County of Butte v. Dept. of Water Resources ( 2023 )

Filed 5/1/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
COUNTY OF BUTTE, C071785
Plaintiff and Appellant, (Super. Ct. No.
CVCV091258)
v.
ORDER MODIFYING
DEPARTMENT OF WATER RESOURCES, OPINION AND
DENYING REHEARING
Defendant and Respondent;
NO CHANGE IN
STATE WATER CONTRACTORS, INC., et al., JUDGMENT
Real Parties in Interest and Respondents.
COUNTY OF PLUMAS et al.,
Plaintiffs and Appellants,
v.
DEPARTMENT OF WATER RESOURCES,
Defendant and Respondent;
STATE WATER CONTRACTORS, INC., et al.,
Real Parties in Interest and Respondents.
Two cases (Nos. 144282, 144283) were consolidated and transferred from the Butte
County Superior Court to the Yolo County Superior Court (No. CVCV091258).
1
THE COURT:
It is ordered that the opinion filed herein on April 7, 2023, be modified as follows:
1. On page 16, the second sentence of the first full paragraph, beginning “And while
true that DWR did not discuss” is deleted and the following sentence is inserted in its
place:
And while true that DWR did not discuss each of these authorities in its EIR, it
still conveyed much of the same type of information.
This modification does not change the judgment. Appellants’ petition for rehearing is
denied.
FOR THE COURT:
/s/
ROBIE, Acting P. J.
/s/
HULL, J.
/s/
BOULWARE EURIE, J.
2
EDITORIAL LISTING
APPEAL from a judgment of the Superior Court of Yolo County, Daniel P. Maguire,
Judge. Affirmed.
Bruce Alpert, Brad J. Stephens, County Counsel; Rossmann and Moore, Antonio
Rossmann, Roger B. Moore, Barton Lounsbury; Law Office of Roger B. Moore, Roger
B. Moore; Shute Mihaly & Weinberger and Ellison Folk for Plaintiff and Appellant
County of Butte.
R. Craig Settlemire, Gretchen Stuhr, County Counsel; Law Office of Roger B.
Moore, Roger B. Moore; Law Offices of Michael B. Jackson and Michael B. Jackson for
Plaintiffs and Appellants County of Plumas and Plumas County Flood Control and Water
Conservation District.
E. Robert Wright for Friends of the River and the California Sportfishing
Protection Alliance as Amici Curiae on behalf of Plaintiffs and Appellants.
Kamala D. Harris, Xavier Becerra, and Rob Bonta, Attorneys General, Robert W.
Byrne, Assistant Attorney General, Randy L. Barrow, Tracy L. Winsor, Deborah L.
Barnes, Russell B. Hildreth and Matthew J. Goldman, Deputy Attorneys General, for
Defendant and Respondent.
The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour; Duane Morris,
Thomas M. Berliner, Paul J. Killion, Jolie-Anne S. Ansley; Downey Brand, David R.E.
Aladjem, Meredith Nikkel and Rebecca R.A. Smith for Real Parties in Interest and
Respondents.
3
Filed 4/7/2023 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
COUNTY OF BUTTE, C071785
Plaintiff and Appellant, (Super. Ct. No.
CVCV091258)
v.
OPINION ON
DEPARTMENT OF WATER RESOURCES, TRANSFER
Defendant and Respondent;
STATE WATER CONTRACTORS, INC., et al.,
Real Parties in Interest and Respondents.
COUNTY OF PLUMAS et al.,
Plaintiffs and Appellants,
v.
DEPARTMENT OF WATER RESOURCES,
Defendant and Respondent;
STATE WATER CONTRACTORS, INC., et al.,
Real Parties in Interest and Respondents.
Two cases (Nos. 144282, 144283) were consolidated and transferred from the Butte
County Superior Court to the Yolo County Superior Court (No. CVCV091258).
1
APPEAL from a judgment of the Superior Court of Yolo County, Daniel P.
Maguire, Judge. Affirmed.
Bruce Alpert, Brad J. Stephens, County Counsel; Rossmann and Moore, Antonio
Rossmann, Roger B. Moore, Barton Lounsbury; Law Office of Roger B. Moore, Roger
B. Moore; Shute Mihaly & Weinberger and Ellison Folk for Plaintiff and Appellant
County of Butte.
R. Craig Settlemire, Gretchen Stuhr, County Counsel; Law Office of Roger B.
Moore, Roger B. Moore; Law Offices of Michael B. Jackson and Michael B. Jackson for
Plaintiffs and Appellants County of Plumas and Plumas County Flood Control and Water
Conservation District.
E. Robert Wright for Friends of the River and the California Sportfishing
Protection Alliance as Amici Curiae on behalf of Plaintiffs and Appellants.
Kamala D. Harris, Xavier Becerra, and Rob Bonta, Attorneys General, Robert W.
Byrne, Assistant Attorney General, Randy L. Barrow, Tracy L. Winsor, Deborah L.
Barnes, Russell B. Hildreth and Matthew J. Goldman, Deputy Attorneys General, for
Defendant and Respondent.
The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour; Duane Morris,
Thomas M. Berliner, Paul J. Killion, Jolie-Anne S. Ansley; Downey Brand, David R.E.
Aladjem, Meredith Nikkel and Rebecca R.A. Smith for Real Parties in Interest and
Respondents.
This case concerns California’s efforts to relicense its hydropower facilities at
Oroville Dam (the Oroville Facilities). Federal authorities initially licensed these
facilities—which are part of the State Water Project (SWP)—in 1957 for a 50-year
period. Before the license expired, California’s Department of Water Resources (DWR)
began the process for relicensing these facilities. It also, in connection with this effort,
prepared a statement of potential environmental impacts, known as an environmental
impact report or EIR, under the California Environmental Quality Act (CEQA; Pub.
Resources Code, § 21000 et seq.).
Three local governments—Butte County, Plumas County, and Plumas County
Flood Control and Water Conservation District (together, the Counties)—afterward filed
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writ petitions challenging the sufficiency of DWR’s EIR. They raised four principal
arguments. First, they asserted the EIR failed to adequately account for climate change.
Second, they contended the EIR failed to properly evaluate fiscal impacts to Butte
County and public health impacts from toxic contaminants. Third, they alleged the EIR
wrongly assumed that current facility operations comply with water quality standards.
And fourth, they contended the EIR failed to account for potential changes to the SWP
that could affect the Oroville Facilities. But the trial court found none of these arguments
persuasive and entered judgment in DWR’s favor.
On appeal, we consider this case for the third time. In our first decision, we found
the Counties’ challenge largely preempted by the Federal Power Act (16 U.S.C. § 791a et
seq.). (County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, 619
(County of Butte).) But our Supreme Court vacated our decision and asked us to
reconsider in light of one of its precedents. (Ibid.) In our second decision, we again
found the Counties’ challenge largely preempted. (Id. at pp. 619-620.) But our Supreme
Court, taking up the case a second time, reversed our decision in part. While the court
agreed that some of the remedies the Counties sought were preempted, it found they
could still challenge the sufficiency of DWR’s EIR. (Id. at p. 637.) It thus remanded the
matter to our court for further consideration. Turning to the merits for the first time since
this appeal was filed over a decade ago, we now affirm.
BACKGROUND
I
The Oroville Facilities and the State Water Project
In 1951, the California Legislature authorized the construction of a major water
storage and delivery system. (Planning & Conservation League v. Department of Water
Resources (2000) 83 Cal.App.4th 892, 898.) The resulting development, the SWP, is one
of the largest water storage and delivery systems in the United States. (San Luis & Delta-
Mendota Water Authority v. Jewell (9th Cir. 2014) 747 F.3d 581, 592; In re Bay-Delta
3
etc. (2008) 43 Cal.4th 1143, 1154.) It includes “a series of 21 dams and reservoirs . . .,
five power plants, 16 pumping plants, and 662 miles of aqueduct.” (In re Bay-Delta etc.,
at p. 1154, fn. 2.)
The Oroville Facilities, located on the Feather River in Butte County, are part of
the SWP. In the words of the EIR here, the Oroville Facilities are “a critical part of the
SWP, providing much of the system’s water collection and storage, flood management,
and power production capacity.” These facilities include, among other features, Oroville
Dam, several smaller dams, the Oroville reservoir (i.e., Lake Oroville), a power plant,
two pumping plants, a wildlife area, a fish hatchery, and numerous recreational facilities.
Together, these facilities serve multiple purposes, including water supply, hydropower
production, flood control, water quality improvement, recreation, and fish and wildlife
enhancement.
II
The Licensing of the Oroville Facilities
California obtained a 50-year federal license for the Oroville Facilities in 1957.
The state needed to obtain a federal license because then, as now, federal law required a
federal license for the construction, operation, and maintenance of dams, reservoirs, and
hydroelectric power plants. (16 U.S.C. § 817(1); see First Iowa Hydro-Electric Coop. v.
Federal Power Com. (1946) 328 U.S. 152, 156.) Today, the Federal Energy Regulatory
Commission (FERC) is charged with issuing these licenses. (16 U.S.C. § 817(1); see
County of Butte, supra, 13 Cal.5th at p. 619.)
In 1999, DWR—which operates the SWP—began public preparations to apply to
FERC for renewal of the Oroville Facilities license. (County of Butte, supra, 13 Cal.5th
at p. 621; Planning & Conservation League v. Department of Water Resources, supra, 83
Cal.App.4th at p. 899.) At the time DWR undertook the relicensing process, FERC
regulations allowed applicants to pursue the traditional licensing process or an alternative
licensing process. (County of Butte, at p. 621.) DWR opted for the latter process—a
4
process “designed to achieve consensus among interested parties on the terms of the
FERC license before the licensing application is submitted.” (Ibid.) This process
requires those with interest in the project to cooperate in a series of hearings,
consultations, and negotiations, and it is intended to conclude with the stakeholders
settling their differences and entering into a settlement agreement describing the terms of
the proposed license. (Ibid.) That agreement “then becomes the centerpiece of the
license application and serves as the basis for FERC’s ‘orderly and expeditious review’ in
setting the terms of the license.” (Ibid.) The agreement “is effectively a first draft of the
license” that is subject to FERC’s final approval. (Ibid.)
From 2001 to 2006, DWR and stakeholders from various entities—including five
federal agencies, five state agencies, seven local government entities, five Native
American tribes, four local water agencies, and 13 nongovernmental organizations—
participated in the alternative licensing process for the proposed relicensing of the
Oroville Facilities. (County of Butte, supra, 13 Cal.5th at p. 621.) After three years of
hearings and consultations, and two additional years of negotiations, over 50 parties
signed a settlement agreement describing the terms of the proposed license. (Id. at p.
622.) The Counties were among those that initially participated in this process, though
they elected not to sign the settlement agreement. (Ibid.)
The settlement agreement’s main provisions are described in two appendices. One
appendix contains more than 40 pages of provisions that the agreement’s signers intended
to be included in the new FERC license. (County of Butte, supra, 13 Cal.5th at p. 622.)
“These provisions address environmental protection, recreation, protection of cultural
properties, flood control, land use, and expenditures.” (Ibid.) “A second appendix added
nearly 20 pages of further provisions that were not intended for inclusion in the new
license, but which, as DWR told the trial court, DWR ‘nonetheless agreed to undertake to
obtain consensus.’ ” (Ibid.) These provisions include, among others, a provision
requiring the creation of a fund to benefit communities near the project.
5
Following the settlement agreement, both FERC and DWR completed
environmental review in connection with the proposed relicensing. FERC prepared an
environmental impact statement under the National Environmental Policy Act (42 U.S.C.
