1 2 3 4 5 6 JOSEPH P. BYRNE, GENERAL COUNSEL Bar No. 190365 Joseph.Byrne@bbklaw.com CHARITY SCHILLER, Bar No. 234291 Charity.Schiller@bbklaw.com AMY HOYT, Bar No. 149789 Amy.Hoyt@bbklaw.com Best Best & Krieger LLP 3390 University Avenue, 5th Floor P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Facsimile: (951) 686-3083 Exempt from filing fees Govt. Code § 6103 7 8 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 9 [Additional Counsel on Next Page] 10 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF FRESNO 13 14 STATE WATER CONTRACTORS and KERN COUNTY WATER AGENCY 15 Case No. Filed under California Environmental Quality Act (CEQA) Petitioners/Plaintiffs, 16 v. 17 18 19 STATE OF CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE, STATE OF CALIFORNIA DEPARTMENT OF WATER RESOURCES, and DOES 1 through 100, 20 21 Respondents/Defendants/ Real Parties in Interest. STATE WATER CONTRACTORS AND KERN COUNTY WATER AGENCY’S VERIFIED PETITION FOR WRIT OF MANDATE FOR VIOLATION OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND THE CALIFORNIA ENDANGERED SPECIES ACT (Code of Civ. Proc. §§ 1085 & 1094.5; Pub. Resources Code § 21000 et seq.; Fish & Game Code § 2050 et seq.) 22 23 24 ROES 1 through 100, Real Parties in Interest. [Deemed Verified as to Kern County Water Agency pursuant to Code of Civ. Proc., § 446] 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 1 ADDITIONAL COUNSEL 2 WILLIAM M. SLOAN, Bar No. 203583 WMSloan@Venable.com CHELSEA E. O'SULLIVAN, Bar No. 308369 ceosullivan@Venable.com Venable LLP 101 California Street, Suite 3800 San Francisco, CA 94111 Telephone: (415) 343-4490 3 4 5 6 7 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 8 9 10 11 12 13 14 AMELIA T. MINABERRIGARAI, GENERAL COUNSEL, Bar No. 192359 ameliam@kcwa.com KERN COUNTY WATER AGENCY 3200 Rio Mirada Drive Bakersfield, CA 93308 Telephone: (661) 634-1409 PAUL S WEILAND, Bar No. 237058 pweiland@nossaman.com Nossaman LLP 18101 Von Karman Ave Suite 1800 Irvine, CA 92612-0177 Telephone: (949) 833-7800 15 16 Attorneys for Plaintiff/Petitioner KERN COUNTY WATER AGENCY 17 18 19 20 21 22 23 24 25 26 27 28 -2VERIFIED PETITION FOR WRIT OF MANDATE 1 2 Petitioners and Plaintiffs State Water Contractors (“SWC”) and Kern County Water Agency (“KCWA”) allege as follows: 3 INTRODUCTION 4 1. 5 and delivery systems. It provides reliable water supply to nearly two-thirds of California’s 6 population and to 750,000 acres of agricultural land. This lawsuit involves how the SWP will be 7 operated over the next 10 years. 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 The State Water Project (“SWP”) is an integral part of California’s water storage 2. To facilitate those continued operations, Respondent California Department of Water Resources (“DWR”) must comply with the California Endangered Species Act, Fish & 10 Game Code § 2070 et seq. (“CESA”). To comply with CESA, DWR must obtain a permit from 11 Respondent California Department of Fish and Wildlife (“CDFW”) to operate the SWP. Acting 12 as lead agency, DWR prepared a Draft Environmental Impact Report (“DEIR”) that evaluated the 13 SWP Long Term Operation Project (“SWP LTO Project”) under the California Environmental 14 Quality Act, Public Resources Code § 21000 et seq. (“CEQA”).1 15 3. In its November 2019 DEIR, DWR concluded that the SWP LTO Project would 16 have no significant environmental impacts. The DEIR was supported by substantial evidence and 17 robust analysis. 18 4. In December 2019, however, the State abruptly backed away from its proposed 19 SWP LTO Project and pivoted to a new goal of no increases in SWP exports from the San 20 Francisco Bay/Sacramento-San Joaquin River Delta (“Delta”). DWR then submitted an 21 application for a take permit under CESA to CDFW, which proposed a project that was different 22 than the SWP LTO Project analyzed in the DEIR. In pursuing its new “no increases in SWP 23 exports” goal, the State disregarded the best available science and the substantial evidence 24 showing that increased exports could be achieved through more flexible operations informed by 25 real-time monitoring, without causing additional adverse impacts to the Delta and while fully 26 complying with CESA. 27 1 28 The implementing regulations for CEQA are found in title 14 of the California Code of Regulations § 15000 et seq., and are hereinafter referred to as the “CEQA Guidelines.” -3VERIFIED PETITION FOR WRIT OF MANDATE 1 To pursue this new goal, DWR approved a new project, the Refined Alternative 2b 2 Project, and certified a Final Environmental Impact Report (“FEIR”)—even though neither the 3 DEIR nor the FEIR analyzed the Refined Alternative 2b Project’s impacts on the environment. 4 Acting as a responsible agency under CEQA, CDFW relied on the FEIR to issue Incidental Take 5 Permit No. 2081-2019-066 (“ITP”) under CESA. DWR’s approval of the Refined Alternative 2b 6 Project and certification of the FEIR violated CEQA. CDFW’s issuance of the ITP based on the 7 FEIR violated CEQA and CESA. 8 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 5. 6. As alleged in detail below, the defects in both the procedure used to prepare the 9 FEIR, and in the analysis contained within the FEIR, are pervasive and fundamental. These 10 defects made informed decision-making and informed public participation impossible. The 11 actions violate CEQA’s procedural requirements and are reviewed de novo in this court. (See, 12 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512, 516.) The FEIR’s conclusions are 13 also not supported by substantial evidence. In short, the FEIR does not comply with either 14 CEQA’s procedural or substantive mandates. Because DWR relied on the defective FEIR when it 15 approved the Refined Alternative 2b Project, that approval must be rescinded. Moreover, because 16 CDFW relied on that same defective FEIR when it issued the ITP, the approval of the ITP 17 similarly fails under CEQA. 18 7. As also alleged in detail below, CDFW violated CESA in issuing the ITP. 19 Specifically, CDFW did not adhere to CESA’s requirements in imposing mitigation measures on 20 the SWP. Additionally, CDFW overreached to obtain operational control over the SWP—a 21 domain reserved by law to DWR. Finally, CDFW failed to explain the restrictions it imposed on 22 SWP’s operations, effectively regulating without notice or discussion. Such “regulation by 23 surprise,” which impacts water supply reliability for the people of California, is intolerable. 