Metropolitan News-Enterprise


Friday, June 6, 2008


Page 1


California Supreme Court Upholds Plan to Restore Bay-Delta


By a MetNews Staff Writer


In a unanimous opinion, the California Supreme Court upheld a joint federal and state government long-term plan for restoring the Bay-Delta region’s ecological health and improving the water management systems dependent on the delta yesterday.

In reversing the Third District Court of Appela’s decision, the justices concluded that a consortium of federal and state agencies was not required examine a program alterative in its enviornmental impact report which would assist it in achieving one of their objectives to the detriment of another.

The Bay-Delta is the largest estuary on the west coast, and provides a majority of the water supply for the state. Due to pollution, the draining and filling of wetlands, and the continued diversion of water, the Environmental Protection Agency and state Department of Fish and Game both issued conclusions that the region’s ecosystem had “deteriorated drastically” over the past 20 years, to the point that certain plant and animal species in the area are threatened with extinction.

 In light of these concerns, eight state agencies and 10 federal agencies with management or regulatory responsibility over the delta region formed a consortium, known as CALFED, to design and implement a comprehensive plan to restore the area’s ecosystem and establish a reliable water supply for users of water from the delta.

Alternatives Considered

CALFED later issued an environmental impact report which examined 50 categories of potential action, including hundreds of individual actions within these categories to try and achieve its objectives. It only considered alternatives that had the potential to achieve its ecosystem restoration goals and projected water export demands before identifying the course of action it would follow.

The Regional Council of Rural Counties, various public agencies and three landowners contested the final EIR, contending that it failed to comply with the California Environmental Quality Act because it did not examine in detail a program alternative requiring reduced water exports from the Bay-Delta. The California Farm Bureau Federation and three landowners filed a similar claim.

Sacramento Superior Court Judge Patricia C. Esgro coordianted the two claims and upheld the EIR. The Third District Court of Appeal consolidated the cases and reversed.

In an unpublished 224-page opinion, the appellate court reasoned that reducing water exports from the delta would be “environmentally superior” because it would facilitate achievement of the ecosystem restoration component of the CALFED’s objectives and more effectively address the delta’s existing environmental problems.

The appellate court suggested that smaller water exports might lead to smaller population growth due to the unavailability of water to support growth, and declared that a reduced exports alternative “would also appear to be feasible, at least in the long term as population growth adjusts to the new realities of water availability.” 

Although it conceded that reducing water exports was inconsistent with CALFED’s other objective of establishing a reliable water supply for all users dependant on water from the delta, it ruled that an alternative is feasible even if it does not meet all of an agency’s goals.

Writing for the state high court, however, Justice Joyce L. Kennard concluded that CALFED’s failure to include a reduced exports alterative in the EIR was not an abuse of discretion.

Premised on Restoration

The CALFED Program, she explained, is premised on the theory that it is possible to restore the delta’s ecological health while maintaining or increasing water exports from the delta. If the theory proves unsound, she acknowledged, exports may need to be capped or reduced, but at the program design phase, she reasoned, CALFED did not err in rejecting the reduced export alternative as infeasible because it would seriously compromise CALFED’s water supply objective.

Although an EIR should not exclude an alternative from consideration solely because it would impede the attainment of the project objectives to some extent, Kennard wrote, an EIR does not need to give detailed examination of an alternative that an agency has reasonably determined would not achieve the project’s fundamental goals.

Chief Justice Ronald M. George, and Justices Marvin R. Baxter, Kathryn Mickle Werdegar, Ming W. Chin, Carlos R. Moreno, and Carol A. Corrigan joined Kennard in her opinion.

A CALFED spokesman said that the Supreme Court’s decision “validates the environmental planning efforts that provide the framework for what we do in the delta.”

A spokesperson for the Planning and Conservation League, a conservation advocacy coalition which filed an amicus curiae brief in the matter, called the decision a “blow to the crumbling Delta ecosystem,” in a statement. The court’s opinion “condones business-as-usual practices, which have created the Delta crisis in the first place,” the group said.

The “tragic history” of the delta region “clearly dispels the myth that Delta ecosystem restoration can be achieved alongside ever increasing levels of freshwater export,” the group contended.

Alan Neal Bick of Gibson, Dunn & Crutcher and Brian E. Gray of Hastings College of the Law represented the appellants in the state Supreme Court. Neither could be reached for comment.

Deputy Attorney General Danae J. Aitchison and Senior Deputy General Counsel Adam C. Kear represented CALFED.

The case is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, 08 S.O.S. 3316.


Copyright 2008, Metropolitan News Company