Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sonoma County Water Coalition v. Sonoma County Water Agency

October 8, 2010

SONOMA COUNTY WATER COALITION ET AL., PLAINTIFFS AND RESPONDENTS,
v.
SONOMA COUNTY WATER AGENCY ET AL., DEFENDANTS AND APPELLANTS.



(Sonoma County Super. Ct. No. SCV-240367), Gary Nadler, Judge.

The opinion of the court was delivered by: Bruiniers, J.

CERTIFIED FOR PUBLICATION

The Urban Water Management Planning Act (Wat. Code, § 10610 et seq.; the Act or UWMPA)*fn1 requires water suppliers in urban areas to adopt water management plans every five years. The Sonoma County Water Agency (the Agency or SCWA) is a water supplier subject to UWMPA. At issue here is the legal adequacy of the Agency's 2005 Urban Water Management Plan (the Plan). Respondents Sonoma County Water Coalition et al. (Coalition)*fn2 unsuccessfully challenged elements of the Plan before the Agency, and then sought a writ of mandate from the Sonoma Superior Court seeking to enjoin the Agency from adopting or implementing the Plan, and directing the Agency to adopt a legally adequate plan.

The lower court granted the writ on the basis that the Plan (1) failed to provide the detailed water supply information required by UWMPA and (2) was not coordinated with other water supply regulators. The Agency appeals, contending that the trial court failed to accord deference to the expertise and discretion of the Agency, improperly made de novo determinations, and imposed requirements not found in the Act.*fn3 We agree with the Agency and reverse.

I. Factual and Procedural Background*fn4

The Agency is a public entity created by special legislation enacted in 1949. (Appen. § 53-1 et seq.) It is a water wholesaler to eight public agency water contractors and other retail water suppliers, which use water from the Agency, augmented in some cases by their own local supplies, to provide water service to customers within their service areas. The Agency's water service area covers a large part of Sonoma County and the northern portion of Marin County. It provides potable water to approximately 600,000 people. Agency's customers include the Marin Municipal Water District, North Marin Water District, City of Petaluma, City of Rohnert Park, City of Santa Rosa, City of Sonoma, Valley of the Moon Water District, Town of Windsor, City of Cotati, Forestville Water District, and the California-American Water Company. Its source of supply is the Russian River watershed.

The Agency serves water to its customers pursuant to a Restructured Agreement for Water Supply (Agreement), which was entered into in 2006 and extends to 2040. This Agreement sets the maximum amounts of water the Agency is obligated to supply to its customers, and describes the methodology for allocating supplies in times of shortage. The Agency's powers and duties include flood control, wastewater treatment, and power generation. (Appen. § 53-3.) The Agency also maintains watershed and fisheries enhancement programs that include riparian restoration projects.

An Urban Water Management Plan (UWMP) is prepared and/or updated every five years and addresses the supply of water over the following 20 years. (§§ 10620; 10621, subd. (a); 10631, subd. (a).) The Agency retained the engineering firm of Brown and Caldwell to assist in the preparation of the Plan.*fn5

A draft plan was made available for public review on October 30, 2006. The Agency held a noticed public hearing on the Plan on December 5, 2006. (§ 10642.) Comments were submitted by Coalition, among others, challenging several elements of the Plan and contending that it contained "major deficiencies." The Agency's board of directors*fn6 adopted the Plan on December 12, 2006. As required by law, the Agency submitted its adopted Plan to the California Department of Water Resources for review (§ 10644), which accepted the Plan as complete.

Coalition filed a petition for writ of mandate on March 19, 2007. The case was heard based solely upon the administrative record and the pleadings.*fn7 The trial court issued its decision on October 29, 2008, and granted the preemptory writ. In a comprehensive and detailed written opinion, the court determined that the Plan was not supported by substantial evidence, and failed to comply with statutory requirements. More specifically, the court found the Plan to be deficient in that: (1) the Agency "failed to coordinate with relevant agencies" as required by UWMPA; (2) the Plan failed to include the degree of specificity required by UWMPA; (3) the Plan failed to adequately consider certain environmental factors (specifically environmental impacts on endangered salmonid species); (4) the Plan failed to adequately address the effect of recycled groundwater on the future water supply; and (5) the Plan failed to quantify with reasonable specificity the scope of demand management measures relied upon to address anticipated water shortfalls. Judgment was entered on November 26, 2008. The Agency filed a timely notice of appeal.