24 CESA dictates standards that must be met and boundaries that must be respected for CDFW to 25 lawfully impose restrictions on the SWP. Because CDFW did not comply with these standards, 26 the ITP approval must be rescinded for further consideration in compliance with CESA. As will 27 be demonstrated, CDFW committed pervasive and fundamental errors in issuing the ITP and in 28 implementing CESA’s substantive requirements. These defects are subject to de-novo review in -4VERIFIED PETITION FOR WRIT OF MANDATE 1 this court. (Environmental Protection Information Center v. California Dept. of Forestry & Fire 2 Protection (2008) 44 Cal. 4th 459, 478.) CDFW’s decision to issue the ITP is also not supported 3 by its findings and the findings themselves are not supported by substantial evidence. Because 4 the ITP violates CESA, it must be rescinded. 5 PARTIES LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 6 8. Petitioner and Plaintiff SWC is, and at all times mentioned herein was, a non-profit 7 mutual benefit corporation organized and existing under the laws of the State of California to 8 represent the common interests of 27 public water supply agencies that contract with the State of 9 California, through DWR, for participation rights from the SWP.2 The SWC’s member agencies 10 fund the construction, operation, and maintenance of the SWP and provide water from the SWP 11 to more than 25 million Californians and 750,000 acres of agricultural land, serving an area from 12 the Delta to the Bay Area, the Central Coast, Central Valley, and Southern California. Each of 13 the 29 regional and local public water supply agencies established under the laws of the State of 14 California, including each of the 27 members of the SWC, is party to a contract with DWR that 15 entitles it to participate in the SWP, and all but one SWC member agency receive SWP supplies 16 diverted from the Delta. The SWC’s member agencies have the right to use the SWP conveyance 17 system, and to receive a proportional share pursuant to an annual allocation that DWR makes 18 based on availability, which depends on precipitation, snowpack, available storage, water quality 19 and other regulations, as well as other factors. These contracts are central to the SWP’s 20 construction and operation because the water contractors fund all SWP capital and operating costs 21 associated with water supply. 22 23 24 25 26 27 28 2 These public agencies are located in the San Francisco Bay Area, along California’s Central Coast, in the Central Valley, and in Southern California. SWC’s member agencies are The Metropolitan Water District of Southern California, Kern County Water Agency, Tulare Lake Basin Water Storage District, Santa Clara Valley Water District, Alameda County Flood Control and Water Conservation District, Zone 7, Alameda County Water District, Antelope Valley-East Kern Water Agency, Casitas Municipal Water District, Santa Clarita Valley Water Agency, Central Coast Water Authority, City of Yuba City, Coachella Valley Water District, County of Kings, Crestline-Lake Arrowhead Water Agency, Desert Water Agency, Dudley Ridge Water District, Empire-West Side Irrigation District, Littlerock Creek Irrigation District, Mojave Water Agency, Napa County Flood Control and Water Conservation District, Oak Flat Water District, Palmdale Water District, San Bernardino Valley Municipal Water District, San Gabriel Valley Municipal Water District, San Gorgonio Pass Water Agency, San Luis Obispo County Flood Control and Water Conservation District, and Solano County Water Agency. -5VERIFIED PETITION FOR WRIT OF MANDATE 1 Petitioner KCWA is presently, and at all times relevant hereto has been, a public 2 agency created and existing pursuant to the Kern County Water Agency Act, Water Code 3 Appendix chapter 99, and located in Kern County, California. KCWA entered into a long-term 4 water supply contract with the State of California, acting through the Department of Water 5 Resources, on November 15, 1963, for State Water Project water. KCWA serves as the local 6 contracting entity in Kern County for the delivery of SWP water and is a member of SWC. 7 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9. 10. Respondent, Defendant, and Real Party in Interest DWR is an agency of the State 8 of California under the California Natural Resources Agency. DWR operates the SWP, which is 9 the nation’s largest state-built, multi-purpose, user-financed water project. DWR is the CEQA 10 lead agency charged with analyzing and disclosing the environmental impacts of the SWP long 11 term operations. On March 27, 2020, DWR approved the Refined Alternative 2b Project and 12 certified the FEIR. On March 30, 2020, the California Office of Planning and Research (“OPR”) 13 posted DWR’s Notice of Determination, which provides public notice of DWR’s actions under 14 CEQA, regarding DWR’s March 27th approval and FEIR certification. 