§ 4321 et seq.). (County of Butte, supra, 13 Cal.5th at pp. 622-623.) DWR, in turn,
prepared an EIR under CEQA and “characterized the project under CEQA review as
implementation of the settlement agreement, which would allow ‘the continued operation
and maintenance of the Oroville Facilities for electric power generation.’ ” (Id. at p.
623.) DWR’s “EIR is programmatic in nature, meaning it contemplates additional CEQA
review in connection with later activities that are part of the project.” (Id. at p. 635.)
DWR certified the EIR and approved the settlement agreement in 2008. As of this
day, FERC has yet to relicense the Oroville Facilities and has instead allowed DWR to
operate the facilities under annual, interim licenses. (County of Butte, supra, 13 Cal.5th
at p. 621.)
III
The Counties’ Suit
In 2008, the Counties filed two writ petitions—which were later consolidated—
challenging the sufficiency of DWR’s EIR. (County of Butte, supra, 13 Cal.5th at p.
625.) Plumas County and Plumas County Flood Control and Water Conservation District
filed one of the writ petitions; Butte County filed the other. (Ibid.) Both petitions named
DWR as respondent and named, among others, State Water Contractors, Inc.; Alameda
County Flood Control and Water Conservation District, Zone 7; Kern County Water
Agency; San Bernardino Valley Municipal Water District; Santa Clara Valley Water
District; and the Metropolitan Water District of Southern California (collectively, SWC)
as real parties in interest.
The Counties raised four principal arguments in the trial court. They alleged the
EIR evaded analysis of climate change, failed to properly evaluate fiscal impacts to Butte
County and public health impacts from toxic contaminants, wrongly assumed that current
6
facility operations comply with water quality standards, and failed to account for
potential changes to the SWP that could affect Oroville Facilities operations. The
Counties asked the trial court to set aside DWR’s EIR, to enjoin DWR from proceeding
with the relicensing, and to award them fees and costs.
The trial court rejected the Counties’ arguments, finding each of their arguments
failed on the merits. In our initial review following the Counties’ appeal, we found their
claims were largely preempted by the Federal Power Act. (County of Butte, supra, 13
Cal.5th at p. 619.) But our Supreme Court vacated our decision and asked us to
reconsider in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3
Cal.5th 677. (County of Butte, at p. 619.) We then considered the case again and again
reached the same conclusion. (Ibid.) After our Supreme Court took up the case a second
time, it affirmed in part and reversed in part. While it agreed the Counties could not
challenge the environmental sufficiency of the settlement agreement or seek to unwind it,
it found they could still challenge the sufficiency of DWR’s EIR. (Id. at p. 637.) It thus
remanded the matter to our court for further consideration. (Ibid.)
DISCUSSION
I
CEQA Background
CEQA serves “to ensure that public agencies will consider the environmental
consequences of discretionary projects they propose to carry out or approve.” (Stockton
Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488.) To that
end, absent an exemption, an agency proposing to carry out or approve a project
generally must conduct an initial study to determine “if the project may have a significant
7
effect on the environment.” (Cal. Code. Regs., tit. 14, § 15063, subd. (a).)1 “If, after
performing an initial study, the agency responsible for CEQA compliance, referred to as
the ‘lead agency,’ finds substantial evidence that a project may have a significant
environmental impact, the agency must prepare and certify an EIR before approving or
proceeding with the project.” (County of Butte, supra, 13 Cal.5th at p. 627.)
An EIR, as courts have often said, is “ “ ‘the heart of CEQA.” ’ ” (Cleveland
National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497,
511 (Cleveland National Forest Foundation).) It serves to “(1) inform the government
and public about a proposed activity’s potential environmental impacts; (2) identify ways
to reduce, or avoid, those impacts; (3) require project changes through alternatives or
mitigation measures when feasible; and (4) disclose the government’s rationale for
approving a project.” (Protecting Our Water & Environmental Resources v. County of
Stanislaus (2020) 10 Cal.5th 479, 488.) To fulfill these purposes, an “EIR ‘must include
detail sufficient to enable those who did not participate in its preparation to understand
and to consider meaningfully the issues raised by the proposed project.’ ” (Cleveland
National Forest Foundation, at p. 511.) But that does not mean an EIR must be
exhaustive on all topics. Courts look “ ‘not for perfection but for adequacy,
completeness, and a good faith effort at full disclosure.’ ” (In re Bay-Delta etc., supra,43 Cal.4th at p. 1175.)
In reviewing an agency’s compliance with CEQA, courts review for abuse of
discretion. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512 (Sierra Club).)
Courts will find an agency abused its discretion if it either failed to proceed in a manner
required by law or reached a decision not supported by substantial evidence. (Ibid.)
1 California Code of Regulations, title 14, sections 15000-15387 are ordinarily referred
to as the CEQA Guidelines. We will use that shorthand to refer to these regulations
going forward.
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“ ‘Judicial review of these two types of error differs significantly: While we determine
de novo whether the agency has employed the correct procedures, “scrupulously
enforc[ing] all legislatively mandated CEQA requirements” [citation], we accord greater
deference to the agency’s substantive factual conclusions. In reviewing for substantial
evidence, the reviewing court “may not set aside an agency’s approval of an EIR on the
ground that an opposite conclusion would have been equally or more reasonable,” for, on
factual questions, our task “is not to weigh conflicting evidence and determine who has
the better argument.” ’ ” (Ibid.)
“This distinction between de novo review and substantial evidence review is often
straightforward. A contention that an agency has, for example, provided an insufficient
amount of time for public comment is subject to de novo review. And a contention that
an agency’s factual findings are wrong, as a different example, is subject to substantial
evidence review. But questions about the relevant standard of review are not always so
clear.” (Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, 95.) “This is
especially so when the issue is whether an EIR’s discussion of environmental impacts is
adequate, that is, whether the discussion sufficiently performs the function of facilitating
‘informed agency decisionmaking and informed public participation.’ ” (Sierra Club,
supra, 6 Cal.5th at p. 513.) Those types of “inquir[ies] present[] a mixed question of law
and fact” and are “generally subject to independent review.” (Id. at p. 516; see id. at p.
514 [“whether a description of an environmental impact is insufficient because it lacks
analysis or omits the magnitude of the impact is not a substantial evidence question”].)
But if “factual questions predominate, a more deferential standard is warranted.” (Id. at
p. 516.)
With those principles in mind, we turn to the Counties’ arguments.
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II
Climate Change
A. The EIR’s Climate Change Discussion
The Counties first challenge DWR’s discussion of climate change. They contend
DWR should have discussed climate change’s potential effects on hydrologic conditions
in the Feather River basin over the proposed 50-year licensing term, discussed how these
potential effects could potentially alter project operations, and discussed how these
potential alterations to project operations could potentially impact the environment. We
reject their argument.
DWR covered climate change and its potential impacts on project operations in its
EIR. Starting with a general discussion of climate change, DWR stated, among other
things, that “most scientists agree that some warming has occurred over the past century”
and that “[t]he United Nations Intergovernmental Panel on Climate Change [IPCC]
predicts that changes in the Earth’s climate will continue through the 21st century and
that the rate of change may increase significantly in the future because of human
activity.” Turning to climate change’s potential impacts on project operations, DWR
acknowledged that climate change could affect operations. It stated, for example, that
climate change could alter the timing of inflows into Lake Oroville.
But in the end, DWR found potential project operation changes necessitated by
climate change too uncertain to evaluate. Citing several different reports in the record, it
noted that “there is a significant amount of uncertainty over the magnitude of climate
change that will occur over this century” and “also uncertainty about changes in
hydrologic conditions, aquatic ecosystems, and water demand that could occur as the
result of various amounts of climate change.” It then wrote: “Given the current
quantitative uncertainties regarding climate change and its potential effects on California,
particularly local effects of climate change and potential impacts on the Feather River
watershed, any discussion of potential changes to operations of the Oroville Facilities
10
necessitated by climate change would be speculative at this time.” DWR elsewhere in
the EIR added that “no generally accepted standards exist regarding the assumptions
required to model the effects of potential global climate change” and that “it would be
speculative to further analyze potential future operations under purely hypothetical
climate change scenarios beyond the current level of analysis.”
The record supports DWR’s findings. Consider, for instance, an article titled,
“Climate Change Impacts Uncertainty for Water Resources in the San Joaquin River
Basin, California” (Climate Change Impacts Uncertainty). The article’s authors—a U.C.
Berkeley engineering professor, two U.C. Berkeley scientists, a U.C. Berkeley post-
doctoral researcher, and a water resources modeler with the United States Bureau of
Reclamation—discussed two models simulating potential global and regional climate
impacts. One model “suggests much wetter future conditions relative to present climate,
whereas [the other model] suggests drier future conditions.” Considering these
“divergent and equiprobable” projections, the authors concluded that “[t]he range of
possibilities suggested by these impacts is too vast to support selection of mitigation
projects in current planning cycles.” Complicating matters, the authors added that
different regions could face very different impacts, as “it is well recognized that regional
climate changes are expected to vary significantly as global climate change evolves.”
DWR, in its 2005 report titled, “California Water Plan Update,” offered similar
conclusions. A publication included in the report stated: “[W]hile modeling of projected
temperature changes is broadly consistent across most modeling efforts, there are
disagreements about precipitation estimates. Considerable uncertainties about precise
impacts of climate change on California hydrology and water resources will remain until
we have more precise and consistent information about how precipitation patterns,
timing, and intensity will change.” Along the same lines, the publication further noted
that “regional and local changes in hydrological conditions attributable to a greenhouse
warming are uncertain.” It added, commenting on California generally, that research
11
“suggests that there is a risk of increased flooding in California.” But even then, it
qualified its response, stating that “flooding depends not only on average precipitation
but on the timing and intensity of precipitation—two characteristics not well modeled at
present.”
Later, in a 2006 report titled, “Progress on Incorporating Climate Change into
Management of California’s Water Resources” (Progress Report), DWR stated much of
the same. It found that “[c]limate model projections for changes in total annual
precipitation in California through the end of this century are mixed”—some predict
moderate decreases in precipitation, others predict moderate increases in precipitation. It
also found these models “generally not well suited for predicting regional changes in
precipitation due to their coarse discretization compared to the scale of regionally-
important factors that affect precipitation.” And although DWR acknowledged “climate
change could cause significant impacts on California’s water resources and water
demand,” it ultimately found “uncertainty about the magnitude of climate change that
will occur over this century,” uncertainty in some cases about “the nature of future
changes,” and “uncertainty about changes in hydrologic conditions, aquatic ecosystems
and water demand that could occur as the result of various amounts of climate change.”
Considering these documented uncertainties at the time of the EIR, and
particularly the uncertainties about local impacts in the Feather River basin, we find
DWR reasonably concluded that “any discussion of potential changes to operations of the
Oroville Facilities necessitated by climate change would be speculative at this time.” We
also find that, after reaching this conclusion, DWR had no need to pursue the matter
further. As CEQA Guidelines section 15145 provides, “[i]f, after thorough investigation,
a lead agency finds that a particular impact is too speculative for evaluation, the agency
should note its conclusion and terminate discussion of the impact.” DWR complied with
this provision. (See Citizens’ Committee to Complete the Refuge v. City of Newark
(2021) 74 Cal.App.5th 460, 479 [a city did not need to evaluate its potential responses to
12
rising sea levels 50 to 80 years in the future, in part because “the range of projections for
sea levels by that time are wide and sea levels at different ends of those projections could
warrant significantly different responses”].)
None of this, however, is to say that DWR could reach this same conclusion today.