II. Discussion

A. UWMPA

"In 1983, the Legislature adopted [UWMPA] to promote the active management of urban water demands and efficient water usage in order to protect the people of the state and their water resources. (Stats. 1983, ch. 1009, § 1, p. 3555.)" (Friends of the Santa Clara River v. Castaic Lake Water Agency (2004) 123 Cal.App.4th 1, 8 (Friends of the Santa Clara River).) In UWMPA, the Legislature declared that "[t]he conservation and efficient use of urban water supplies are of statewide concern; however, the planning for that use and the implementation of those plans can best be accomplished at the local level." (§ 10610.2, subd. (a)(2).) "To achieve the goal of water conservation and efficient use, [local] urban water suppliers are required to develop water management plans that include long-range planning to ensure adequate water supplies to serve existing customers and future demands for water. (§ 10610.2, subds. (d) & (e).)" (Friends of the Santa Clara River, at p. 8.) A plan is intended to function as a planning tool to guide broad-perspective decisionmaking by the management of water suppliers. "The plans must consider a 20-year time horizon (§ 10631, subd. (a)) and must be updated 'at least once every five years on or before December 31, in years ending in five and zero' (§ 10621, subd. (a))." (Friends of the Santa Clara River, at p. 8.)

UWMPA requires that a plan address a broad range of specific issues. Among other elements, a plan must provide information on a supplier's water usage, resources, reliability planning, demand management measures, and shortage contingency planning. (§§ 10631, 10632, 10633.)*fn8 It also sets forth the procedures that suppliers "must follow when preparing, reviewing, and amending their plans. (§§ 10640-10645; see generally Waterman, Addressing California's Uncertain Water Future By Coordinating Long-Term Land Use and Water Planning: Is A Water Element in the General Plan the Next Step? (2004) 31 Ecology L.Q. 117, 162-166 [overview of UWMPA].)" (Friends of the Santa Clara River, supra, 123 Cal.App.4th at p. 8.)

The questions we address here are: 1) whether a court may weigh conflicting evidence in evaluating the sufficiency of a plan under the Act; 2) what degree of specificity and certainty is required by the Act in addressing the necessary elements of a plan; and 3) what is the scope of an agency's duty under the Act to "coordinate" with other agencies in preparation of a plan?

B. Standard of Review

"In any action or proceeding to attack, review, set aside, void, or annul a plan, or an action taken pursuant to the plan by an urban water supplier on the grounds of noncompliance with this part, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the supplier has not proceeded in a manner required by law or if the action by the water supplier is not supported by substantial evidence." (§ 10651.)

"The role of an appellate court in reviewing an administrative record for a 'prejudicial abuse of discretion' under section 10651 is precisely the same as the role of the superior court and, therefore, the lower court's findings of fact and conclusions of law are not binding on the appellate court. [Citation.]" (Friends of the Santa Clara River, supra, 123 Cal.App.4th at p. 9.) In assessing whether the Agency employed the correct procedures, we review the Agency's decision de novo, " 'scrupulously enforc[ing] all legislatively mandated... requirements.' " (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard) [applying similar California Environmental Quality Act (CEQA) standard under Pub. Resources Code, § 21168.5*fn9 ].) "[W]e accord greater deference to [an] agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court 'may not set aside an agency's [decision] 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.' [Citation.]" (Vineyard, at p. 435.) Our role in mandamus review of such quasi-legislative administrative decisions is to " 'ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.' [Citation.]" (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 577 (Western States).)

The Substantial Evidence Standard

In determining whether an agency has prejudicially abused its discretion, " 'the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [agency's decision].' " (Western States, supra, 9 Cal.4th at p. 571.) The substantiality of the evidence supporting an agency decision is a question of law governed by the same rules used to decide the substantiality of the evidence supporting findings of fact made in a trial court. (Id. at pp. 570-571, 573.)

