90 Cal.App.5th 147
Cal. Ct. App.2023Background
- The Oroville Facilities (part of California’s State Water Project) were federally licensed in 1957; DWR began relicensing efforts and prepared a programmatic EIR in 2008 tied to a multi-party settlement agreement intended to inform a new FERC license.
- Butte County, Plumas County, and Plumas County Flood Control & Water Conservation District (the Counties) filed consolidated CEQA writ petitions challenging the EIR on four principal grounds: climate change analysis; fiscal and public‑health effects (mercury, bacteria); assumptions of compliance with water‑quality standards and impacts to beneficial uses; and failure to account for potential State Water Project (SWP) changes that could affect Oroville operations.
- The trial court upheld DWR’s EIR. On appeal the case was litigated multiple times; the California Supreme Court held some claims preempted but allowed challenges to the EIR to proceed and remanded for consideration of the merits.
- On remand this Court reviewed the EIR’s adequacy in light of the administrative record and existing science as of 2008 and affirmed the judgment for DWR.
- The court also upheld DWR’s recovery of $675,087 from the Counties to prepare the 327,261‑page administrative record, finding costs reasonable given the record’s size and preparation burdens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Climate change analysis | Counties: EIR must model 50‑year climate impacts on hydrology, project operations, and environmental effects | DWR: Local projections were too uncertain in 2008; DWR disclosed relevant science and explained that further modeling would be speculative | Held: Affirmed. DWR reasonably found effects too speculative to evaluate in 2008 and complied with CEQA (§15145) by terminating further discussion after investigation |
| Historical hydrologic modeling | Counties: EIR omitted key historical years (e.g., 1907 high, 1977 low) and used hypothetical rather than actual flows | DWR: Modeled 73 historical inflow years (1922–1994); record shows adequate modeling and EIR explained design for extreme flows | Held: Affirmed. Record shows DWR modeled 1922–1994; omission of 1907 not fatal and exhaustion rule bars belated contention about data range |
| Local impacts — fiscal and public‑health (mercury, bacteria) | Counties: EIR failed to quantify fiscal burdens on Butte County and analyze health risks from mercury and bacterial contamination | DWR: Fiscal impacts are economic unless tied to a physical environmental change; mercury and bacteria are preexisting risks, and EIR proposed education/monitoring measures and cited OEHHA guidance | Held: Affirmed. CEQA does not require quantifying purely economic impacts absent a physical nexus; EIR adequately discussed mercury/bacteria and proposed mitigation/monitoring |
| Water quality / beneficial uses and SWP changes | Counties: EIR assumed compliance with Basin Plan objectives, failed to analyze impacts to beneficial uses, and ignored foreseeable SWP/regulatory changes (e.g., biological opinions) | DWR: EIR described environmental setting, disclosed exceedances, explained limits of predicting future biological opinions and SWP operational changes, and addressed likely release requirements | Held: Affirmed. DWR did not improperly assume compliance; it disclosed uncertainties, addressed comments, and reasonably declined to model unforeseeable future SWP/regulatory changes |
| Administrative‑record costs | Counties: $675,087 required payment to prepare record was excessive and improper | DWR: Costs were reasonable given record size, time, staff and consultant work, and standard accounting of true costs | Held: Affirmed. Trial court did not abuse discretion; per PRC §21167.6 petitioners must pay reasonable record preparation costs |
Key Cases Cited
- County of Butte v. Department of Water Resources, 13 Cal.5th 612 (Cal. 2022) (prior procedural history and Supreme Court guidance on preemption and EIR challenges)
- Cleveland National Forest Foundation v. San Diego Assn. of Governments, 3 Cal.5th 497 (Cal. 2017) (EIR is "the heart of CEQA"; purpose and adequate detail standard)
- In re Bay‑Delta etc., 43 Cal.4th 1143 (Cal. 2008) (CEQA review standard: adequacy, completeness, good faith disclosure)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (Cal. 1988) (CEQA does not require speculation; courts defer to agency where further study would be speculative)
- Sierra Club v. County of Fresno, 6 Cal.5th 502 (Cal. 2018) (standards of review for procedural and factual CEQA errors)
- Turtle Island Restoration Network v. U.S. Dept. of Commerce, 878 F.3d 725 (9th Cir. 2017) (agency may reasonably conclude some climate effects were too speculative to quantify)
- Natural Resources Defense Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007) (agency must meaningfully consider climate data and explain any discounting)