As our Supreme Court has explained in a similar context, CEQA requires public agencies
to ensure their analyses “stay in step with evolving scientific knowledge and state
regulatory schemes.” (Cleveland National Forest Foundation, supra, 3 Cal.5th at p.
504.) And so an agency’s approach that is legally adequate at one point in time may not
“necessarily be sufficient going forward.” (Ibid.) But here, considering the information
available at the time of the EIR in 2008, we find DWR reasonably concluded that the
potential impacts were too speculative to warrant further evaluation. (See Marin Mun.
Water Dist. v. KG Land California Corp. (1991) 235 Cal.App.3d 1652, 1662 [when the
nature of future changes are “nonspecific and uncertain, an EIR need not engage in ‘sheer
speculation’ as to future environmental consequences”]; cf. Turtle Island Restoration
Network v. U.S. Dept. of Commerce (9th Cir. 2017) 878 F.3d 725, 740 (Turtle Island)
[rejecting challenge to a federal agency’s finding “that climate change effects could not
be ‘reliably quantified’ nor ‘qualitatively described or predicted’ by the agency at the
time”].)2
2 SWC contends the Counties’ argument also fails because “[a]n EIR is not required to
analyze the potential future effects of climate change on the project.” (See California
Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th
369, 387 [CEQA’s “relevant provisions are best read to focus almost entirely on how
projects affect the environment,” not how the environment affects projects].) But as the
Counties note, and as the trial court found, they are not merely arguing that DWR needed
to consider climate change’s effects on the project; they are instead arguing that DWR
needed to consider the project’s effects on the environment under future climate change
conditions.
13
B. The Counties’ Challenge to the EIR’s Discussion
Although the Counties challenge DWR’s finding for various reasons, we find none
of their arguments persuasive.
1. Reports Discussing Climate Change
First, the Counties argue that DWR failed to disclose scientific authorities
rejecting its findings on climate change. They add that the propriety of this omission is a
question of law subject to de novo review, not a question of fact subject to substantial
evidence review. But none of the Counties’ cited authorities undermine DWR’s
conclusion.
One cited authority is a draft report from 2003. As the Counties explain, the
authors encouraged water managers to try to understand the potential consequences of
climate change on water resources. They reasoned that “reliance on the past record now
may lead us to make incorrect—and potentially dangerous or expensive—decisions.”
Another cited authority, DWR’s 2005 California Water Plan Update, included a finalized
version of the 2003 report and so stated the very same. It also, as the Counties note,
included an article from a DWR hydrologist who encouraged further evaluation of
climate change’s effects on precipitation. He wrote that better modeling accounting for
climate change “must be developed at the watershed level for a representative set of
future scenarios,” that this modeling “will require help from the research community,”
and that better hydrologic monitoring over “many years” would improve this modeling.3
3 The hydrologist added that some “[n]ew or upgraded temperature modeling is being
developed as part of the Oroville power plant relicensing project.” But the record
indicates that this new modeling had not yet been developed at the time of the EIR. The
EIR stated: “Because only limited data and tools exist to provide answers to important
questions for decision makers, water managers, and resource planners, DWR is working
in conjunction with others to develop a new analytical approach for the preparation of the
California Water Plan 2010.”
14
But the Counties never acknowledge that both these authorities ultimately
recognized significant uncertainties in this area. Both authorities stated: “Considerable
uncertainties about precise impacts of climate change on California hydrology and water
resources will remain until we have more precise and consistent information about how
precipitation patterns, timing, and intensity will change. Some recent regional modeling
efforts conducted for the western United States indicate that overall precipitation will
increase . . . but considerable uncertainty remains due to differences among larger-scale
[modeling efforts].” The cited DWR hydrologist added: “Regional precipitation
predictions in the huge general circulation models of the atmosphere have not been
reliable, and vary greatly among the different models. As a general rule, a warmer world
would mean more evaporation, hence more precipitation overall. But where and when
the precipitations falls is all-important.”
Apart from failing to acknowledge these details, the Counties also mischaracterize
DWR’s 2005 California Water Plan Update. They characterize the report as stating that
“the Oroville facilities will be able to generate less [hydro]power” because of climate
change. (Italics added.) But it says no such thing. It instead explained that climate
change could decrease hydropower generation under some scenarios but also could
increase hydropower generation under other scenarios. It then noted that “[m]ore
sophisticated studies . . . are necessary for California.” Far from confirming the impacts
the Counties envision, DWR’s report instead emphasizes the uncertainties in this area.
The Counties’ other cited authorities are also less helpful than the Counties
believe. One, for instance, explained that a “[r]ecent scientific study suggests that
projected climate changes would affect hydrologic conditions in the [Sacramento River
and San Joaquin River basins]” and so recommended that water planners consider the
ability to adapt to changing climate conditions. But this authority included only a one-
paragraph discussion on climate change and noted that “specific estimates of these
changes have not been quantified.” Another cited authority—“From Climate-Change
15
Spaghetti to Climate-Change Distributions for 21st Century California” (Climate-Change
Spaghetti)—stated that “the projected changes include sufficiently important near-term
impacts, and the chances that projection uncertainties will decline precipitously in the
near term are small enough, so that delays [in accounting for climate change] may not be
warranted.” But this authority, like the others, emphasized the uncertainties in this area,
stating: “Projections of climate change due to increasing greenhouse-gas concentrations
in the 21st Century are inevitably uncertain because of the chaotic nature of the global
climate system, because of model imperfections, and because of uncertainties regarding
what path mankind’s emissions of greenhouse gases and other atmospheric contaminants
will follow in the future.”4
In sum, none of the Counties’ cited authorities undermine DWR’s finding of
uncertainty. And while true that DWR did not discuss each of these authorities in its
EIR, it still conveyed the same type of information. It generally acknowledged the
potential impacts of climate change. It acknowledged its past reports discussing climate
change and water management, including the 2005 California Water Plan Update and
2006 Progress Report. And it acknowledged that some commenters believed that
“climate change is a reasonably foreseeable future condition that should be taken into
account in the modeling done to simulate future Project operations.” But again,
consistent with expert findings in the record, DWR ultimately found that “any discussion
of potential changes to operations of the Oroville Facilities necessitated by climate
change would be speculative at this time.”
4 The Counties also cite a law review article prepared years after the EIR that argued
agencies should not assume that past hydrologic variability is a good predictor of future
hydrologic variability under a changing climate. But our focus is on the record at the
time of the project, not extra record materials prepared after the project. (CEQA
Guidelines, § 15162, subd. (c) [“Information appearing after an approval does not require
reopening of that approval”].)
16
On this record, we are satisfied that the EIR “ ‘include[d] detail sufficient to
enable those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ ” (Cleveland National Forest
Foundation, supra, 3 Cal.5th at p. 511.) That was enough. The Counties may have
preferred a longer discussion about the potential impacts of project changes caused by
climate change, but the CEQA Guidelines favor a different approach, explaining: “If,
after thorough investigation, a lead agency finds that a particular impact is too speculative
for evaluation, the agency should note its conclusion and terminate discussion of the
impact.” (CEQA Guidelines, § 15145; see Laurel Heights Improvement Assn. v. Regents
of University of California (1988) 47 Cal.3d 376, 411-412 [“An agency cannot be
expected to predict . . . exactly what information scientific advances may ultimately
reveal”]; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 77, fn. 5 [“an impact
statement prepared before reliable information is available would ‘tend toward
uninformative generalities’ ”].)
2. Efforts to Quantify Climate Change Impacts
Second, in a related argument, the Counties contend scientific authorities in the
record show that climate change modeling is not speculative. They reason that various
experts, including DWR in its 2006 Progress Report and those who authored the Climate
Change Impacts Uncertainty article, used the same hydrologic modeling system that
DWR used in the EIR here, “and modified some of the input data (reservoir inflows and
hydrologic year types) to account for climate change.” The Counties claim that these
reports, and particularly the 2006 Progress Report, provide “everything that DWR would
have needed to undertake the requisite climate change analysis for the Oroville
Facilities.”
Although both DWR in its 2006 Progress Report and the authors of the Climate
Change Impacts Uncertainty article attempted to model climate change impacts, both still
acknowledged various uncertainties that undermined the accuracy of their projections.
17
The authors of the Climate Change Impacts Uncertainty article, for example, explained
that they used only two global climate models, not the 19 the IPCC referenced, and that
their results “represent[ed] only a small portion of the climate change possibilities
described in” a 2001 IPCC report, as they considered only one emissions scenario, not the
many the IPCC described. They also noted other issues affecting the accuracy of their
results. First, they explained that their modeling ignored future land use changes, which,
they wrote, could “compound the impacts uncertainties already attributable to the CO2
increase scenario, climate modeling approach, and other operations assumptions.”
Second, they suggested that their downscaling of the results from the two global climate
models to the local level further “compounded” the “[u]ncertainties.” Apart from those
issues, moreover, the authors acknowledged the difficulty of using their modeling results
in current planning cycles, as their modeling provided “divergent and equiprobable”
projections.
DWR—which also used two climate change models in “an initial attempt” to
quantify climate change impacts—acknowledged similar issues in its 2006 Progress
Report. It stated: “All results presented in this report are preliminary, incorporate several
assumptions, reflect a limited number of climate change scenarios, and do not address the
likelihood of each scenario.” DWR also noted that its models’ precipitation predictions
could not be considered reliable. It explained that “neither model accurately reproduces
historical precipitation variability” and that, “[b]ecause of this, future variability
represented by the model[s] can not be considered reliable.” As covered earlier,
moreover, DWR emphasized the uncertainties in predicting climate change’s effects,
particularly at the local level. It acknowledged “great uncertainty in the magnitude,
timing, and location of precipitation and runoff changes associated with climate change”;
acknowledged that different climate models reach conflicting results about changes in
precipitation; and explained that these models are generally not well suited for predicting
regional changes in precipitation.
18
The Counties never acknowledge these limitations when making their claims—
which is arguably reason enough to reject their arguments. (See South County Citizens
for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330 [“ ‘appellant
challenging an EIR for insufficient evidence must lay out the evidence favorable to the
other side and show why it is lacking’ ”; “ ‘[f]ailure to do so is fatal’ ”].) Nor do they
acknowledge that DWR, in its 2006 Progress Report, repeatedly cautioned that its
modeling “results are not sufficient by themselves to make policy decisions”—which is
far from the Counties’ current claim that this report provided “everything that DWR
would have needed to undertake the requisite climate change analysis for the Oroville
Facilities.” Nor, lastly, do they acknowledge that DWR, in its EIR here, discussed the
2006 Progress Report and expressly noted its limitations, stating that the “report
explicitly cautions” that “ ‘the results are not sufficient by themselves to make policy
decisions’ ” and that “all results presented are ‘preliminary, incorporate several
assumptions, reflect a limited number of climate change scenarios, and do not address the
likelihood of each scenario.’ ”
The Counties also cite another article, Climate-Change Spaghetti, which they
assert shows DWR could have accurately accounted for climate change. But this article
too, which we briefly mentioned earlier, is less helpful than the Counties believe. The
author of the article noted that scientists often graph the predictions of multiple climate
change models on a single graph, with different plotted lines representing the different
modeled predictions over time. But according to the author, a better approach would
graph probability distributions, with different plotted lines representing “the probability
of obtaining a given simulation of climate change” for a given year. So, for instance, one
plotted line might show that by 2025 two percent of climate models used simulated no
temperature increase, 10 percent simulated an increase of one degree Celsius, one percent
simulated an increase of three degrees Celsius, and so on.