15 11. Respondent, Defendant, and Real Party in Interest CDFW is an agency of the State 16 of California under the California Natural Resources Agency and is responsible for the 17 administration and enforcement of CESA. It also serves as a responsible agency under CEQA. 18 According to CDFW’s CEQA Notice of Determination, issued on March 27, 2020 (the very same 19 day that DWR approved the Refined Alternative 2b Project and certified the FEIR), CDFW 20 approved the ITP on March 27th, although the ITP itself is dated March 31, 2020. On April 1, 21 2020, OPR posted CDFW’s Notice of Determination for the ITP, which provides public notice of 22 CDFW’s actions under CEQA. 23 12. SWC and KCWA do not know the true names and capacities, whether individual, 24 corporate, associate, or otherwise, of Respondents and Defendants DOES 1 through 100, 25 inclusive, and therefore sue those Respondents and Defendants under fictitious names. Each of 26 the Respondents and Defendants is the agent and/or employee of Respondents DWR and CDFW, 27 and each performed acts on which this action is based within the course and scope of such party’s 28 agency and/or employment. Additionally, SWC and KCWA do not know the true names and -6VERIFIED PETITION FOR WRIT OF MANDATE 1 capacities, whether individual, corporate, associate, or otherwise, of Real Parties in Interest ROES 2 1 through 100, inclusive, and therefore sues those Real Parties in Interest under fictitious names. 3 SWC and KCWA will amend this Petition to show the true names and capacities of these Doe 4 Respondents and Roe Real Parties when those names and capacities have been ascertained. 5 6 13. This Court has subject matter jurisdiction pursuant to Public Resources Code 7 sections 21167, subdivision (a), 21168, and 21168.5, and Code of Civil Procedure sections 1060 8 et seq., 1085, and 1094.5. 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 JURISDICTION AND VENUE 14. Venue is proper in this Court under Code of Civil Procedure sections 401, 10 subdivision (1) and 395 because DWR and CDFW have their principal places of business and 11 legal residence in the County of Sacramento, and more specifically because the California 12 Attorney General has an office in the County of Fresno. (See Harris v. Alcoholic Beverage 13 Control Appeals Board (1961) 197 Cal.App.2d 759, 770-771.) 14 15 STANDING 15. SWC and KCWA’s water supply operations and water supply reliability, as well as 16 the water supply functions and use of SWC and KCWA’s members, will be directly and 17 adversely affected by: (1) DWR’s actions in certifying the FEIR and approving and implementing 18 the Refined Alternative 2b Project; and (2) CDFW’s reliance on that defective FEIR and issuance 19 of the legally flawed ITP. SWC and KCWA have no plain, speedy and adequate remedy in the 20 ordinary course of law in that SWC and KCWA are already suffering and will continue to suffer 21 irreparable harm because of the Refined Alternative 2b Project’s approval and ITP’s issuance. 22 16. SWC, by and through its members, and KCWA have a direct and beneficial 23 interest in DWR and CDFW’s legally adequate compliance with CEQA, CESA, and all other 24 applicable laws in approving and implementing the Refined Alternative 2b Project and the ITP. 25 SWC and KCWA submitted multiple objections on CEQA, CESA, and other grounds to DWR 26 before March 27, 2020, when DWR approved the Refined Alternative 2b Project. Further, SWC 27 submitted objections (on its and its members’ behalf) on CEQA, CESA, and other grounds to 28 CDFW’s proposed reliance on the FEIR as a responsible agency and proposed approval of the -7VERIFIED PETITION FOR WRIT OF MANDATE 1 ITP before March 27, 2020, when, according to CDFW’s Notice of Determination, CDFW made 2 its CEQA and CESA findings and approved the ITP. 3 17. 4 directly and substantially affect SWC, by and through its members, including KCWA. SWC, 5 KCWA and SWC’s other members rely upon water exported from the Delta. Accordingly, any 6 action, including the Refined Alternative 2b Project and the ITP, that impacts water supply 7 reliability is one in which SWC, KCWA and SWC’s other members have a beneficial interest. 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 The adverse environmental impacts of DWR and CDFW’s illegal actions will 18. Through this action, SWC and KCWA seek to promote and enforce CEQA and CESA’s purposes, which are defeated by the challenged approvals. 10 19. CEQA’s purposes include full disclosure of environmental impacts, informed 11 public participation, and informed decision-making. Here, DWR and CDFW’s approvals were 12 made without complete and accurate information, in violation of CEQA. Ascertaining the true 13 facts about the environmental impacts of projects, disclosing those true facts to decision-makers 14 and the public, and providing a fair opportunity for the public to participate in that evaluation 15 process are purposes that are within the zone of interests that CEQA was intended to protect. 16 20. The zone of interests that CESA was intended to protect includes ensuring that the 17 impacts of taking of endangered species and threatened species are minimized and fully mitigated 18 in a manner that is (1) proportional to the impact of the taking of the species and (2) possible to 19 be implemented utilizing methods of mitigation that maintain the applicant’s objectives to the 20 greatest extent possible. KCWA and SWC’s other members receive water from the SWP. As a 21 result, SWC, KCWA and SWC’s other members have invested significant resources in 22 developing Delta science and achieving collaborative management of the SWP. The ITP directly 23 and adversely affects the investment of those resources and impairs overall management of the 24 SWP. 25 21. DWR has a mandatory and public duty to comply with CEQA and all other 26 applicable laws when certifying the FEIR and approving and implementing the Refined 27 Alternative 2b Project. CDFW has a mandatory and public duty to comply with CEQA, CESA 28 and all other applicable laws when relying on the FEIR as a responsible agency and issuing the -8VERIFIED PETITION FOR WRIT OF MANDATE 1 ITP. The issues in this action under CEQA and CESA are issues of public right, and SWC and 2 KCWA bring this action in the public interest to enforce DWR and CDFW’s public duties. 