"Substantial evidence is defined as 'enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' [Citations.]" (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391.) The court indulges all reasonable inferences from the evidence that would support the agency's determinations. (Western States, supra, 9 Cal.4th at p. 571.) " 'A court may not set aside an agency's [decision] on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] A court's task is not to weigh conflicting evidence and determine who has the better argument.... We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.' " (Id. at pp. 573-574.)

Our review for substantial evidence applies a deferential standard that is satisfied if "the record contains relevant information that a reasonable mind might accept as sufficient to support the conclusion reached." (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 968 (Great Oaks).) If more than one inference can be drawn from the evidence, " 'a reviewing court is without power to substitute its deductions' " for those of the agency. (Western States, supra, 9 Cal.4th at p. 571.) " 'In general, the court does not weigh the evidence adduced before the agency or substitute its judgment for that of the agency. [Citation.] The court will not concern itself with the wisdom underlying the agency's action.' [Citation.]" (California Sportfishing Protection Alliance v. State Water Resources Control Bd. (2008) 160 Cal.App.4th 1625, 1639.)

Coalition argued below, and the trial court agreed, that several significant elements of the Plan lacked substantial evidence to support them.*fn10 The Agency and Amici contend that the trial court failed to give appropriate deference to the Agency's expertise, and improperly weighed and considered the conflicting evidence and Coalition's arguments in reaching its conclusions. As a result, they argue that the trial court applied a standard of review not permitted by the Act, and one which we may not apply here. We agree.

C. Reliability of the Water Supply

UWMPA requires agencies to "[d]describe the reliability of the water supply" and then, "[f]or any water source that may not be available at a consistent level of use, given specific legal, environmental, water quality, or climatic factors, describe plans to supplement or replace that source with alternative sources...." (§ 10631, subd. (c).) Coalition contends that the Plan failed to adequately address the constraining effect of threatened and endangered species on the reliability of the Agency's water supplies. Thus, they allege, the Plan improperly assumed availability of its future water supplies when the presence of endangered salmonids in the Eel and Russian rivers creates substantial uncertainty as to the reliability of those sources of supply. Coalition argues that the Act requires "identification and analysis of any future water supply that has the possibility of not materializing or the possibility of not being available to the extent stated in the plan... [, and] requires agencies to 'describe plans to supplement or replace th[ose] source[s] with alternative supplies.' (§ 10631[, subd.] (c).)"

1. Existing Water Supply and Water System

As summarized by the Agency, and undisputed by Coalition, the Plan describes the existing water resources in two sections--the water system in Section 2 and the water supply in Section 4. The Agency's water resources and supply facilities within the Russian River watershed are depicted in Figure 2-1 of the Plan.

Most of the Agency's water supply comes from water stored in two reservoirs--Lake Sonoma, located in Northern Sonoma County on Dry Creek (a Russian River tributary), and Lake Mendocino, located in Mendocino County on the upper Russian River. Lake Sonoma is formed by water impounded by the Warm Springs Dam on Dry Creek and collects runoff from a 130-square-mile drainage area. The lake has a design storage capacity of 381,000 acre-feet of water,*fn11 which includes 245,000 acre-feet of water supply pool capacity. The Agency also stores water in Lake Mendocino, which is formed by water impounded by the Coyote Valley Dam located on the East Fork of the upper Russian River. Lake Mendocino holds water from a 105-square-mile drainage area together with water diverted by PG&E from the Eel River and released into the Russian River watershed by PG&E's Potter Valley Power Plant (PVP) on the East Fork of the upper Russian River. Lake Mendocino has a design storage capacity of 122,500 acre-feet, including 72,000 acre-feet of water supply pool capacity, which can be expanded in the summer to 86,000 acre-feet.

The Agency has the right to store water in the water supply pools of both reservoirs and to control releases from those water supply pools. Water is released from the two reservoirs and then taken by the Agency from the Russian River using diversion facilities located near Forestville, several miles downstream from the confluence of Dry Creek and Russian River. At its diversion facilities, the Agency pumps water from the underflow of the Russian River, and then transmits it via the Agency's transmission system--a series of manmade pipes, pumps, and storage tanks--to its customers. Under its water rights permits with the State Water Resources Control Board (SWRCB), the Agency has the right to divert and redivert 75,000 acre-feet of water per year from the Russian River. A few of the Agency's customers take water directly from the Russian River, using the Agency's water rights.