19
None of this, however, meaningfully advances the Counties’ position. While the
author of this article favored consideration of climate change’s potential impacts and
believed his offered approach would better depict data from multiple climate change
simulations, he still acknowledged the many uncertainties in this area. He stated, for
example, that climate change projections are inevitably uncertain and that this uncertainty
is unlikely to disappear any time soon. DWR even cited this conclusion in its EIR,
stating that, “according to [the author of Climate-Change Spaghetti], it is unlikely that the
level of uncertainty will diminish significantly in the foreseeable future.”
In sum, the Counties’ referenced materials tend to show that most scientists in
2008 believed that the global climate is changing and will continue to change because of
past and future greenhouse gas emissions. They further show that several experts at that
time believed steps should be taken in the near term to prepare for potential hydrologic
changes attributable to climate change. But even so, at least at the time of the EIR, not
even these experts believed that climate change’s impacts on local hydrologic conditions
could be accurately forecasted. As the trial court put it, “[i]t is a long step from the
relatively generalized climate change data in the record to the project-specific forecasting
demanded here, and [the Counties] have not carried their burden of showing that DWR
could reasonably have taken this step.”
3. DWR’s Other EIRs
Third, the Counties contend the EIR failed to “disclose the department’s own
contemporaneous rejection in other major EIRs of sole reliance on twentieth-century
hydrology.” (Capitalization omitted.) But we find this argument too falls short.
Although neither of these referenced EIRs appears to be part of the record, DWR
staff referred to them in internal e-mails. In one e-mail chain, a DWR employee
described the climate change discussion in the “EIR/EIS for the Proposed Lower Yuba
River Accord.” Based on a “very quick[] look,” the employee wrote, “it looks like they
did some calculations to determine potential changes to inflow” from climate change and
20
found a potential 10 percent decrease in the “extreme case.” But the Counties cite
nothing to confirm that this initial read based on a “very quick[] look” was accurate. Nor
have they shown that the referenced “extreme” projection was nonspeculative. And even
setting all that aside, the Counties have not even shown that DWR played any role in
preparing this document, and we decline to assume, as the Counties do, that it did. (See
Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“if it is not in
the record, it did not happen”].)
In another e-mail chain, a DWR employee wrote that DWR appeared to take
inconsistent “approaches in the Monterey EIR and the Oroville EIR.” The employee
based his comment on a document that he attached to his e-mail, though it is unclear who
prepared this document. The document explained that in the draft Oroville EIR—that is,
the EIR here—DWR declined to adjust projected hydrologic conditions over the next 50
years to account for climate change. But according to the document, in the draft
Monterey EIR, DWR concluded “that future water planning can no longer rely on
historical hydrologic patterns alone, but must recognize potential changes, trends and
future conditions expected as part of ongoing climate change in the State.” According to
the Counties, “it is impossible to reconcile these two perspectives.”
But two considerations undermine the Counties’ position. First, even in the
Monterey EIR, as described in the attached document, DWR still struggled to predict the
effects of climate change on hydrologic conditions. DWR purportedly found there could
be an increase of up to 10 percent in the long-term average of SWP supplies to SWP
contractors because of climate change. But it also purportedly found there could instead
be a decrease of up to 10 percent in these supplies. And no scenario, as far as we can tell,
was more likely than the other. We are left, then, with a conclusion not altogether
different than DWR’s conclusion here that climate change’s effects on hydrologic
conditions, particularly at the local level, are uncertain.
21
Second, and more importantly, the Counties’ failure to provide any description of
the Monterey project makes it difficult to compare these two EIRs. As other cases
demonstrate, agencies can reach different conclusions about the foreseeability of climate
change impacts in different contexts. (Compare Turtle Island, supra, 878 F.3d at p. 740
[accepting agency’s finding, in an opinion involving certain turtle species, that climate
change effects could not be reasonably determined] with Alaska Oil & Gas Assn. v.
Jewell (9th Cir. 2016) 815 F.3d 544, 558-559 [accepting agency’s finding, in an opinion
involving polar bears, that climate change effects could be reasonably determined].) So
while DWR might have thought it best to account for climate change effects in the
Monterey EIR, that does not necessarily show that DWR’s approach here was altogether
inconsistent. Lacking little detail about the substance of the Monterey EIR, we are
unpersuaded that DWR’s failure to discuss this separate EIR requires reversal.
4. Federal Case Law
Fourth, the Counties contend DWR’s conclusion is inconsistent with federal case
law discussing climate change, including Natural Resources Defense Council v.
Kempthorne (E.D.Cal. 2007) 506 F.Supp.2d 322 (NRDC), Pacific Coast Federation of
Fishermen’s v. Gutierrez (E.D.Cal. 2008) 606 F.Supp.2d 1122 (Pacific Coast),
Appalachian Voices v. U.S. Department of Interior (4th Cir. 2022) 25 F.4th 259, Wild
Fish Conservancy v. Irving (E.D.Wn. 2016) 221 F.Supp.3d 1224, and AquAlliance v. U.S.
Bureau of Reclamation (E.D.Cal. 2018) 287 F.Supp.3d 969. But in each of these cases, a
federal agency largely ignored data on climate change.
In NRDC, for instance, the district court indicated that a federal agency might be
able to “rationally discount[]” information on climate change’s potential effect on
precipitation “because of its inconclusive nature.” (NRDC, supra, 506 F.Supp.2d at p.
369.) But because the agency before it never meaningfully discussed the topic, the court
found it “impossible to determine whether the information was rationally discounted
because of its inconclusive nature, or arbitrarily ignored.” (Ibid., fn. omitted.) In Pacific
22
Coast, similarly, the same district court faulted a federal agency for its “total failure to
address, adequately explain, and analyze the effects of global climate change on the
species.” (Pacific Coast, supra, 606 F.Supp.2d at p. 1184.)
The remaining cited cases are similar. In Appalachian Voices v. U.S. Department
of Interior, supra, 25 F.4th 259, the Fourth Circuit found an agency’s single sentence on
climate change insufficient, particularly since the agency “never mention[ed] climate
change in connection” with an endangered species, even “though other documents in the
record suggest[ed] climate change poses a ‘persistent threat’ to the” species. (Id. at pp.
276-277.) In Wild Fish Conservancy v. Irving, supra, 221 F.Supp.3d 1224, the district
court faulted an agency for relying on recent historical streamflow data for modeling
without any “discussion whatsoever of the potential effects of climate change.” (Id. at p.
1233.) The court added that the agency “does not necessarily need to conduct a study or
build a model addressing the impacts of climate change,” but it at least must consider the
best available science on the topic. (Id. at p. 1234.) Lastly, in AquAlliance v. U.S.
Bureau of Reclamation, supra, 287 F.Supp.3d 969, the court described the same general
type of problem identified in Wild Fish Conservancy—the agency failed to consider the
best available data on climate change. (Id. at pp. 1031-1032.)
The Counties, however, have not shown that the EIR here suffers from these same
shortcomings. They never show that DWR failed to consider the best available data on
climate change at the time of the EIR. Nor have they shown that DWR failed to
rationally explain its decision. And to the extent the Counties read these decisions to
forbid an agency from finding some climate change impacts too speculative to evaluate,
they are wrong. The NRDC court, as covered, indicated a federal agency might be able to
“rationally discount[]” information on climate change “because of its inconclusive
nature.” (NRDC, supra, 506 F.Supp.2d at p. 369.) And since then, the Ninth Circuit in
Turtle Island accepted a federal agency’s 2012 finding that some climate change impacts
are too speculative to evaluate.
23
In Turtle Island, a federal agency considered the potential effects of climate
change on certain turtle species protected under the Endangered Species Act. (Turtle
Island, supra, 878 F.3d at p. 740.) But the agency ultimately, in a 2012 opinion,
“determined that there was no available data from which it could credibly project the
impacts that climate change would have on . . . turtle survival rates.” (Ibid.) It explained,
among other things, that “the effects of climate change will not be globally uniform, and
the uncertainty of the rate, magnitude, and distribution of such effects on different
temporal and spatial scales—not to mention the turtles’ ability to adapt to these effects—
have not been comprehensively studied.” (Ibid.) The agency thus “decided that climate
change effects could not be ‘reliably quantified’ nor ‘qualitatively described or predicted’
by the agency at the time.” (Ibid.) Although several parties believed this discussion
inadequate, the Ninth Circuit rejected their challenge. It found the “[p]laintiffs have
failed to sufficiently refute the [agency’s] stated inability to offer more specific
predictions on the effects of climate change, and they have not alleged that less
speculative scientific information is available that the agency overlooked.” (Ibid.)
Considering all these federal authorities, we find Turtle Island—not the Counties’
cited authorities—most relevant here. Similar to the Ninth Circuit in Turtle Island, we
find the Counties have neither refuted DWR’s stated inability to offer more specific
predictions on climate change, nor shown that less speculative scientific information was
available that DWR overlooked.
5. California Case Law
Lastly, on the topic of climate change, the Counties contend DWR’s conclusion is
inconsistent with California case law—namely, our court’s decision in Voices for Rural
Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096. That case involved a
challenge to an irrigation district’s claimed exemption from CEQA for its decision to
provide water to a casino. (Id. at p. 1100.) In evaluating the applicability of the claimed
exemption, we considered whether there was “substantial evidence of a reasonable
24
possibility that increasing the delivery of [the district’s] water to [the casino] may have a
significant effect on the environment.” (Id. at p. 1110.) We found there was, reasoning
that a scientific analysis in the record showed that, with climate change, a future drought
plausibly could cause these deliveries to have a significant effect—an issue that the
irrigation district never considered. (Id. at p. 1112.) For that reason, we rejected the
district’s claim that its project was exempt from CEQA. (Id. at p. 1113.)
But this case is both factually and legally different. It is factually different
because while the irrigation district in Voices for Rural Living ignored climate change,
DWR did not do the same here. It is also legally different because of the very different
standard of review it applied. In cases comparable to Voices for Rural Living, a lead
agency’s decision will be set aside if substantial evidence exists that the project would
have a significant effect on the environment—even if substantial evidence also supports
the lead agency’s contrary finding that the project would not have a significant effect on
the environment. (Voices for Rural Living v. El Dorado Irrigation Dist., supra, 209
Cal.App.4th at p. 1108.) But in cases challenging an EIR, the standard is far more
deferential. An EIR, for example, may not be set aside simply because an opposite
factual finding “ ‘ “would have been equally or more reasonable,” for, on factual
questions, our task is “not to weigh conflicting evidence and determine who has the better
argument.” ’ ” (Sierra Club, supra, 6 Cal.5th at p. 512.) Because we find Voices for
Rural Living inapposite for these reasons, we reject the Counties’ reliance on it.5
5 Because we reject the Counties’ challenge to DWR’s finding that “any discussion of
potential changes to operations of the Oroville Facilities necessitated by climate change
would be speculative at this time,” we also reject their related challenge to DWR’s
refusal to consider alternatives and mitigation measures concerning these potential
changes.
25
III
Historical Hydrologic Conditions
The Counties next contend DWR failed to model project operations using the full
range of 20th-century hydrologic conditions—an issue they first raised in their reply brief
in the trial court. They state that the EIR noted historical annual flows as low as 994,460
acre-feet in 1977 and as high as 9,492,400 acre-feet in 1907, but it then only purported to
model project performance using data from 1922 to 1994—a timeframe that improperly
omitted the historical high flow in 1907. They further argue that the EIR “apparently also
excluded analysis of the twentieth century’s historical low flow of 1977—994,460 acre-
feet.” Lastly, they assert that DWR, rather than model project operations using actual
historical flow data, wrongly modeled project operations using hypothetical flow data
under a fictitious scenario that included no upstream storage or diversion operations. We
reject their arguments.