3 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 4 EXHAUSTION OF ADMINISTRATIVE REMEDIES AND NOTICES 22. SWC and KCWA have performed or are excused from performing any and all 5 conditions precedent to filing this action. SWC and KCWA fully exhausted all administrative 6 remedies to the extent feasible by objecting to DWR and CDFW in writing during and after the 7 public comment period provided by CEQA. SWC and KCWA also requested that DWR and 8 CDFW comply with CEQA and CESA. SWC, KCWA, and/or other agencies, organizations, and 9 individuals raised each of the legal deficiencies asserted in this Petition in writing prior to the 10 approval of the Refined Alternative 2b Project, the certification of the FEIR and issuance of the 11 ITP. Furthermore, the extensive new information that was not publicly disclosed and which 12 formed the basis of the FEIR, and the ITP which was never made public prior to its approval, 13 deprived the public of the ability to exhaust their administrative remedies. Accordingly, SWC 14 and KCWA are alternatively excused from any obligation to exhaust their administrative 15 remedies. (E.g., Pub. Resources Code § 21177 [any obligation to exhaust administrative 16 remedies under CEQA “does not apply to any alleged grounds … for which there was not a 17 public hearing or other opportunity for members of the public to raise those objections orally or in 18 writing before the approval of the project…”].) 19 23. SWC and KCWA have complied with Public Resources Code section 21167.5 by 20 providing DWR and CDFW notice of SWC’s intent to commence this action. The notices are 21 attached to this Petition as Exhibits “A” and “B.” 22 24. In accordance with Public Resources Code section 21167.7, SWC and KCWA 23 concurrently provided a copy of this Petition to the California Attorney General. The notice is 24 attached to this Petition as Exhibit “C.” 25 26 25. Service of this Petition on DWR and CDFW satisfy any applicable service requirements under Public Resources Code section 21167.6.5, subdivisions (a), (b), and (c). 27 28 -9VERIFIED PETITION FOR WRIT OF MANDATE 1 26. In accordance with Public Resources Code section 21167.6, subdivision (a), SWC 2 and KCWA concurrently filed an election to prepare the administrative record. The notice is 3 attached to this Petition as Exhibit “D.” 4 5 27. This lawsuit has been commenced within the time limits imposed for this action 6 under Code of Civil Procedure sections 312 and 343, and Public Resources Code sections 21167, 7 21168, and 21168.5. 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 TIMELINESS AND REQUEST FOR CEQA HEARING 28. Further, SWC and KCWA request a hearing on this Petition pursuant to Public Resources Code section 21167.4. 10 FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 11 Historic regulation of the State Water Project 12 29. The SWP includes water, power, and conveyance systems, which convey an 13 annual average of 2.9 million acre-feet of water. “The SWP facilities in the Delta provide for 14 delivery of water supply to areas within and immediately adjacent to the Delta, and to regions of 15 the Delta.” (FEIR, 3-3.) According to the FEIR, the “main SWP Delta features” include the 16 Harvey O. Banks Pumping Plant and John E. Skinner Delta Fish Protective Facility. (FEIR, 3-3.) 17 The SWP is operated to provide flood control and water for agricultural, municipal, industrial, 18 and recreational purposes. 19 20 21 30. The Central Valley Project (“CVP”), which is operated by the United States Bureau of Reclamation (“Reclamation”), also diverts water from the Delta and distributes it. 31. Given the Delta’s diverse ecosystem and the ongoing competing demands for the 22 scarce water resources available, the SWP and the CVP deliver water to a vast population and 23 hundreds of thousands of irrigated agricultural lands under the regulation and coordination of 24 many federal and state agencies to ensure compliance with all applicable laws. 25 32. To address the relationship between the SWP and the CVP, DWR and 26 Reclamation entered into an “Agreement Between the United States of America and the 27 Department of Water Resources of the State of California for Coordinated Operation of the 28 Central Valley Project and the State Water Project” (often referred to as the “Coordinated - 10 VERIFIED PETITION FOR WRIT OF MANDATE 1 Operation Agreement” or “COA”). COA governs how the SWP and the CVP share water and 2 responsibility to meet water quality and outflow requirements. COA is based on negotiated 3 principles of equitable sharing, arising from the requirement that operations be coordinated and, 4 as a matter of practical necessity, for two large projects to be able to operate together successfully 5 in a complex tidal estuary. 6 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 7 Special-status species within the Delta waters 33. The task of securing and safely managing California’s water supply is even more 8 critical due to the presence of several species in the Delta that are protected under state and 9 federal law. With respect to state law, the California Fish and Game Commission 10 (“Commission”) is charged with the duty to list endangered and threatened species under CESA. 11 Relevant to this Petition, the Commission has listed four species occurring in the Delta: the Delta 12 smelt (endangered), the Longfin smelt (threatened), the winter-run Chinook salmon (endangered), 13 and the spring-run Chinook salmon (threatened) (hereafter, “Covered Species”). (14 Cal. Code 14 Regs. § 670.5.) 