fee motion.
But even if the claim was preserved for appeal, the Council has failed to establish
reversible error. “[T]he lodestar is the basic fee for comparable legal services in the
community; it may be adjusted by the court based on factors including . . . (1) the novelty
and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the
extent to which the nature of the litigation precluded other employment by the attorneys,
[and] (4) the contingent nature of the fee award. [Citation.] The purpose of such
87
adjustment [or multiplier] is to fix a fee at the fair market value for the particular action.
In effect, the court determines, retrospectively, whether the litigation involved a
contingent risk or required extraordinary legal skill justifying augmentation of the
unadorned lodestar in order to approximate the fair market rate for such services. The
‘ “experienced trial judge is the best judge of the value of professional services rendered
in his court, and while his judgment is of course subject to review, it will not be disturbed
unless the appellate court is convinced that it is clearly wrong.” ’ ” (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1132 (Ketchum).)
C-WIN’s fee motion sought a 2.0 multiplier based on the “contingency risk”
factor, which is “[o]ne of the most common fee enhancers” and an important
consideration in the multiplier analysis. (Graham, supra, 34 Cal.4th at p. 579; see
Ketchum, supra, 24 Cal.4th at p. 1138 [explaining that a multiplier for contingent risk “is
intended to approximate market-level compensation for such services, which typically
includes a premium for the risk of nonpayment or delay in payment of attorney fees”].)
In response to the motion, the Council argued that a multiplier was not warranted because
(1) only one of the C-WIN attorneys represented a client on a contingency basis, (2) C-
WIN failed to cite any authority awarding a multiplier greater than 1.5 “purely on the
basis of contingency,” (3) C-WIN did not achieve its litigation objectives, and (4) the
burden of the multiplier would be borne by the taxpayers.
A review of the tentative ruling reveals that the trial court was aware of its
discretion to apply a multiplier. It also reveals that the court was aware of the factors
justifying a multiplier and considered them in concluding that a 1.5 multiplier was
appropriate. In so concluding, the court acknowledged that “some of the work [by the
attorneys for the C-WIN petitioners] may not have been done on contingency.” On this
record, the Council has failed to carry its burden to establish that the court’s decision to
apply a 1.5 multiplier fell outside the court’s wide discretion. The Council has not
convinced us that the court was clearly wrong. We disagree with the Council that the
88
court’s failure to explain its specific reasons for applying a 1.5 multiplier requires
reversal. “[W]e cannot reverse an attorney fee award solely for lack of an explanation by
the trial court. We can reverse only if the record contains some indication that the trial
court considered improper factors or did, indeed, simply snatch its award ‘from thin
air.’ ” (SOURCE, supra, 235 Cal.App.4th at pp. 1189-1190.) No such indication appears
here.
DISPOSITION
In the merits case, the judgments in the following matters are reversed to the
extent the trial court concluded that the Council violated the Delta Reform Act by failing
to adopt, as legally enforceable regulations, performance measure targets to achieve
certain objectives of the Act: North Coast Rivers Alliance, et al. v. Delta Stewardship
Council (Sacramento Super. Ct. case No. 34-2013-80001534); California Water Impact
Network, et al. v. Delta Stewardship Council (San Francisco Super. Ct. case No. CPF-13-
513047); Central Delta Water Agency, et al. v. Delta Stewardship Council (San
Francisco Super. Ct. case No. CPF-13-513048); and Save the California Delta Alliance v.
Delta Stewardship Council (San Francisco Super. Ct. case No. CPF-13-513049). These
matters are remanded to the superior court with directions to dismiss the portions that
have become moot. The reversal on the grounds of mootness does not imply that the
judgments were erroneous on the merits as to the moot portions, but is solely for the
purpose of returning jurisdiction to the superior court so that it can vacate portions of
otherwise final judgments. In all other respects, the judgments entered in each of the six
coordinated cases before us are affirmed.
89
In the fees case, the trial court’s fee order is affirmed. The Council is awarded its
costs on appeal in this consolidated matter. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/
BUTZ, J.
We concur:
/s/
RAYE, P. J.
/s/
HULL, J.
90
Filed 5/12/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
C082944 & C086199
(JCCP No. 4758; Sacramento Super.
Ct. case Nos. 34-2013-80001500,
34-2013-80001530, 34-2013-
80001534; San Francisco Super. Ct.
case Nos. CPF-13-513047; CPF-13-
DELTA STEWARDSHIP COUNCIL CASES.
513048, CPF-13-513049.)
ORDER MODIFYING OPINION
AND CERTIFYING OPINION
FOR PARTIAL PUBLICATION
[NO CHANGE IN JUDGMENT]
APPEAL from a judgment of the Superior Court of Sacramento County,
Michael P. Kenny, Judge. Affirmed in part and reversed in part.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of the Discussion entitled “THE FEES CASE.”