We start with DWR’s alleged failure to include the historical low flow of 1977 in
its modeling. Portions of the EIR, it is true, suggest that DWR excluded that year’s data
from its modeling. The final EIR, for instance, said the measures in the settlement
agreement “were all developed and formulated to be effective under an extremely broad
hydrologic range (1.7-10 million acre-feet of annual inflow to Lake Oroville).” But as
the Counties point out, the low flow in 1977 was well below 1.7 million acre-feet. And
as the Counties also point out, the EIR elsewhere characterized the range of 1.7 to 10
million acre-feet as the range from 1979 to 1999.
But even so, consideration of the whole of the EIR shows that DWR accounted for
1977 in its modeling. The EIR explained: “Extensive operations modeling performed in
support of both the Preliminary Draft Environmental Assessment (PDEA) and subsequent
[draft ]EIR . . . analyz[ed] 73 different inflow years into Lake Oroville.” The EIR
elsewhere explained that DWR analyzed these 73 different inflow years using historical
26
data—namely, the data from 1922 to 1994—and the record includes the EIR’s modeling
results for this timeframe.
While the Counties maintain that DWR’s own staff e-mails show that DWR
excluded the 1977 water year from its analysis, we find their reliance on these e-mails
misplaced. In one e-mail, a DWR staff member e-mailed a consultant about the cited
range of 1.7 to 10 million acre-feet. He wrote: “The text originally said this was from
1979-2000, but shouldn’t we be citing the longer . . . 74 year data set?” In a separate e-
mail, another employee asked whether DWR should “cite the 1.7 [million acre-feet] to 10
[million acre-feet] annual inflow range modeled” when discussing the range of inflows
already modeled. And in an attachment to a third e-mail, DWR staff stated that DWR
modeled project operations using a range of “1.7 [million acre-feet] to 10 [million acre-
feet] of annual inflow to Lake Oroville.”
But while these e-mails perhaps show some confusion about the relevant figures
for the 73-year data set—that is, the data set covering 1922 to 1994—they do not show
that DWR failed to conduct modeling for these years. Again, the record confirms that
DWR used these 73 different inflow years for its modeling. And while the Counties’
citations to a few internal e-mails may raise questions when considered alone, we cannot
ignore, as the Counties have, DWR’s actual modeling results covering 1922 to 1994.
We turn next to DWR’s alleged failure to include the historical high flow in 1907
in its modeling. Although it appears true that DWR did not account for this year in its
modeling, the Counties never explain why that was a fatal flaw considering the whole of
the EIR’s findings. According to the EIR, “the current calculated [probably maximum
flood] peak inflow to Lake Oroville is more than double the highest recorded historic
flow on the Feather River.” The EIR further indicated that the highest recorded historic
flow was 10 million acre-feet—which is even above the high flow in 1907. The EIR,
then, may not have included data from 1907 in its modeling, but it still explained why the
Oroville Facilities could withstand flows comparable to (and even far higher than) those
27
in 1907. The Counties never explain why this reasoning was flawed. Nor have they
shown that more modeling was necessary under these circumstances.
The Counties’ argument, moreover, suffers from a more fundamental defect:
They have not shown that they, or any other commenter, even raised this issue in the
administrative proceedings. Under CEQA’s exhaustion requirement, a person cannot
challenge a CEQA decision in court on an alleged ground that was never presented to the
public agency in the administrative proceedings. (Pub. Resources Code, § 21177, subd.
(a); see also Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, 1104
[“ ‘ “to attack a decision that is subject to CEQA, the alleged grounds for noncompliance
must have been presented to the public agency” ’ ” with “ ‘ “sufficient[] specific[ity] so
that the agency has the opportunity to evaluate and respond” ’ ”].) This requirement is
known as the exhaustion doctrine and serves “ ‘ “ ‘to lighten the burden of overworked
courts in cases where administrative remedies are available and are as likely as the
judicial remedy to provide the wanted relief.’ ” ’ ” (Tomlinson v. County of Alameda
(2012) 54 Cal.4th 281, 291.)
In this case, no public commenter in the administrative proceedings, as far as we
can find, raised the Counties’ current claim that DWR should have modeled project
operations using a historical data set broader than the 1922-1994 data set. Although the
Counties cite over 70 pages in the record that they claim show otherwise, we find nothing
in these pages helpful. Many of the Counties’ cited pages discuss topics having nothing
to do with the range of hydrologic conditions, including mercury levels and meadow
restoration projects. And while some of the cited pages have some connection to the
range of hydrologic conditions—including those pages asking DWR to consider climate
change’s effects on future hydrologic conditions—they do not fairly apprise DWR of its
alleged failure to use a historical data set broader than the 1922-1994 data set. Because
no commenter properly raised this issue in the administrative proceedings, the Counties
cannot raise the issue now. (Pub. Resources Code, § 21177, subd. (a).)
28
Lastly, we turn to the Counties’ concern that DWR modeled project operations
using hypothetical flow data rather than actual historical flow data. The Counties base
their point on a single sentence in the EIR referencing unimpaired, rather than impaired,
flows. We find their concern unfounded. The record shows that DWR modeled based on
73 years of historical data—not 73 years of hypothetical data.
IV
Local Impacts
Next, the Counties contend DWR failed to properly evaluate and mitigate two
types of local impacts: (1) fiscal impacts to Butte County from increased demand for
public services, and (2) public health impacts from mercury and bacteria in the waters of
the Oroville Facilities. We reject both arguments.
A. Fiscal Impacts
We start with the alleged fiscal impacts.
An agency’s EIR must, as relevant here, describe “[a]ll significant effects on the
environment of the proposed project.” (Pub. Resources Code, § 21100, subd. (b)(1).)
Under this requirement, an agency must consider the economic effect of a project if the
effect contributes to, or is caused by, a physical change in the environment. (CEQA
Guidelines, § 15064, subd. (e).) To give an example of an application of this rule, the
court in Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985)
172 Cal.App.3d 151 found a county needed to consider whether a shopping center, in
potentially leading to the closure of competing businesses in a downtown area, could
cause “physical deterioration of the downtown area.” (Id. at pp. 170-171.)
An agency, however, need not discuss economic effects lacking the requisite
connection to a physical change in the environment, for an economic effect in itself is not
a significant effect on the environment. (CEQA Guidelines, §§ 15064, subd. (e)
[“Economic and social changes resulting from a project shall not be treated as significant
effects on the environment”], 15131, subd. (a) [same].) As one court has put it in
29
describing this rule, “CEQA is not an economic protection statute.” (Porterville Citizens
for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885,
903 [city did not need to consider whether a proposed project would lower neighboring
housing values].)
Here, the Counties assert that “DWR’s EIR lacks any quantitative analysis of the
costs that Butte County will incur to accommodate the project’s environmental impacts.”
They then state that these costs will arise from increased demand for public services, like
law enforcement. But as both DWR and SWC point out, the Counties fail to demonstrate
how these fiscal impacts are linked to physical changes in the environment—even though
the trial court rejected their claim for this very reason.
Although the Counties offer two general arguments to establish this link, we find
neither argument persuasive. They first vaguely assert that these fiscal impacts are tied to
“the project’s environmental impacts.” But we find that claim too vague to meaningfully
evaluate and insufficient to establish a link to a physical change. They next challenge
DWR’s finding that the project would not trigger the need for new or expanded
government facilities to provide public services. DWR reasoned that was so after
“[c]onsidering the small and gradual increase in the demand for public services that
would be generated by implementing the Proposed Project, and the distribution of law
enforcement, fire, and emergency medical services calls among several agencies.”
Challenging this finding, the Counties assert that DWR’s own consultant “found annual
capital improvement costs of $18,500” for Butte County and further found the net cost to
Butte County from increased demand for public services generated by the project would
be $386,900 per year.
But we read the consultant’s findings differently. First, the consultant never said
the $386,900 figure represented the costs attributable to the increased demand for public
services generated by the project. It instead said this figure represented Butte County’s
net cost of providing public services to visitors of the Oroville Facilities for fiscal year
30
2002-2003. This figure, then, represented the cost attributable to providing public
services under existing conditions, not the cost attributable to the increased demand for
public services that would result from the project. This figure, moreover, was relatively
small according to the consultant’s calculations, representing only “about 0.1 percent of
the County’s overall budget.” Second, the consultant never claimed, as the Counties
appear to believe in citing the capital improvement costs, that the project would require
Butte County to alter or construct new facilities. The consultant instead accepted Butte
County’s contention that it would need to replace and upgrade certain facilities and then
calculated capital improvement costs based on that assumption. That the consultant
assumed the county would need to replace and upgrade certain facilities does not
undermine DWR’s finding that the project would not trigger these changes.
Left without any demonstrated link to a physical change, we must reject the
Counties’ claim that DWR needed to quantify the potential fiscal impacts to Butte
County. While the project may increase demand for public services in Butte County, that
in itself “is not an environmental impact that CEQA requires a project proponent to
mitigate.” (City of Hayward v. Trustees of California State University (2015) 242
Cal.App.4th 833, 843 [“The need for additional fire protection services is not an
environmental impact that CEQA requires a project proponent to mitigate”].)6
6 In a footnote—one of 90 substantive footnotes in their opening brief—the Counties
discuss existing problems in the project area involving illegal dumping, vandalism, and
other issues. But the Counties never explain the import of these existing impacts to its
argument about the project’s impacts. In any event, we decline to consider arguments
developed in footnotes. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419-
420 (Holden) [courts need not address arguments made in footnotes].)
31
B. Health Impacts
We turn next to the alleged public health impacts from mercury and bacteria.
Starting with mercury, the Counties contend the EIR failed to adequately evaluate
the health impacts to those who consume fish with high mercury levels. As the Counties
note, the EIR explained that some fish in the Feather River are high in mercury and that
the existing Oroville Facilities increase sportfishing opportunities in the Feather River.
According to the Counties, the EIR should have evaluated who consumes this fish, what
quantities they consume, and whether they consume fish with high mercury levels from
restaurants, grocery stores, and other commercial sources. They further contend the EIR
should have discussed potential “subtle effects” from consuming too much fish with high
mercury levels, should have acknowledged that the Oroville Facilities created the
conditions that led to bioaccumulation of mercury in fish, and should have noted that
women of childbearing age and children should limit their consumption of high-mercury
fish.
We reject their argument. The EIR, in its discussion of the environmental setting,
explained that the presence of mercury in the project area is nothing new. Mercury is an
existing issue, with “[h]istorical gold mining practices upstream of the project area, as
well as the development of municipal and industrial land uses in the upper watershed and
along the lower Feather River,” being the primary sources of the mercury. The EIR also
explained how the existing Oroville Facilities affect mercury concentrations in fish.
These facilities—although they do not themselves contribute mercury—trap mercury-
laden sediments from other sources and “[b]iomagnification apparently has resulted in
elevated mercury levels in fish from all project waters.”
But after documenting these existing issues, the EIR stated that the Office of
Environmental Health Hazard Assessment (OEHHA)—a department charged with
evaluating health risks from chemical contaminants (see Environmental Health
Advocates, Inc. v. Sream, Inc. (2022) 83 Cal.App.5th 721, 726)—“indicates that there
32
have been no recorded incidences of mercury-related health effects from consumption of
sport fish in California” and “has stated that there is a low potential health risk from
consuming California sport fish from water bodies subject to fish advisories,[7] unless the
consumption rate is considerably higher than recommended.” The EIR further explained
that neither the proposed project nor any project alternative “would result in a change to
either the rate or the amount of mercury accumulation within the FERC Project
boundary.” It added that the proposed project would “include measures to educate and
notify the public of safe limits on the consumption of fish,” including by requiring DWR
to “post notices at all boat ramps and any other location specified by OEHHA within the
FERC Project boundary about health issues associated with consuming fish taken from
within FERC Project waters.”