15 34. Once the Commission lists a species under CESA, the duties then largely shift to 16 Respondent CDFW to administer CESA’s requirements as applied to those species. One 17 important duty carried out by CDFW is to issue permits that allow for the “take” of a listed 18 species under CESA. 19 35. To fully understand species regulation in the Delta, it is also necessary to consider 20 the federal Endangered Species Act (“federal ESA”). Many species are afforded protection under 21 both the federal ESA and CESA, which is referred to as “dual listing.” Relevant here, three of the 22 four species protected under CESA—the Delta smelt, the winter-run Chinook salmon, and the 23 spring-run Chinook salmon—are also listed as endangered or threatened under the federal ESA. 24 Additionally, the Central Valley steelhead, Killer Whale, and Green Sturgeon are federally listed 25 but not listed under CESA. For species that are federally listed, the United States Fish and 26 Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) also have 27 oversight. To summarize, the listing status of Delta species is as follows: 28 - 11 VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 4 Dual Listed Federal ESA listed only CESA listed only Delta smelt Central Valley steelhead Longfin smelt winter-run Chinook salmon Green Sturgeon spring-run Chinook salmon Southern Resident Killer Whale 5 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 6 36. Pursuant to the federal ESA, the USFWS and NMFS have the responsibility to 7 conduct their own consultation in evaluating the long-term operations3 of the CVP and SWP 8 including take of federally listed species or impact to critical habitat that may occur incidental to 9 such operations. Ultimately, USFWS and NMFS issue biological opinions under the federal ESA 10 that evaluate and include measures to ensure the protection of these species and their critical 11 habitat. Under Section 7 of the federal ESA, any contemplated take by a project is authorized by 12 an “incidental take statement” that is included as part of the biological opinion. 13 37. Given the possibility that a species may be dual-listed, CESA contemplates that 14 there may often be regulatory overlap with the federal ESA with respect to the measures for 15 protecting certain species, like three of the species here—the Delta smelt, the winter-run Chinook 16 salmon, and the spring-run Chinook salmon.) Specifically, CDFW may authorize the taking of a 17 listed species under CESA if it determines that the incidental take statement of USFWS and/or 18 NMFS “is consistent with” the requirements of CESA. (Fish and Game Code § 2080.1, sub. (c).) 19 Commonly referred to as a “Consistency Determination,” this approach encourages collaboration 20 amongst the various wildlife agencies, both federal and state, to avoid unnecessary conflicts or 21 inconsistent treatment of a project. When CDFW makes a Consistency Determination, a separate 22 incidental take permit under CESA is not required. 23 38. In operating the SWP, DWR ensures compliance with the federal ESA and CESA 24 by applying for permits to cover any take that SWP operations may cause. Until the ITP at issue 25 in this Petition, CDFW had always addressed the three dual-listed species through Consistency 26 Determinations, and thus had never previously issued a take permit for Delta smelt, winter-run 27 3 28 The federal ESA is different than CESA in that the federal ESA authorizes mitigation for adverse modification of habitat. CESA does not. - 12 VERIFIED PETITION FOR WRIT OF MANDATE LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 1 Chinook salmon or spring-run Chinook salmon. For example, in 2008 and 2009, the USFWS and 2 NMFS issued biological opinions with incidental take statements that addressed Delta smelt, 3 winter-run and spring-run Chinook salmon (among other species). To provide CESA 4 authorization, CDFW adopted a Consistency Determination for those dual-listed species, with 5 only the state-listed Longfin smelt requiring a separate incidental take permit under CESA. Thus, 6 between 2009 and February 2020, the 2008/2009 federal BiOps, an Incidental Take Permit issued 7 by CDFW for Longfin smelt, and a Consistency Determination made by CDFW for all dual-listed 8 species (winter-run Chinook Salmon, spring-run Chinook Salmon and Delta smelt) governed 9 SWP operations. 10 39. After reinitiation of consultation with USFWS and NMFS under federal ESA, 11 DWR and Reclamation jointly submitted the Biological Assessment in 2019. On October 22, 12 2019 the USFWS and NMFS issued their Biological Opinions (“BiOps”) for long term operations 13 with incidental take statements for Delta smelt, winter-run Chinook salmon, and spring-run 14 Chinook salmon (as well as green sturgeon and steelhead). 15 Draft Environmental Impact Report for State Water Project Long Term Operations 16 Project 17 40. One month later, in November 2019, DWR released the DEIR for public review. 18 The DEIR analyzed impacts from the SWP LTO Project. Operation of the SWP LTO Project was 19 similar to project operations identified in the final version of the 2019 BA, which was transmitted 20 on January 31, 2019. The public comment period for the DEIR ran from November 21, 2019 to 21 January 6, 2020. 22 41. In a section titled “Summary of Proposed Project,” the DEIR states that the SWP 23 LTO Project would “consist of multiple elements that are expected to characterize future 24 operations of SWP facilities, would modify ongoing programs being implemented as part of SWP 25 operations, would improve specific activities to enhance protection of special-status fish species, 26 and would support ongoing studies and research on these special-status species to improve the 27 basis of knowledge and management of these species. Implementation of these elements is 28 intended to continue operation of the SWP and deliver up to the full contracted water amounts - 13 VERIFIED PETITION FOR WRIT OF MANDATE 1 while minimizing and fully mitigating the take of listed species, in compliance with CESA 2 requirements.” (DEIR, 1-5.) LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 3 42. The SWP LTO Project’s objective, as identified in the DEIR, is “to continue the 4 long-term operation of the SWP consistent with applicable laws, contractual obligations, and 5 agreements. DWR proposes to store, divert, and convey water in accordance with DWR’s 6 existing water rights to deliver water pursuant to water contracts and agreements up to full 7 contract quantities. DWR seeks to optimize water supply and improve operational flexibility 8 while protecting fish and wildlife based on the best available scientific information.” (DEIR, 3- 9 1.) 