The United States Army Corps of Engineers (USACE) controls releases from the reservoirs for flood management. The Agency also has the right to directly divert streamflow in the Russian River during certain seasons. The Agency controls water supply releases from Lake Sonoma into Dry Creek. Releases into Dry Creek augment flows in the lower Russian River that supply the Agency's diversion facilities. Flows in the Russian River and Dry Creek are governed by SWRCB "Decision 1610," which requires that minimum instream flows be maintained during the summer months through releases from reservoir storage. (Cal. State Water Resources Control Bd., Dec. 1610 (Apr. 17, 1986) pp. 47-61.) The flow rates specified in Decision 1610 are based on a 1985 agreement between the Agency and the California Department of Fish and Game specifying the minimum flows necessary for instream beneficial uses in both Dry Creek and the Russian River. The Agency's reservoir releases are subject to these minimum instream flow requirements, which are incorporated into the Agency's water rights permits.

About 5 percent of the Agency's total water supplies come from groundwater The Agency operates three groundwater wells located along one of the Agency's transmission pipelines, between Forestville and Cotati.

2. Proposed Expansion of the Water Supply

To meet expected future needs, the Plan anticipates increasing the Agency's diversions from the Russian River by an additional 26,000 acre-feet per year. In order to do so, the Agency plans to implement the Water Supply, Transmission, and Reliability Project (the Water Supply Project or WSTRP) to expand its transmission and diversion facilities and capacity.

The Agency had applied to SWRCB for permit amendments allowing it to increase its diversions to a total of 101,000 acre-feet per year, and the Plan projected that the increase in supply would become available in 2016. The Plan concluded that the assumption that SWRCB would approve the increased diversions by 2016 was reasonable because (1) the physical water supply supporting the additional requested diversion already existed in Lake Sonoma; (2) the Agency would have completed its consultation with National Marine Fisheries Service (NMFS; now known as the National Oceanic and Atmospheric Administration Fisheries Service) relating to the federal Endangered Species Act (ESA) compliance for the Water Supply Project by that time; and (3) the 2016 date represented the professional opinion of Agency staff as to the date the Agency approval of increased diversions would be approved, given the various regulatory processes involved, including CEQA review*fn12 and completion of the ESA consultation process.

The trial court found uncertainty in two elements of the Plan's proposed future water supply: (1) the Agency's ability to actually increase Russian River diversions from 75,000 acre-feet/year to 101,000 acre-feet/year, and (2) the continued availability of the Eel River water at current levels for use by the Agency. The trial court criticized the Plan's reliance on the assumed approval of the Water Supply Project in the face of the Plan's recognition that "State and federal agencies, including [NMFS] (under ESA) and [SWRCB] (which issues water rights permits) could impose requirements that would change the Water [Supply] Project." The court observed that "Even if the Water [Supply] Project is completed within the anticipated time frame, approval of a permit for an increase in Russian River diversions is tenuous.... If [Agency's] application for the increased diversions [is] rejected, allowing diversions only at the current levels, the projected demand would outstrip the available supplies by 2016 in multiple dry year periods. [Citation.] The UWMPA demands not only a full analysis of the uncertainties of the critical future supply, but equally important, a full discussion of SCWA's 'plans to replace that source with alternative sources.' "

The court correctly noted that the Plan relied on certain assumptions in projecting its water supply. The assumptions on which the Plan's evaluations and conclusions were predicated were explicitly recognized and articulated. The four key assumptions in the Plan were: (1) "that the listing of three salmonid species as threatened or endangered under [ESA] will not reduce the amount of water it can supply;" (2) "that PG&E's existing Federal Energy Regulatory Commission (FERC) license for the [PVP] will not be interpreted or modified, or a new license changed to reduce the amount of water available for diversion by the Agency through its Russian River Diversion Facilities;" (3) "that [the Agency] will construct and operate facilities described in [WSTRP];" and (4) that "the Agency will obtain water rights from [SWRCB] to increase its Russian River diversions to 101,000 acre-feet per year by 2016." The Plan noted that these assumptions reflected the Agency's view "about the most likely outcome of decisions of regulatory agencies over the 20-year planning period. The Agency recognizes that regulatory agencies may make different decisions or take different actions than those assumed by the Agency, which may affect the availability of water and the adequacy of the Agency's transmission system. The Agency concludes, given the facts currently available, that the assumptions in this Plan are reasonable, but will monitor the assumptions and update subsequent Plans as necessary." The Plan further observed that "[i]f one or more of these assumptions do not come to pass, there are other potential alternative projects that could be evaluated and potentially implemented to mitigate the effect of any reduction in water supply caused thereby. These are discussed in Section 4.7."

