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Aqualliance v. U.S. Bureau of Reclamation

United States District Court, E.D. California

July 14, 2017

AQUALLIANCE, et al., Plaintiffs,
v.
U.S. BUREAU OF RECLAMATION, et al., Defendants.

          REQUEST FOR SUPPLEMENTAL BRIEFING RE CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 45, 48, 49, 50)

          Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

         Plaintiffs[1], various water resource management and conservation organizations, challenge Defendants'[2] “10-year water transfer program to move water from sellers located upstream of the Sacramento/San Joaquin Delta (‘Delta') to willing buyers south of the Delta (the ‘Project').” ECF No. 16, First Amended Complaint (“FAC”) at ¶ 2. Specifically, Plaintiffs assert Defendants violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq., and the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code §§ 21000, et seq., by approving the Project's Final Long-Term Water Transfers Environmental Impact Statement/Environmental Impact Report (“the FEIS/R[3]”). Plaintiffs also assert FWS's approval of the Project's Final Biological Opinion (“BiOp”) and Incidental Take Statement (“ITS”) violated the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq. FAC at ¶ 1.

         Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 45, 48, 49, 50. The parties did not request a hearing on the motions and the Court did not set one. The matter became ripe for decision upon the lodging of the last portion of the Administrative Record (“AR”) on December 2, 2016. Since then, the Court has devoted substantial resources to digesting the parties' complex, overlength briefs (totaling almost 200 pages) and reviewing the thousands of pages of cited material from the AR. In the course of this review, which is not yet complete, the Court has determined that it requires additional information from the parties on several issues related to the manner by which the FEIS/R defines certain baseline conditions against which Project impacts to the environment are measured.[4]

         1. CEQA Challenge to Baseline Treatment of Groundwater Demand

         Among the many dozens of issues raised in these cross motions, Plaintiffs argue that models utilized in the FEIS/R violate CEQA[5] because those models ignore consistent, documented historical growth in water supply demand. ECF No. 45 at 23. The models in question are designed to approximate a fixed level of development, with the model more relevant to surface water impacts using a 2005 level of development and another model more relevant to groundwater impacts using a 2010 level of development. AR 27430. “This means that population, land use, and agricultural demands used in the models are representative of demands that existed in those years.” Id. “These demands are then used with historical hydrology inputs, primarily precipitation, reservoir inflows, and unregulated flows, in model simulations.” Id. With respect to those aspects of the modeling in the FEIS/R linked to groundwater impacts, the FEIS/R concludes that, even though there have been changes in demand since 2010, the use of 2010 demand levels is appropriate because that model incorporates more recent information relevant to groundwater demand, including land use surveys and precipitation records, designed to make demands vary in each year of simulation, “with higher demands for groundwater in drier years.” AR 27430-31. In light of the information incorporated into the model, the FEIS/R further concludes that: “[w]hile there have been changes in demand since 2010, the range of demands simulated . . . is representative of existing conditions in the Sacramento Valley.” AR 27431 (emphasis added).

         Under CEQA, the determination of the baseline is the first step in the impact review process. Save Our Peninsula Comm. v. Monterey Cty. Bd. of Supervisors, 87 Cal.App.4th 99, 125 (2001). “Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods.” Id. “[A]n agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence.” San Francisco Baykeeper, Inc. v. California State Lands Comm'n, 242 Cal.App.4th 202, 218 (2015) (internal citation and quotation omitted). Under CEQA, a court must “apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR's analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” City of Long Beach v. Los Angeles Unified Sch. Dist., 176 Cal.App.4th 889, 898 (2009). Such a challenge therefore must be rejected if substantial evidence supports the agency's approach and the EIR is not clearly inadequate or unsupported. Id.