10 43. The DEIR analyzed the SWP LTO Project’s indirect effects on hydrology as well 11 as direct effects on surface water quality, aquatic biological resources, tribal cultural resources, 12 cumulative impacts and growth-inducing impacts, and concluded that the SWP LTO Project 13 would not result in any significant impacts. (E.g., DEIR, 4-289; 4-292; 4-308; 4-320; 4-326.) 14 44. Despite the fact that the SWP LTO Project would have no significant impacts on 15 the environment, the DEIR analyzed a No Project Alternative, as well as “Alternative 2a- 16 Proposed Project with Additional Spring Delta Outflow”; “Alternative 2B [sic]-Proposed Project 17 with Dedicated Water for Delta Outflow from SWP”; “Alternative 3-Installation of Physical and 18 non-physical Barriers”; and “Alternative 4-alternative Summer-Fall Action” (DEIR, 5-1 through 19 5-134.) The DEIR stated that the impacts of the “proposed project [the SWP LTO Project] and 20 Alternative 2b are essentially equivalent” with neither having any significant impacts; thus, the 21 DEIR considered both “the proposed project [the SWP LTO Project] and Alternative 2b . . . to be 22 the environmentally superior alternatives.” (DEIR 5-135.) 23 45. Notwithstanding the fact that one of the DEIR’s goals is “to deliver water pursuant 24 to water contracts and agreements up to full contract quantities” (DEIR, 3-1), DWR issued a press 25 release concurrently with the DEIR’s circulation that contradicts this stated goal. In conflict with 26 the DEIR, the press release states that DWR “does not seek to increase SWP exports.” 27 28 - 14 VERIFIED PETITION FOR WRIT OF MANDATE 1 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 2 DWR’s CESA Application 46. In December 2019—one month after releasing the DEIR—DWR submitted its 3 application for an incidental take permit under CESA (“CESA Application”) to CDFW. Under 4 CEQA, a project’s objectives are critically important because any mitigation measures imposed to 5 protect listed species must maintain the project objectives “to the greatest extent possible.” Here, 6 DWR’s CESA Application describes the objectives of the project proposed in the application as 7 continuing “the long-term operation of the SWP consistent with applicable laws, contractual 8 obligations, and agreements. DWR proposed to store, divert, and convey water in accordance 9 with DWR’s existing water rights to deliver water pursuant to water contracts and agreements up 10 to full contract quantities. DWR’s objectives are to optimize water supply and improve 11 operational flexibility while protecting fish and wildlife based on the best available scientific 12 information.” (CESA Application, 3-1.) 13 47. The proposed project in DWR’s CESA Application departed from the project 14 proposed in the BA and the DEIR in meaningful ways. For example, the CESA Application for 15 the first time included additional outflow above what was included in the BiOps and DEIR. One 16 new measure requires 100,000 acre feet of summer outflow from the SWP, even though the SWP 17 has not been shown to cause any take or impacts in the summer. Another requires April-May 18 export cuts in below-normal, above normal and wet years, with reductions in exports up to 19 approximately 405,000 acre-feet in some years. (FEIR, Table 5.3-1.) These additional measures 20 to reduce SWP water deliveries foreshadowed even further restrictive measures that CDFW 21 would demand later in the process. 22 48. At some point between drafting the DEIR and submitting the CESA Application, 23 the state abruptly backed away from the project proposed in the DEIR—the SWP LTO Project— 24 and switched to a new goal of seeking no increases in SWP exports as compared to the 2008-2009 25 biological opinions. 26 27 28 - 15 VERIFIED PETITION FOR WRIT OF MANDATE 1 DWR’s approval of Refined Alternative 2b Project and certification of the Final 2 Environmental Impact Report under CEQA 3 49. 4 SWC’s January 6, 2020 comment letter and KCWA’s January 13, 2020, comment letter. In these 5 comment letters, SWC and KCWA noted that the project proposed in the CESA Application 6 differed materially from the SWP LTO Project analyzed in the DEIR. 7 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 DWR received over 60 letters from the public regarding the DEIR, including 50. The new “no increased exports” goal resulted in the creation of an entirely new 8 project, which DWR identified as “Refined Alternative 2b” in the FEIR. The FEIR states that 9 under the Refined Alternative 2b Project, the “total volume of exports would generally be 10 expected to remain the same.” (FEIR, 5-349.) 11 51. The Refined Alternative 2b Project is materially different from the SWP LTO 12 Project and Alternative 2B4 identified in the DEIR, as well as from the project identified in 13 DWR’s CESA Application. The Refined Alternative 2b is materially different than the SWP 14 LTO Project analyzed in the DEIR, as Alternative 2b added operational criteria that had not been 15 disclosed or evaluated previously, including new winter-run Chinook salmon and spring-run 16 Chinook salmon daily loss triggers for export reductions; new winter-run Chinook salmon export 17 reduction triggers in November and December; and in the summer-fall period, a dry-year Suisun 18 Marsh Salinity Control Gate operation. 