The court questioned the validity of these assumptions and essentially agreed with Coalition's position that any plan that fails to identify alternatives to less-than-certain supplies is legally deficient as a matter of law--that if any possibility exists that a water source may not be available in the future, the Agency is required to develop a backup plan. Coalition focuses on the use of the phrase "may not be available" in the section 10631, subdivision (c), and argues that the term "may" means simply "[t]o be a possibility" (citing Black's Law Dict. (9th ed. 2009) p. 1068). Coalition provides no other authority for the proposition that the Legislature intended such a broad application. As we discuss post, we cannot agree that the Act imposes a planning threshold based on a bare possibility, particularly if there is substantial evidence supporting the Agency's contrary conclusion.

As Amici observe, and as the voluminous record below amply demonstrates, some level of uncertainty is "a permanent, inherent feature of modern water management. It arises from a wide range of scientific and legal regulatory factors that cannot be avoided." Water management is subject to the vagaries of climate, competing demands from agricultural, industrial and residential uses, environmental constraints, and overlapping regulatory regimes at both the federal and state levels. In rejecting the Agency's conclusions, the court required a level of certainty not factually attainable and not required by the statute, and substituted its own judgment as to the reasonableness of the assumptions relied upon by the Agency. This was error.

The issue that we must consider, and the question that the trial court should have addressed, is not whether alternative assumptions would have been reasonable, or perhaps even more reasonable than those made, but whether the assumptions that were made are supported by substantial evidence. We find that they are.

D. Endangered Fish Species

1. NMFS Issues

The Plan acknowledged that two salmonid species found in the Russian River watershed--Chinook salmon and steelhead--had been listed as "threatened" under ESA, and one species--Coho salmon--had been listed as "endangered" under both ESA and the California Endangered Species Act. As a result of a 1997 agreement between the Agency, USACE and NMFS, an assessment was made under Section 7 of ESA of the impact of the Agency's water supply operations on these species. The Russian River Biological Assessment (the Biological Assessment) was submitted to NMFS in 2004. The purpose of the Biological Assessment was to provide a basis for NMFS to issue a Biological Opinion on the impact of the Agency's operations on endangered salmonid species and their habitat.*fn13 It proposed structural changes to the Agency's facilities, operations, and maintenance procedures, concluding that the changes would benefit the endangered salmon species while providing "balance between activities that would provide essential services like water supply and flood control and potential adverse effects to listed salmonids and to the ecosystem on which they depend."

The Biological Assessment opined that flow levels in the Russian River and Dry Creek might be higher than optimal for the listed species, and contained a proposal to reduce instream flow requirements for both the Russian River and Dry Creek (the Flow Proposal). The effects of the Flow Proposal were analyzed using computer models--the Russian River System Model and Russian River Water Quality Model to predict daily flow, temperature, and other variables at specific locations along the Russian River and Dry Creek. The analysis concluded that the Flow Proposal would (1) improve the quality and quantity of summer rearing habitat for salmonids in the Russian River and Dry Creek; (2) provide sufficient water to satisfy the Agency's existing water demands; and (3) provide sufficient water to meet future demands on the Agency's system, assuming implementation of the planned Water Supply Project.

The Plan acknowledged that it was uncertain what flow modifications NMFS might require the Agency to undertake, or the extent to which flow restrictions might be approved by SWRCB, but concluded that it was reasonable to assume that any restrictions would not reduce the amount of water that the Agency could supply, and would take into consideration the habitat conservation and restoration projects the Agency had undertaken. The Agency noted its longstanding cooperative relationship with NMFS and believed it was reasonable to assume that, while this might impose some constraints under ESA, the NMFS Biological Opinion would also contain "reasonable and prudent alternatives" that would allow the Agency to meet the water supply demands of its contractors and customers.