Under these circumstances, we reject the Counties’ claim that the EIR’s discussion
was inadequate. Although the EIR would have been even more thorough had DWR
surveyed all those who fish in the project area, learned of their diets, and quantified the
amount of mercury in their diets, the Counties have not shown that this step was
necessary in this case. As our Supreme Court has explained, “[a] project opponent or
reviewing court can always imagine some additional study or analysis that might provide
helpful information.” (Laurel Heights Improvement Assn. v. Regents of University of
California, supra, 47 Cal.3d at p. 415.) But “[i]t is not for them to design the EIR” and
“[t]hat further study . . . might be helpful does not make it necessary.” (Ibid.; see also
7 At the time of the EIR, the project area was not subject to a fish advisory for mercury,
though OEHHA had prepared a draft consumption advisory for mercury in fish from the
lower Feather River in Butte, Yuba, and Sutter Counties.
33
Watsonville Pilots Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1094 [EIR
did not need to identify solutions to preexisting groundwater overdraft conditions].)8
Moving on to bacteria, the Counties contend the EIR avoided evaluating potential
impacts from “ ‘high bacterial counts,’ likely due to human and wildlife fecal waste,
during seasonal peaks in recreation and wildlife activity.” The EIR, however, did
evaluate these potential impacts. It explained that fecal coliform bacteria levels at several
recreation areas occasionally exceeded a state agency’s “draft guidance for freshwater
beaches.” The EIR attributed these exceedances to recreational users and waterfowl,
explaining that large amounts of waterfowl visit the area and “discharge fecal wastes” in
the water or nearby drainage ways. But the EIR ultimately found these occasional
exceedances less than significant because a project condition “would develop a
monitoring and public education program related to bacteria, contact recreation, and
public noticing of conditions.”
The Counties’ remaining challenges to the EIR’s bacteria discussion are also
unpersuasive. First, they assert the EIR “includes inconsistent statements about project
impacts on bacteria levels.” But they never describe these alleged inconsistencies.
Second, they suggest DWR’s planned monitoring cannot reduce the potential impact
from high bacteria levels, because DWR might have performed monitoring even absent
the project. But even if true that DWR would have monitored bacteria even without the
project, the Counties never explain how this undermines DWR’s finding of no significant
8 The Counties also offer new arguments in their reply brief. Rather than focus on
DWR’s alleged failure to discuss existing mercury issues, as they did in their opening
brief, they contend DWR failed to discuss “the project’s attraction of new visitors” who
will now be exposed to mercury. They further argue that DWR “ignore[d] that climate
change is likely to exacerbate the Oroville Facilities’ impacts on toxic contamination.”
We decline, however, to address these belatedly raised arguments. (Neighbours v. Buzz
Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [courts need not address
contentions made for the first time in a reply brief without good cause].)
34
impact. Third, the Counties suggest DWR should have studied the potential effectiveness
of its plan to provide public notice of high bacteria levels. But the Counties provide
neither an explanation nor any authority on why a study was required here. Fourth, the
Counties claim DWR “ignore[d] more effective mitigation measures, such as closing
recreation areas and intercepting bacterial contaminants . . . before they reach the water.”
But the Counties supply no evidence showing these proposed measures would be more
effective, nor do they show that these measures were even proposed. And fifth, the
Counties suggest that DWR has relied on deferred mitigation because the settlement
agreement “establishes that DWR may develop a public education program if it
determines that one ‘is needed.’ ” But the Counties’ argument is premised on a
misreading of the settlement agreement. The agreement states that DWR “shall
determine if a public education program is needed” in consultation with several agencies,
and, if the answer is yes, it then “shall develop the public education program in
consultation with the above agencies.” (Italics added.)
V
Water Quality and Beneficial Use
The Counties next, for five reasons, challenge DWR’s discussion of water quality
and designated beneficial uses within the project area.
Before turning to the Counties’ contentions, we start with a little background on
water quality and beneficial uses. State law establishes a goal of “attain[ing] the highest
water quality which is reasonable, considering all demands being made and to be made
on those waters and the total values involved, beneficial and detrimental, economic and
social, tangible and intangible.” (Wat. Code, § 13000.) To help achieve this goal,
California’s nine regional water quality boards are charged with developing regional
water quality control plans, called “basin plans,” that must describe beneficial uses to be
protected, water quality objectives, and a program to achieve these water quality
35
objectives. (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th
613, 619; see Wat. Code, §§ 13050, subd. (j), 13240.)
The basin plan covering the Feather River, including Lake Oroville, is called the
Water Quality Control Plan for the Sacramento and San Joaquin River Basins (the Basin
Plan). It describes beneficial uses for Lake Oroville, including municipal and domestic
water supply, irrigation, power generation, contact and noncontact recreation, warm
water and cold water habitat, warm water and cold water spawning habitat, and wildlife
habitat. It also describes water quality objectives for this area, including, among others,
objectives for temperature, metals, and pH.
A. Project Objectives
Challenging the EIR’s discussion of these topics, the Counties first focus on the
EIR’s statement of project objectives.
Under CEQA, “[t]he statement of objectives should include the underlying
purpose of the project and may discuss the project benefits.” (CEQA Guidelines, §
15124, subd. (b).) In this case, the EIR explained that the project’s objective “is the
continued operation and maintenance of the Oroville Facilities for electric power
generation, including implementation of any terms and conditions to be considered for
inclusion in a new FERC hydroelectric license.”
The Counties challenge this stated objective for several reasons. They first claim
this objective wrongly “exclude[d] any serious consideration of how the project will
operate, or might operate differently, in the next half-century.” But because they never
explain why that is so, we reject their unexplained argument. (See Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785 (Badie) [“When an appellant . . . asserts [a
point] but fails to support it with reasoned argument and citations to authority, we treat
the point as waived”]; Chico Advocates for a Responsible Economy v. City of Chico
(2019) 40 Cal.App.5th 839, 846 [“an EIR approved by a governmental agency is
presumed legally adequate, and the party challenging the EIR has the burden of showing
36
otherwise”].) The Counties further claim the EIR’s stated objective wrongly “assume[d]
that project conditions are sufficiently rigorous to meet [existing] ‘commitments,’ ”
including commitments for environmental protection. But stating that the objective “is
the continued operation and maintenance of the Oroville Facilities for electric power
generation,” along with implementation of any new FERC license terms, evidences no
such assumption.
B. Environmental Setting
The Counties next contend the EIR’s discussion of the environmental setting
wrongly assumed that current operations comply with water quality standards. (See
CEQA Guidelines, § 15125, subd. (a) [an EIR must include a description of a project’s
environmental setting].) They reason that is so for three general reasons.
Their first argument concerns DWR’s use of qualifiers in the EIR. They argue
DWR, by using qualifiers, mischaracterized the Basin Plan’s objectives as aspirational
rather than mandatory targets, including when DWR explained that “the operation of the
Oroville facilities must reasonably comply with the [Basin Plan].” (Italics added.) The
Counties further argue DWR hid past exceedances through the use of qualifiers,
including when it stated that flows and temperatures “generally support[]” the spawning
of certain fish species, that the Oroville Facilities “reasonably protect” certain wildlife
habitat, and that reservoir drawdown during “normal operations” can affect beach access
and black bass nest survival. (Italics added.)
We find differently. Although DWR at times used unnecessary qualifiers,
including when it said it must “reasonably comply” with the Basin Plan, it still made
clear that compliance was necessary. It explained, for instance, that before FERC issues
a new license, the State Water Resources Control Board (the Water Board) must find
“that the project complies with appropriate requirements of the . . . Basin Plan, which
includes the water quality objectives for protection of designated beneficial uses.” And
although DWR also used qualifiers when describing past compliance with the Basin Plan,
37
including when it said temperatures “generally comply” with applicable water quality
criteria, the Counties have not shown that it hid exceedances. The EIR, in fact, explicitly
disclosed that “temperature exceedances do occur.”
The Counties next contend DWR failed to disclose certain past exceedances of
water quality standards. They assert DWR “fail[ed] to specify which metals other than
mercury exceeded water quality standards within the project area, avoid[ed] mentioning
what percentage of samples exceeded a given standard, and d[id] not disclose the
potential risks associated with these violations.” The Counties also assert DWR
misleadingly wrote that phosphorus concentrations did not exceed Basin Plan criteria
objectives, even though its “own separate study flatly rejects this assertion, noting that
the phosphorous standard ‘has been exceeded numerous times at all sampling sites.’ ”
We find neither point persuasive. In terms of metals, the Counties suggest that the
EIR described exceedances for metals other than mercury, but then declined to disclose
these other metals. But the Counties never reveal where this occurred. In terms of
phosphorus, the Counties mischaracterize the record in claiming that it shows
exceedances of Basin Plan objectives. While the record reveals exceedances of the
federal Environmental Protection Agency’s recommendations for phosphorus, it does not
show exceedances of Basin Plan objectives for phosphorus.
Lastly, the Counties contend the EIR failed to adequately discuss potential impacts
to beneficial uses. They assert the EIR documented “specific failures” that affect various
beneficial uses, but it improperly dismissed these issues without proper analysis. They
further assert the EIR acknowledged project operations could increase water temperatures
in the “Diversion Pool” and one other area (which the Counties do not identify), but the
EIR then failed to address “what happens when the hatchery does not achieve water
temperature requirements.” Both the referenced Diversion Pool and fish hatchery are
part of the Oroville Facilities.
38
But although the Counties fault DWR for failing to sufficiently evaluate
documented “specific failures,” they never identify these alleged failures. And although
the Counties further fault DWR for failing to sufficiently discuss the impacts from high
water temperatures in the fish hatchery, their argument is premised on a misreading of the
record. The Counties’ record citations discuss potential elevated water temperatures in
two areas: the Diversion Pool and the lower Feather River below the Thermalito
Afterbay Outlet. The Counties then suggest that the Diversion Pool, the river below the
Thermalito Afterbay Outlet, and the fish hatchery are all the same, and so high
temperatures in one means high temperatures in all three. But that is not true. The
Diversion Pool, the lower Feather River below the Thermalito Afterbay Outlet, and the
fish hatchery are all in distinct locations, as the EIR shows. Apart from failing to
acknowledge these different locations, moreover, the Counties never attempt to explain
how warmer waters in one area could lead to warmer waters in another area. None of the
Counties’ arguments, then, demonstrate that DWR simply assumed compliance with
water quality standards.9
C. No-Project Alternative
The Counties next challenge concerns the EIR’s discussion of project alternatives.
An EIR must identify and discuss a range of alternatives to the proposed project,
including a no-project alternative. (CEQA Guidelines, § 15126.6, subds. (a), (e)(1).)
Challenging DWR’s compliance with this requirement, the Counties contend the EIR’s
no-project alternative wrongly assumed future compliance with water quality standards
and beneficial use requirements.
9 The Counties also claim in a footnote that the EIR’s discussion of elevated bacteria
levels was lacking. But again, we will not consider arguments developed in footnotes.
(See Holden, supra, 43 Cal.App.5th at pp. 419-420.)