19 52. The FEIR ignores the fact that the Refined Alternative 2b Project is materially 20 different from anything analyzed in the DEIR and instead minimizes those differences by 21 claiming that the FEIR merely “refines” the information that was in the DEIR. But the reality is 22 that the Refined Alternative 2b Project is a new project that was not analyzed in the DEIR and 23 was not made available for public review and comment. Indeed, pages 5-39 through 5-285 of 24 FEIR appear to be entirely new information about the new Refined Alternative 2b Project. The 25 FEIR also includes two brand new technical appendices (J and K); substantial revisions to four 26 other technical appendices (C, E, F, and H); and provides a dozen new technical reports and 27 28 4 The DEIR uses the terms “2B” and “2b” interchangeably. - 16 VERIFIED PETITION FOR WRIT OF MANDATE 1 modeling outcomes—all of which constitutes significant new information that was never 2 circulated for public review. LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 3 53. Despite the addition of new appendices and hundreds of pages in the FEIR, the 4 FEIR does not adequately analyze and mitigate for the Refined Alternative 2b Project’s 5 potentially significant impacts. The FEIR for example, did not fully model the Refined 6 Alternative 2b Project. In fact, the FEIR failed to model a myriad of scenarios that could lead to 7 reasonably foreseeable significant impacts on the environment, including, but not limited to, 8 impacts related to use of Oroville facilities to store water that CDFW is carrying over to a 9 subsequent year and daily salvage limits for winter-run and spring-run Chinook salmon. The 10 FEIR failed to analyze potentially significant impacts related to flow actions; daily salvage 11 operation triggers for winter-run and sprint-run Chinook salmon; salvage-based operational limits 12 for Delta smelt; the combined effect of multiple layers of OMR limits; and CDFW’s broad 13 discretion to reduce pumping at any time within a range of -1250 to -5000 OMR. 14 54. In addition to the significant new information regarding the Refined Alternative 2b 15 Project, the FEIR includes other significant new information and changes to the SWP LTO 16 Project analyzed in the DEIR. The FEIR modifies the project’s objective by adding a new project 17 purpose that was not included in the DEIR’s SWP LTO Project objectives, as follows: “The 18 underlying purpose of the Proposed Project is to obtain incidental take authorization from 19 the . . . [DFW]” in order to continue operating the SWP. (FEIR, 3-1.) The FEIR thus changes 20 the primary objective of the project from continuing long term operation of the SWP to obtaining 21 a take permit. This is significant new information that was never circulated for public comment. 22 55. The FEIR also includes significant new information regarding the environmentally 23 superior alternative. As discussed above, the DEIR concluded that the SWP LTO Project and 24 Alternative 2B (also referred to in the DEIR as 2b) were both the environmentally superior 25 alternatives. In contrast, the FEIR concludes that the Refined Alternative 2b Project—which the 26 FEIR states would result in no increase in Delta exports—is the environmentally superior 27 alternative. (FEIR, 5-349-350.) The FEIR continues that the “major environmental benefits 28 associated with” the Refined Alternative 2b Project “include the curtailment of exports by up to - 17 VERIFIED PETITION FOR WRIT OF MANDATE 1 150 thousand acre feet (TAF) in Above Normal, Below Normal, and Dry water years to maintain 2 the current SWP spring outflow contribution and provide an adaptively-managed 100 TAF bock 3 of Delta outflow in June through November of Wet and Above Normal water years . . . .” (FEIR 4 3-349-350.) LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 5 56. According to DWR’s Notice of Determination, which OPR posted on March 30, 6 2020, DWR approved the Refined Alternative 2b Project on March 27, 2020. According to 7 DWR’s Notice of Determination: (1) DWR concluded that the Refined Alternative 2b Project 8 would not have any significant impacts on the environment; (2) DWR did not adopt a mitigation, 9 monitoring and reporting program; (3) DWR did not make mitigation a condition of approval; 10 11 and (4) DWR did adopt CEQA findings. 57. While DWR was preparing the FEIR in February 2020, Reclamation was taking 12 action on the federal BiOps. On February 19, 2020, Reclamation signed the Record of Decision, 13 thereby formally adopting the BiOps. 14 15 CDFW’s issuance of the CESA Incidental Take Permit and CEQA action 58. CDFW departed from its prior approach of adopting Consistency Determinations 16 for the three dual listed species by issuing the ITP in March 2020 for all four of the Covered 17 Species over which it had jurisdiction—Delta smelt, Longfin smelt, winter-run Chinook salmon 18 and spring-run Chinook salmon. On April 1, 2020, OPR posted CDFW’s Notice of 19 Determination. According to CDFW’s Notice of Determination, CDFW approved the Refined 20 Alternative 2b Project and ITP on March 27, 2020, the very same date that that DWR approved 21 the Refined Alternative 2b Project and certified the FEIR. CDFW’s Notice of Determination also 22 states that: (1) CDFW concluded that the ITP would not have any significant impacts on the 23 environment; (2) CDFW imposed “additional” mitigation measures as a condition of approval; 24 (3) CDFW approved a mitigation monitoring and reporting program; and (4) CDFW made CEQA 25 findings as a responsible agency. In its CEQA findings—and despite CEQA’s requirement that 26 “mitigation” have a nexus to an environmental impact and be roughly proportionate to that impact 27 (CEQA Guidelines § 15126.4, subd. (a)(4))—CDFW did not identify any significant 28 environmental impacts that the mitigation measures were intended to minimize. Instead, CDFW - 18 VERIFIED PETITION FOR WRIT OF MANDATE 1 asserted that the CEQA findings were not required and were only informational. However, the 2 CEQA findings are misleading and not supported by substantial evidence in the record. 3 As part of the ITP, CDFW fundamentally changed SWP operations and imposed a 4 number of additional restrictions on the SWP that had not been included anywhere previously— 5 not in the BA, not in the DEIR or FEIR, not in the CESA Application and not even in the federal 6 BiOps. This rogue alteration of the SWP long term operations and invention of new mitigation 7 can only be described as an agency exerting its will to achieve an outcome regardless of what the 8 law or science dictates. 