The trial court disagreed and concluded that the Plan was "inherently inconsistent" because it "admit[ted] that [the NMFS] Biological Opinion 'may require the Agency to modify its water supply facilities or operations,' " which, the court concluded, "directly undercuts the Plan's assumption that 'ESA constraints will not affect or impair the water supply available to the Agency for delivery,' and throws substantial doubt on the reliability of the Agency's key water supplies in the future." The trial court found that the Biological Assessment "explicitly states that the actions taken to protect [salmonids] will reduce water supplies available to the [Agency]." It further found that the Agency's ability to increase the amount of water it supplies to its contractors and customers in the future would be hampered by ESA constraints imposed by NMFS. It held that the section 10631, subdivision (c) of UWMPA "demands not only a full analysis of the uncertainties of this critical future supply, but equally important, a full discussion of [the Agency's] 'plans to replace that source with alternative sources.' "

The Biological Assessment actually came to a very different conclusion and did not determine that the Flow Proposal's recommendations would threaten the Agency's water supplies. The Biological Assessment instead concluded that existing and future demand levels could be met under the Flow Proposal without any significant changes to the Agency operations. The Biological Assessment evaluated the potential impacts of a variety of activities in the Russian River watershed on listed salmonid species and their habitat, includ[ing USACE] flood control operations; dam operation and maintenance; hydroelectric operations; flow and estuary management; channel maintenance for flood control and water supply needs; operation of fish production facilities and water supply and transmission operations. The Biological Assessment proposed a number of mitigation measures to improve habitat conditions for the salmonid species, including structural and operational changes at Warm Springs Dam, Coyote Valley Dam, and the Agency's diversion facilities, modified channel maintenance and management activities, changing fish production facility operations, eliminating breaching of the sandbar at the mouth of the Russian River during the summer, and developing water supply measures to meet future demand while protecting fish habitat.

The Flow Proposal was one of "a suite of alternative flow proposals to improve conditions for salmonids, while continuing to meet the water supply needs of the region," and was designed to improve habitat conditions "while continuing to meet water demands now and in the future at the water demand levels projected in [WSTRP]." The conclusion in the Biological Assessment was that WSTRP "would provide a safe, economical, and reliable water supply to meet future needs in the [Agency] service area."

Coalition points to an April 2006 letter submitted by the Agency commenting on Sonoma County's proposed General Plan 2020 Draft EIR, in which Coalition contends that the Agency "unambiguously admitted that its future supplies are uncertain." In its comments, the Agency stated that "changes in regulations to protect listed salmonids could affect the Agency's ability to deliver the full allocation allotted under the [current contracts]." (Italics added.) However, certainty was not what the Agency claimed nor, as we discuss post, what the Act requires.

While acknowledging uncertainty as to what modifications NMFS might ultimately require the Agency to implement, the Plan concluded that "given the analysis set forth in the Biological Assessment and the Agency's ongoing communications with NMFS staff, it is reasonable to assume that with the implementation of mitigation measures, ESA constraints will not affect or impair the water supply available to the Agency for delivery to its transmission system customers." That conclusion was supported by substantial evidence.

2. The Eel River Flows

The trial court also questioned the Plan's assumption that FERC licenses for PG&E's PVP would not be further modified to require flow adjustments from the Eel River in order to protect the endangered salmonid species.*fn14 The Plan concluded that it was reasonable to assume that the FERC license would not be changed in such a way as "to reduce the amount of water available for diversion by the Agency through its Russian River Diversion Facilities."

Pursuant to its FERC license, PG&E diverts water from the Eel River to generate power at PVP. (Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 865-866 (Friends of the Eel River).) An average of about 160,000 acre-feet per year are diverted from the Eel River Basin into the Russian River Basin. (Fed. Energy Reg. Com. (Jan. 28, 2004) 106 FERC ¶ 61,065, par. 3 [order amending license].) Some of this water is then released into the East Fork of the upper Russian River pursuant to a 1965 agreement between PG&E and the Agency and PG&E's FERC license, and ultimately flows into Lake Mendocino.*fn15 (Friends of the Eel River, at p. 866.) "[M]ost of the summer water flow in the Russian River consists of water diverted from the Eel River." (Ibid., italics omitted.)