39
In support, they first argue: “Rather than assessing whether the no project
alternative would actually protect beneficial uses, DWR assume[d] that ‘[w]ith
implementation of the No-Project Alternative, baseline conditions identified . . . would
continue into the future.’ ” The Counties, however, misrepresent the record. Although
true that DWR said “baseline conditions . . . would continue into the future,” the text
omitted with the ellipsis is significant. It shows that DWR was only discussing the
“baseline conditions identified in Section 4.1.2,” which was a section discussing project
geology, including the types of rocks underlying the project area—not a section focused
on water quality and beneficial uses.
The Counties’ next argument concerns DWR’s response to a Water Board
comment. The board commented that the draft EIR had conflicting findings about water
temperatures—in one part it said water temperatures generally comply with the criteria
established for the “Feather River Hatchery and Robinson Riffle,” but in another part it
said pre-spawning adult salmonids may be exposed to elevated water temperatures.
Focusing on a portion of DWR’s response to this comment, the Counties contend DWR
improperly cited a study that discussed the effects of water temperatures. They reason
that an EIR “analyzes impacts and does not relegate decision makers or the public to
separate, unreviewed studies.”
But the Counties’ argument supposes that DWR did little more than cite a study in
response to the Water Board’s comment. That is not true. Apart from citing the study,
DWR directly responded to the Water Board’s concerns. It explained that while pre-
spawning adult salmonids may be exposed to elevated water temperatures “in the lower
portion of the River as water moves downstream,” the “water temperature compliance
point” is located upstream of that portion of the river. And so, DWR indicated, it is not
inconsistent to say both that water temperatures generally comply with established
criteria in this area and that pre-spawning adult salmonids further downstream may be
exposed to elevated water temperatures. The Counties never explain why DWR’s
40
explanation—which they never acknowledge—was flawed. Nor have they shown that
DWR violated CEQA merely by citing a study in the record. (See City of Long Beach v.
Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 902 [in response to
comments on an EIR, a lead agency may list the specific documents it believes support its
findings—at least when its response requires no burdensome sifting or hunting].)
The Counties also argue that DWR failed to address its own prediction that water
demand would rise, “assumed that no foreseeable changes in operation from changes in
climate or in SWP and Central Valley Project management would impact the Oroville
Facilities’ ability to meet beneficial uses,” and “assumed that no aspect of the current
operations could be slowly decreasing in effectiveness.” But the Counties cite nothing in
the record showing DWR predicted increased water demand, nor do they cite anything in
the record showing DWR’s alleged assumptions.10 We will disregard these unsupported
claims. (Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must “[s]upport any
reference to a matter in the record by a citation to the volume and page number of the
record where the matter appears”]; Jumaane v. City of Los Angeles (2015) 241
Cal.App.4th 1390, 1406 [courts “may disregard any claims when no reference [to the
record] is furnished”].)
D. Compliance With Water Quality Standards
The Counties next contend the “EIR’s wrongful assertion of existing compliance
allowed DWR to evade proof that future project operations will protect water quality and
beneficial uses.” (Capitalization omitted.) But the Counties never establish their premise
that the EIR simply asserted existing compliance.
Attempting to establish this premise, the Counties state: DWR “repeatedly asserts
that the proposed project measures meet beneficial uses because they are ‘more protective
10 Although the Counties elsewhere challenge DWR’s evaluation of climate change, we
reject their arguments for reasons already covered.
41
and [enhance] water quality beneficial uses and aquatic resources.’ ” The Counties then
contend being more protective means little and “does not equate to basin plan
compliance.” But the Counties misread the record. At the cited page of the record, DWR
did not claim that the proposed project measures would satisfy Basin Plan requirements
simply because they would be “more protective” than existing measures. It instead said
the “Proposed Project, when compared to the PDEA Proposed Action, is more protective
and enhances water quality beneficial uses and aquatic resources.”
The Counties also assert: “DWR presumes that ‘[a]ll programs described in the
Proposed Project would be implemented to continue and enhance the reasonable
protection of the designated beneficial uses in the [Basin Plan].’ ” But while the quoted
text implies that existing operations are reasonably protective of the designated beneficial
uses in the Basin Plan, it does not presume, as the Counties believe, that existing
operations are always compliant with Basin Plan requirements. Again, the EIR expressly
disclosed that exceedances of Basin Plan standards have occurred.
E. Mitigation Measures and Alternatives
Lastly on the topics of water quality and beneficial uses, the Counties contend
DWR needed to consider mitigation measures and alternatives to address certain impacts.
They raise three points in support.
First, the Counties claim “DWR failed to acknowledge that the California Water
Plan Update 2005 predicts formidable challenges to meeting beneficial use objectives in
the future.” But they never describe these predicted “formidable challenges.” As best we
can tell after reviewing their record citation, the Counties are alluding to climate change.
But as already discussed, we find the Counties’ challenge to DWR’s climate change
discussion unpersuasive.
Second, the Counties assert DWR failed to acknowledge that it might need to
release water from storage to protect the Delta smelt, which could result in reservoir
levels falling below that needed to maintain cold waters for salmon in the reservoirs. But
42
the Counties supply no evidence showing that increased releases to protect the Delta
smelt are even anticipated. And to the extent the Counties speculate this could occur,
speculation is not enough. (Friends of Riverside’s Hills v. City of Riverside (2018) 26
Cal.App.5th 1137, 1152 [speculation about environmental impacts is insufficient].)
Third, the Counties claim DWR offered conflicting comments about a future
“biological opinion” that could affect SWP operations. They reason that DWR said it
could not predict the terms of the future biological opinion, but it then, inconsistently,
predicted those terms and said they would not affect the majority of release requirements
from Lake Oroville. We will discuss later in this opinion the import of certain biological
opinions for the SWP. For now, it is enough to say this: The Counties mischaracterize
the record. Although the Counties claim that DWR offered conflicting comments about a
single biological opinion, the record shows that DWR was discussing two distinct
biological opinions. It found it could not predict the terms of a new biological opinion
“related to salmonids,” and it then found the terms of a new biological opinion “related to
Delta smelt” would not affect the majority of release requirements from Oroville.
VI
The State Water Project
The Counties next contend DWR failed to account for potential SWP changes that
could affect project operations. They raise three arguments on this topic, none of which
we find persuasive.
A. Biological Opinions
The Counties’ first argument concerns the biological opinions that we mentioned
above. Before getting into the substance of the Counties’ argument, we start with some
background about these opinions—background that the Counties largely neglect to
provide.
“When an agency plans to undertake action that might ‘adversely affect’ a
protected species [under the federal Endangered Species Act], the agency must consult
43
with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service
(NMFS) (together, ‘Services’) before proceeding.” (U.S. Fish and Wildlife Service v.
Sierra Club, Inc. (2021) ___ U.S. ___ [141 S.Ct. 777, 783-784].) “The goal of the
consultation is to assist the Services in preparing an official ‘biological opinion’ on
whether the agency’s proposal will jeopardize the continued existence of threatened or
endangered species.” (Id. at p. 784.) “If the Services conclude that the action will cause
‘jeopardy,’ they must propose ‘reasonable and prudent alternatives’ to the action that
would avoid harming the threatened species.” (Ibid.) In that event, the agency
“consulting with the Services” must “either implement the reasonable and prudent
alternatives, terminate the action altogether, or seek an exemption from the Endangered
Species Committee.” (Ibid.)
Shortly before DWR released its draft EIR here, FWS and NMFS each prepared a
biological opinion evaluating the impacts of two water projects—the SWP and the
Central Valley Project—on certain threatened and endangered fish species. (NRDC,
supra, 506 F.Supp.2d at pp. 328, 331; Pacific Coast, supra, 606 F.Supp.2d at pp. 1127-
1128.) FWS’s opinion considered impacts on the Delta smelt; NMFS’s opinion
considered impacts on several salmon species. (NRDC, at p. 328; Pacific Coast, at p.
1127.) But before DWR filed the final EIR here, a federal court found both these
opinions inadequate and required the agencies to prepare new biological opinions.
(NRDC, at pp. 369, 387-388; Pacific Coast, at pp. 1184, 1193-1194.)
DWR covered this background in its final EIR. It also responded to comments
that the EIR should account for future changes in regulatory requirements, including any
changes under the future biological opinions. Starting with the opinion covering salmon,
DWR said it anticipated that NMFS would issue a new opinion in winter 2008-2009.
DWR added that the federal court could impose interim remedies in the meantime. But it
ultimately found it could not “predict at this time what the interim remedies will be or
what the new [biological opinion] will contain to protect these fish.” Turning to the
44
opinion covering the Delta smelt, DWR noted that FWS would issue a new opinion in fall
2008. It also said the federal court had imposed interim remedies to govern SWP
operations until the issuance of the new opinion. But DWR found neither the interim
remedies nor the anticipated biological opinion “will affect the majority of release
requirements from Oroville.” It added that the required changes—which generally would
reduce Oroville releases in early summer and slightly increase releases in summer and
early fall—“might increase carryover storage in Lake Oroville,” but “[t]hese differences
would be minor and would not have an effect on the ability to meet future water
temperature or flow objectives in the Feather River below Oroville.”
With that background, we turn to the Counties’ argument. Without distinguishing
the two biological opinions, the Counties claim DWR’s responses were inadequate. They
first claim “DWR vaguely assert[ed] that the ‘majority’ of release requirements from
Oroville would remain unaffected.” But they never acknowledge that DWR went on to
specify these release requirements, explaining that they included “[f]lood control
releases, Bay-Delta water quality releases, Feather River [Settlement Agreement] water
rights deliveries, and in-stream flow releases as required by agreements with [the
Department of Fish and Wildlife] and requirements by NMFS in the current [biological
opinion].” The Counties next claim DWR’s “assert[ion] that ‘[it] cannot predict at this
time . . . what the new [biological opinion] will contain’ ” is flawed, because the
settlement agreement’s stated purpose is to resolve “ ‘all issues that may arise’ in
connection with the proposed new project license.” But if DWR cannot predict the terms
of the new biological opinion—which not even the Counties appear to dispute—then it
cannot resolve potential issues associated with those unknown terms.
B. Normal Operations
The Counties’ next argument concerns a provision in the settlement agreement
discussing potential reductions in minimum flow releases. The provision states: “If the
April 1 runoff forecast in a given water year indicates that, under normal operation of
45
[the Project], Oroville Reservoir will be drawn to elevation 733 feet (approximately
1,500,000 acre-feet), minimum flows in the [high flow channel] may be diminished on a
monthly average basis, in the same proportion as the respective monthly deficiencies
imposed upon deliveries for agricultural use from the Project; however, in no case shall
the minimum flow releases be reduced by more than 25 percent.” (Italics added.)
According to the Counties, because the phrase “normal operation” is not defined,
“considerable controversy could ensue over whether the ‘new’ normal or some older
version should prevail.” The Counties say nothing more on the topic and cite no legal
authority.
We fail to understand the Counties’ purpose in raising this point. Perhaps they
seek only to make a general observation about a perceived ambiguity in the settlement
agreement. Or perhaps they believe the potential for future controversy violates some
law. To the extent it is the latter, however, we find their unexplained and unsupported
argument forfeited. (Badie, supra, 67 Cal.App.4th at pp. 784-785.) To the extent,
moreover, the Counties seek to unwind the settlement agreement, their position fails for
another reason. As our Supreme Court already explained, the Counties can neither
challenge the environmental sufficiency of the settlement agreement nor “seek to unwind
it.” (County of Butte, supra, 13 Cal.5th at p. 637.)
C. Increased Water Demand
The Counties’ last argument involving the SWP concerns DWR’s response to a
Water Board comment letter. In the letter, the Water Board asserted that the draft EIR
“does not include an adequate discussion of the impact of [SWP] operations on the
Proposed Project.” It reasoned that the EIR should have considered the potential impacts
of increased future demand for SWP water “on the cold water pool available in Lake
Oroville.” Butte County, raising a similar point in its own comment letter, said the EIR
should have considered “changes in SWP deliveries.”