1
Best Best & Krieger, Charity Schiller, Stefanie Morris, Jennifer Lynch for
Plaintiffs and Appellants State Water Contractors, Alameda County Flood Control and
Water Conservation District Zone 7, and San Bernardino Valley Municipal Water
District.
Marcia L. Scully, Adam C. Kear, Robert C. Horton, and Stefanie Morris for
Plaintiff and Appellant The Metropolitan Water District of Southern California.
Brunick, McElhaney & Kennedy, William J. Brunick, and Leland McElhaney for
Plaintiffs and Appellants Mojave Water Agency and Antelope Valley-East Kern Water
Agency.
Stanly T. Yamamoto, District Counsel, and Anthony T. Fulcher, Assistant District
Counsel for Plaintiff and Appellant Santa Clara Valley Water District.
Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O’Hanlon, Rebecca Harms,
and Carissa M. Beecham for Plaintiffs and Appellants San Luis & Delta-Mendota Water
Authority and Westlands Water District.
Pioneer Law Group, Andrea A. Matarazzo; and Jon D. Rubin, General Counsel for
Plaintiff and Appellant Westlands Water District.
Rebecca R. Akroyd, General Counsel for Plaintiff and Appellant San Luis &
Delta-Mendota Water Authority.
Freeman Firm, Thomas H. Keeling; Law Office of John H. Herrick, John H.
Herrick; Mohan, Harris, Ruiz, Wortmann, Perisho & Rubino, S. Dean Ruiz; Nomellini,
Grilli & McDaniel, Dante John Nomellini, Dante John Nomellini, Jr., and Daniel A.
McDaniel for Plaintiffs and Appellants Central Delta Water Agency, South Delta Water
Agency, Lafayette Ranch, Inc., and Cindy Charles.
Michael B. Jackson for Plaintiffs and Appellants California Sportfishing
Protection Alliance, California Water Impact Network, and AquAlliance, Friends of the
River and Restore the Delta.
Soluri Meserve and Osha R. Meserve for Plaintiff and Appellant Local Agencies
of the North Delta.
E. Robert Wright for Plaintiff and Appellant Friends of the River.
John Buse for Plaintiff and Appellant Center for Biological Diversity.
2
Law Offices of Michael A. Brodsky and Michael A. Brodsky for Plaintiff and
Appellant Save the California Delta Alliance.
Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General,
Deborah M. Smith, Supervising Deputy Attorney General, Jeremy Brown, Daniel L.
Siegel, Matthew Struhar, Deputy Attorneys General; Shute, Mihaly & Weinberger, Ellen
J. Garber, Gabriel M.B. Ross, and Sarah H. Sigman for Defendants and Appellants Delta
Stewardship Council.
Law Offices of Stephan C. Volker, Stephan C. Volker, and Alexis E. Krieg for
Plaintiffs and Respondents North Coast Rivers Alliance, Pacific Coast Federation of
Fishermen’s Associations, San Francisco Crab Boat Owners Association, and Winnemem
Wintu Tribe.
THE COURT:
It is ordered that the opinion filed herein on April 10, 2020, be modified as
follows:
On page 5, the paragraph immediately preceding the heading “FACTUAL AND
PROCEDURAL BACKGROUND” is deleted and is replaced with the following
paragraph:
In the merits case, we are asked to consider the validity of the trial
court’s rulings on legal challenges to the Delta Plan and Delta Plan
regulations. The challenges based on violations of the Delta Reform Act
can generally be summarized as asserting overregulation or under
regulation by the Council in violation of the Act. In the fee case, we are
asked to consider the validity of the trial court’s attorney fee order. For the
reasons stated below, in the published portion of this opinion we agree with
the Council that the trial court erred in finding that it violated the Act by
failing to adopt, as legally enforceable regulations, performance measure
targets to achieve certain objectives of the Act. We also agree with the
Council that the remaining issues raised in its appeal regarding the statutory
3
violations found by the trial court have become moot due to the adoption of
amendments to the Delta Plan. In the unpublished portion of this opinion
we find no error in the fee award and therefore affirm the trial court’s fee
order. In view of our mootness determination, we will reverse and remand
the judgments entered in the four cases appealed by the Council in the
merits case. These matters will be remanded to the superior court with
directions to dismiss the portions that have become moot. In all other
respects, we will affirm the judgment entered in each of the six coordinated
cases before us in the merits case.
The opinion in the above-entitled matter was not certified for publication in the
Official Reports. For good cause it now appears that the opinion should be partially
published in the Official Reports with the exception of the Discussion entitled “THE
FEES CASE,” and it is so ordered.
This modification does not change the judgment.
FOR THE COURT:
/s/
RAYE, P. J.
/s/
HULL, J.
/s/
BUTZ, J.
4