The Plan discussed the factors on which it based its conclusion that FERC would be unlikely to further significantly reduce PVP diversions. The Agency acknowledged that the diversion of water from the Eel River watershed into the Russian River watershed has been a source of controversy. It noted, however, that because diversion had been ongoing for almost 100 years, and because extensive agricultural, municipal and commercial economies had developed during that time relying on those diversions, it was reasonable to assume that PVP diversions into the Russian River watershed would continue.

In reaching its conclusion that the FERC license would not be further modified in a manner that would reduce diversions to the Russian River watershed, the Agency considered that, in the prior license amendment proceedings, FERC had explicitly recognized the importance of the PVP diversions to Mendocino and Sonoma Counties, in both an EIR and in its previous orders.*fn16 It also noted that the PVP license served multiple purposes, "including power generation,... agricultural irrigation, and summer flow augmentation in the middle and upper Russian River." Further, the early fall releases of water stored in Lake Mendocino made available by PVP diversions are beneficial to the fall migration of threatened Chinook salmon in the Russian River watershed, as acknowledged in an SWRCB order approving temporary reduction of flows above Healdsburg in order to conserve water in Lake Mendocino for the benefit of Russian River salmon.

Coalition cites to comments made by the Agency in the prior FERC/PG&E licensing proceedings (FERC Project No. 77-110). In that proceeding, PG&E and NMFS, along with two other wildlife agencies, filed a proposal to decrease the amount of water diverted from the Eel River to the Russian River by 22 percent. (Friends of the Eel River, supra, 108 Cal.App.4th at p. 866.) The Agency opposed this proposal and "put forward an alternate proposal for curtailing diversions from the Eel River by 10 percent by the year 2022. In so doing, the Agency pointed out that cutting off Eel River water to the extent proposed in the [PG&E recommendation] would have severe environmental consequences to the Russian River, including the risk of dewatering portions of that river during critically dry years because of the impossibility of maintaining 'prudent water storage reserves.' " (Id. at pp. 866-867.) In Friends of the Eel River, the court concluded that failure to discuss the then proposed Eel River diversion curtailments rendered the Agency's EIR (for the Water Supply Project) defective. (Id. at pp. 872, 874-875.) But the Act expressly exempts preparation of a plan from therequirements of CEQA.*fn17 (§ 10652.)

Again, Coalition argues that since the Agency has recognized the possibility that FERC could further reduce the PVP flows,*fn18 and "[i]f there is a 'possibility' that the [FERC] license may be 'modified... in a way that would reduce' the Agency's future water supplies... then that water source... 'may not be available at a consistent level of use' in the future," triggering a duty to consider and discuss alternatives under section 10631, subdivision (c). Again, we disagree that the existence of a "possibility" of an adverse circumstance, which a water supplier, based on substantial evidence, concludes is unlikely to occur, requires a supplier to construct alternative scenarios. In determining if substantial evidence supports the conclusion reached by the Agency, we look to "whether the record contains relevant information that a reasonable mind might accept as sufficient to support the conclusion reached." (Great Oaks Water Co. v. Santa Clara Valley Water Dist., supra, 170 Cal.App.4th at p. 968.) Even if we might also readily draw the inferences which Coalition urges us to accept, there is nevertheless substantial evidence in support of the Agency's contrary conclusion, precluding a reviewing court's consideration or evaluation of conflicting evidence or inferences.

It was error for the court to substitute its judgment for that of the Agency, and in doing so it failed to give appropriate deference to the Agency's expertise. (County of Sacramento v. State Water Resources Control Bd. (2007) 153 Cal.App.4th 1579, 1586.) " 'In general, the court does not weigh the evidence adduced before the agency or substitute its judgment for that of the agency. [Citation.]' " (California Sportfishing Protection Alliance v. State Water Resources Control Bd., supra, 160 Cal.App.4th at p. 1639.) There was substantial evidence to support the Agency's conclusion, i.e., " 'enough relevant information and reasonable inferences from this information that a fair argument can be made to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.