46
In response to the Water Board, DWR stated that “[a]nalysis of future changes to
the [SWP] statewide operations is outside the scope of this EIR.” And in response to
Butte County, DWR stated that it could “only study and model what is currently known,
or what can reasonably be foreseen to occur with respect to Project operating rules”; that
“[i]t is not possible to predict all potential hypothetical future changes in SWP operating
conditions, and how those changes might affect future Lake Oroville operations, within
the context of this EIR”; and that “[a]ny future changes in SWP operations materially
affecting water deliveries, if outside the current authorizations, would be subject to a
separate environmental review and likely a separate EIR.”
Challenging this response, the Counties contend DWR improperly treated “the
Oroville project and the SWP as analytically distinct,” even though “SWP-related
downstream pressures will affect upstream demands on project operation in the Feather
River and Lake Oroville.” The Counties’ argument, however, is premised on a
misunderstanding of DWR’s response. DWR did not find that the Oroville project and
the SWP are, in the Counties’ words, “analytically distinct.” It instead found that
unforeseeable changes to SWP operations could not be studied in the EIR and that future
material changes to SWP operations would be subject to a separate environmental review
if outside current authorizations. DWR also confirmed elsewhere in the EIR that it did
not perceive the Oroville project and the SWP to be analytically distinct, including when
it acknowledged that SWP water demands and certain future SWP infrastructure
improvements would affect project operations.
VII
Record Costs
Finally, the Counties contend the amount they were required to pay to prepare the
administrative record was too high. As a condition of proceeding to trial, the trial court
required the Counties to pay $675,087 to DWR to prepare the 327,261-page record. The
Counties paid the amount under protest. Calling this “one of the darkest passages in
47
California’s storied water history,” the Counties contend the trial court abused its
discretion for various reasons, none of which we find persuasive.
We start with some background principles. In CEQA cases, the petitioner must
ask the respondent agency to prepare the record, prepare the record itself, or agree to an
alternative method of preparing the record, subject to the respondent agency’s
certification of the record’s accuracy. (Pub. Resources Code, § 21167.6, subds. (a),
(b)(2).) If the petitioner relies on the agency to prepare the record, as happened in this
case, “[t]he parties shall pay any reasonable costs or fees imposed for the preparation of
the record of proceedings in conformance with any law or rule of court”—though, should
the petitioner prevail in its suit, it is ordinarily able to recover the amounts it paid to
prepare the record. (Id., subd. (b)(1); see Code Civ. Proc., § 1095.) “ ‘Whether a
particular cost to prepare an administrative record was necessary and reasonable is an
issue for the sound discretion of the trial court. [Citations.] Discretion is abused only
when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances
being considered.” [Citation.] The appellant has the burden of establishing an abuse of
discretion.’ ” (The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60,
68.)
Challenging the trial court’s decision here, the Counties first assert that the costs
imposed far exceed those imposed in other cases, are the “most unjustified in CEQA
history,” and “represent an unprecedented abuse of power.” We reject their argument.
Although the total amount here may be high, this is not a typical CEQA case. CEQA
contemplates that an agency will generally take under 60 days to prepare a record, with
more time allotted if appropriate. (Pub. Resources Code, § 21167.6, subds. (b)(1), (c).)
But in this case, the evidence shows it took over a year of “intensive and . . .
continuous[]” efforts for DWR to prepare the record. It also shows that the record was
unusually large, concerned a project spanning more than a decade, and involved hundreds
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of DWR employees with potential record materials. This context—which the Counties
never acknowledge—is important.
The price DWR charged per page for preparing the record ($2.06), moreover, was
not unprecedented. The trial court explained as much in its decision, citing River Valley
Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th
154. In that case, the trial court found reasonable a cost per page of about $2.55 (id. at
pp. 180-181 [$10,194.05 for 4,000 pages]), and the reviewing court later found the trial
court “acted well within its discretion in finding costs claimed by [the agency] were
reasonable” (id. at pp. 181-182). Because the Counties neither acknowledge the trial
court’s reasoning nor show that a charge of $2.06 per page is too high, we find their
effort to characterize the trial court’s decision as “an unprecedented abuse of power”
unpersuasive. (See ibid.; cf. California Public Records Research, Inc. v. County of
Alameda (2019) 37 Cal.App.5th 800, 803 [county did not “abuse its discretion when it
determined that charging $3.50 per page was necessary to recover the direct and indirect
costs of making copies”].) Nor do we find the Counties’ efforts to downgrade the trial
court judge’s credentials, calling him a “pro tem judge,” helpful or even accurate. The
judge here has been a judge, not a pro tem judge, for over a decade.
Second, the Counties contend the costs should have been lower because 74,348
pages in the CEQA record “already appear in FERC’s official docket for the pending
federal Oroville relicensing proceedings.” But the Counties cite nothing to support their
stated figure of 74,348 pages. Nor have they shown any meaningful overlap between the
two records. Although the record does vaguely describe an overlap of “thousands” of
pages, that could still mean an overlap of less than one percent given the 327,261-page
record here. Without more information about the extent of the overlap, we are not
persuaded that this potentially minimal overlap renders the costs here excessive. Nor do
we find persuasive the Counties’ additional claim that they at least expected costs to be
lower given the records in the FERC proceeding. While the Counties may have expected
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costs to be lower, they provide no authority showing that expectation to be legally
significant.
Third, the Counties assert DWR charged “exorbitant sums to prepare the record
that [it] certified it had maintained at the time of project approval.” (Capitalization
removed.) Their reasoning is premised on CEQA Guidelines section 15094, subdivision
(b)(9), which, as relevant here, requires a lead agency to notify the public within five
working days of project approval “where a copy of the final EIR and the record of project
approval may be examined.” In the Counties’ view, because DWR had an independent
duty to maintain the administrative record under CEQA Guidelines section 15094, it
could not later charge the Counties for the cost of preparing the record—or at least, it
could not charge the Counties as much as it did.
The Counties misinterpret CEQA Guidelines section 15094. That provision, as
relevant here, simply requires the lead agency to provide notice of where to find the
record materials—which in this case, was DWR’s office in downtown Sacramento. It
does not require the lead agency to prepare the record for review. Public Resources Code
section 21167.6 instead imposes this requirement. It requires the lead agency to prepare
the record after a plaintiff has filed suit to challenge the EIR and asked the agency to
prepare the record. (Pub. Resources Code, § 21167.6, subds. (a), (b).) It also
demonstrates that preparing the record can take a significant amount of time, even after
the lead agency has already complied with CEQA Guidelines section 15094. (Pub.
Resources Code, § 21167.6, subds. (b)(1), (c).)
Fourth, the Counties contend DWR’s costs were excessive because it conducted
“200 interviews with employees simply to determine if they had records” and charged
“hundreds of hours to perform such tasks as reviewing their own emails and files and for
a ‘second level’ review.” The referenced DWR staff person, however, did not interview
200 employees to determine if they had records; he instead contacted 200 individuals to
ask whether they had records. The Counties never explain why contacting individuals to
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find records was unreasonable. Although the record shows DWR staff spent significant
time reviewing their own e-mails and files, with a few people also conducting “2nd level
review of electronic staff files and e-mails,” the record also shows that “the EIR for the
Oroville Facilities Relicensing project spanned more than a decade and involved dozens
of DWR staff at several offices.” Given this context, which the Counties never
acknowledge, we are not persuaded that the trial court abused its discretion in finding
DWR’s cost reasonable.
Fifth, the Counties assert that some of DWR’s cost items were inappropriate. Part
of their objection concerns DWR’s accounting system. DWR calculated administrative
record costs using an existing accounting system that it has used since 1999 to calculate,
among other things, reimbursements for the costs of running the SWP. DWR’s
accounting system is intended to capture, for each employee, the “true costs” of that
employee’s services and includes, among other things, direct employee costs, benefits,
and overhead. Without acknowledging this accounting system and its purpose of
capturing true costs, the Counties suggest that DWR acted inappropriately in seeking
recovery for employee benefits and their share of overhead. But they offer no
explanation nor any legal authority for challenging DWR’s approach, other than to say
that DWR acted “brazenly.” We reject their undeveloped argument. (Badie, supra, 67
Cal.App.4th at pp. 784-785; see also The Otay Ranch, L.P. v. County of San Diego,
supra, 230 Cal.App.4th at pp. 70-71 [an agency can recover “actual” costs when the costs
are reasonably and necessarily incurred for preparation of the administrative record; these
costs are not “limit[ed] . . . to certain categories”].)
The Counties further object to DWR obtaining reimbursement for costs labeled as
“Litigation Expenses” and for the costs for one of its consultants. Starting with the
“Litigation Expenses,” the Counties assert that DWR’s failure to “distinguish between
‘costs’ of ministerial record assembly and ‘costs’ of litigation defense vitiates a claim for
recovery of any of these dollars.” But DWR explained the “Litigation” category in a
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declaration in the trial court proceedings. It explained it “created a cost object called
‘Litigation’ ” after the Counties filed suit and then instructed all staff “to assign line staff
work, consultant fees, and other costs incurred in assembling and preparing the
administrative record to this cost object.” Because the Counties fail to dispute or even
acknowledge this evidence, they have failed to meet their burden to show that the trial
court abused its discretion.
Turning to the consultant’s costs, the Counties contend one consultant’s task
orders “fail[ed] to segregate work on the merits from work on CEQA review” and
assigned both the same billing number. They add that the consultant’s timesheets appear
to include time spent on defending the EIR. But in a declaration in the trial court
proceedings, DWR described its efforts to address this issue. It explained that it
“examined the charges to ensure that the tasks billed were for record preparation only”
and “removed [the consultant’s] charges from the final bill for record preparation that did
not relate[] to preparation of the administrative record and assigned them to a separate
task order.” Because the Counties never explain how this effort fell short, nor even
acknowledge this effort to remove inappropriate charges, they have not demonstrated that
the trial court abused its discretion. (See Najera v. Huerta (2011) 191 Cal.App.4th 872,
877 [“On appeal, the burden is on the party complaining to establish an abuse of
discretion, and unless a clear case of abuse is shown along with a miscarriage of justice, a
reviewing court will not substitute its opinion and thereby divest the trial court of its
discretionary power”].)
Lastly, the Counties argue that the cost award should be set aside because it was
oppressively high. But even when costs are high, Public Resources Code section
21167.6, subdivision (b)(1) still says that the “[t]he parties shall pay any reasonable costs
or fees imposed for the preparation of the record of proceedings in conformance with any
law or rule of court.” Because the Counties offer neither authority nor a rational
explanation for evading this requirement, we reject their argument. (Badie, supra, 67
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Cal.App.4th at pp. 784-785.) We also find their efforts to bolster this argument in their
reply brief fall short. They first suggest that DWR purposefully “r[a]n up the cost bill”
because it disliked them. They then claim that DWR artificially increased the cost bill to
solve budget difficulties. We reject these baseless claims, neither of which are supported
with any citation to the record.11
DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HULL, J.
11 In their reply brief and in footnotes to their opening brief, the Counties also argue that
costs should have been substantially lower because DWR wrongly charged for staff time
spent on “modeling” and because this case involves an electronic, not paper, record.
Again, however, we decline to address arguments raised in footnotes and in the reply
brief. (Holden, supra, 43 Cal.App.5th at pp. 419-420; Neighbours v. Buzz Oates
Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.)
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