         Therefore, the question is whether the record contains substantial information to support the FEIS/R's conclusion. See Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184, 1198 (2004) (“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.”). Plaintiffs argue that substantial evidence does not support the use of the chosen approach to setting a baseline within the groundwater model, in light of the “backdrop of decades of persistent growth in groundwater demands.” ECF No. 45 at 24. Plaintiffs correctly point out that data in the FEIS/R indicates groundwater pumping grew consistently from 1961 (250, 000 [Acre Feet (“AF”)]) to 2003 (800, 000 AF). AR 25625. In light of this trend, Plaintiffs argue that there is no support for the FEIS/R's conclusion that “the range of demands simulated . . . is representative of existing conditions in the Sacramento Valley.” ECF No. 45 at 24. Plaintiffs' argument suggests, therefore, that the modeling parameters must be adjusted to account for an overall upward trend in groundwater demand, a trend that (if it persists) presumably could cause the overall “range of demands” in the relevant region(s) to increase over time. In other words, by assuming that the “range of demands” is governed by fixed inputs as of a date certain (2010) that predates the start of the Project, the modeling process fails to account for demand growth that could materially alter the “range of demands” over time. In light of the record evidence cited by Plaintiffs demonstrating a consistent upward trend in groundwater demand, see AR 25625, it is reasonable to conclude, in the absence of contrary record evidence, that demand would continue to rise over time, including over the 10 year life of this project. However, apart from the conclusory assertion that “the range of demands simulated . . . is representative of existing conditions in the Sacramento Valley, ” the Court has been unable to identify record evidence supporting this conclusion.

         Because Plaintiffs' cross motions raise so many issues, limiting both their ability to flesh out each issue and the ability of Defendants to respond in a sufficiently detailed manner, the Court believes it will be helpful to receive supplemental briefing to allow further development of the following questions related to the baseline treatment of groundwater demand:

• In light of the record evidence demonstrating a long-term upward trend in groundwater demand, what record evidence exists to support the FEIS/R's apparently contradictory decision to use a fixed level of demand in its modeling efforts? Is there record evidence demonstrating that the historical trend is not likely to continue or is not likely to be material? Alternatively, is there record evidence demonstrating why any likely changes in demand are encompassed within the “range of conditions” the FEIS/R did consider?
• Among other things, the parties should address directly the FEIS/R's conclusion that “the range of demands simulated in SACFEM2013 is representative of existing conditions in the Sacramento Valley” and whether it is even appropriate to define the baseline using “existing” conditions, rather than by adjusting conditions to reflect changing water demands.
• The Court directs the parties not to rely predominantly on string-citation of page references from AR, as has been the prevalent practice in the briefs filed thus far. The parties must explain why they believe their record citations support their position(s).

         2. Analysis of Climate Change Impacts (CEQA and NEPA)

         Plaintiffs also argue that the FEIS/R as a whole fails to assess meaningfully impacts associated with ongoing climate change. ECF No. 45 at 25. As to this argument, Plaintiffs assert the FEIS/R violates both CEQA and NEPA. Id. at 28. The CEQA standards discussed above are equally relevant to this issue. In general, the applicable NEPA standards are similar. An EIS must first describe the baseline conditions of the affected environment. 40 C.F.R § 1502.15; see also Half Moon Bay Fishermans' Mktg. Ass'n v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988) (“Without establishing the baseline conditions which exist in the vicinity of [a project] before [project operations begin], there is simply no way to determine what effect the [project] will have on the environment and, consequently, no way to comply with NEPA.”). It is less clear to what extent NEPA specifically requires the baseline to reflect conditions as they are projected to change over time. Plaintiffs point to a Draft Guidance issued by the Council on Environmental Quality (“CEQ”) in 2010, which advised as follows:

When assessing the effects of climate change on a proposed action, an agency typically start[s] with an identification of the reasonably foreseeable future condition of the affected environment for the “no action” alternative based on available climate change measurements, statistics, observations, and other evidence. See Considering Cumulative Effects (CEQ 1997) at www.nepa.gov. The reasonably foreseeable affected environment should ...

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