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 59. 10 60. Specifically, the ITP issued by DFW and accepted by DWR violates CESA by including mitigation and other measures that, among other things: • 11 12 are unnecessary, disproportionate and/or infeasible to address potential environmental and species impacts associated with operation of the SWP; 13 • are not supported substantial evidence and/or the best available science; 14 • are premised on an incorrect definition of “take” of threatened or endangered 15 species; • 16 17 permit application; and • 18 19 are inconsistent with the project objectives described in the incidental take 61. include mitigation for take or other actions by third parties. CDFW arbitrarily and capriciously abused its discretion by issuing the ITP with 20 unilateral modifications to the project itself, and with the imposition of additional mitigation 21 measures that are not grounded in CESA. Abandoning the prior project descriptions, the ITP 22 refashions the project and includes mitigation measures that are purportedly designed to address 23 impacts to the Covered Species. Notably, the project differs from the proposed project evaluated 24 in both the DEIR and FEIR, and the ITP imposes additional mitigation measures that were not 25 analyzed or disclosed in the CEQA review. Such additional mitigation measures include, but are 26 not limited to, unilaterally imposing CDFW’s own approach to the Delta smelt salvage 27 calculation limit and corresponding OMR restrictions (ITP at 85-86) and requiring the 28 appointment of a Designated Biologist who possesses extraordinary broad powers over the SWP - 19 VERIFIED PETITION FOR WRIT OF MANDATE 1 operations, and who alone can immediately stop any operational activity that does not comply 2 with the ITP (ITP at 52-53). LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 3 62. As a practical matter, CDFW’s changes to the project and imposition of unjustified 4 additional mitigation measures present serious problems. To achieve compliance and enjoy 5 protection under the federal ESA and CESA, DWR is required to comply with the conditions in 6 both the federal BiOps and the ITP. Yet there are immediately apparent inconsistencies between 7 the federal and state authorizations that cannot be reconciled. For example, the ITP prohibits 8 DWR from coordinating CVP and SWP operations without regard to DWR’s obligations under 9 the federal permits or the COA. 10 63. Nonetheless, CDFW stated in no uncertain terms that if there were any 11 inconsistencies between the federal BiOps and the ITP, the ITP controls. (ITP, Condition of 12 Approval #3 [“For purposes of this ITP, where the terms and conditions in the federal 13 authorization are less protective of the Covered Species or otherwise conflict with this ITP, the 14 conditions of approval set forth in this ITP shall control.]”.) 15 64. Adding to the errors committed, CDFW also concurrently issued CESA 16 “Findings” with the ITP. In its CESA Findings, CDFW states that with the additional mitigation 17 imposed in the ITP, the impacts to the Covered Species are fully mitigated. Notably, CDFW also 18 issued CEQA Findings. In its CEQA findings, CDFW concurs with DWR’s FEIR (which found 19 no significant impacts), but CDFW also discusses significant additional mitigation imposed in the 20 ITP that it asserts is “to ensure that any potential Project-related impact on the species and its 21 habitat arising from the ITP Covered Activities is avoided or reduced below a level of 22 significance.” (CESA Findings at 9.) In short, CDFW repeatedly states that, but for inclusion of 23 the ITP’s new mitigation measures, a wide array of impacts would have been significant. This is 24 patently inconsistent with the FEIR. 25 26 27 28 - 20 VERIFIED PETITION FOR WRIT OF MANDATE 1 FIRST CAUSE OF ACTION 2 (Petition for Writ of Mandate Pursuant to Code Civ. Proc. §§ 1085 and 1094.5–Violation of 3 CEQA) 4 (Against DWR and DOES 1-100) 5 6 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 7 65. SWC and KCWA incorporate herein by reference each previous paragraph of this Petition as though set forth here in full. 66. “[T]he legislature intended [CEQA] to be interpreted in such manner as to afford 8 the fullest possible protection to the environment within the reasonable scope of the statutory 9 language.” (City of San Diego v. Board of Trustees of the California State University (2015) 10 61 Cal.4th 945, 963, internal punctuation and citation omitted.) When complying with CEQA, a 11 lead agency must proceed in the manner required by law, and its determinations must be 12 supported by substantial evidence. (Pub. Resources Code § 21168.5.) 13 67. The defects in the FEIR are pervasive and fundamental, so much so that they make 14 informed decision-making and informed public participation impossible. DWR’s certification of 15 the FEIR thus constitute a procedural violation of CEQA and the FEIR is reviewed de novo in 16 this court. (See, Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512, 516.) The FEIR’s 17 defects and CEQA violations include, but are not limited to the following: 18 19 Inconsistent and shifting project description 68. A stable and consistent project description is essential to achieving CEQA’s 20 mandate. “An accurate, stable and finite project description is the sine qua non of an informative 21 and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 22 193.) DWR violated this fundamental mandate because the project description was not stable 23 throughout the administrative process and because the project that DWR ultimately approved was 24 not adequately analyzed in the FEIR. 25 69. The project identified and analyzed in the DEIR is the SWP LTO Project. 26 However, the project that DWR ultimately approved, the Refined Alternative 2b Project, is 27 materially different than the SWP LTO Project analyzed in the DEIR, as set forth above. The 28 Refined Alternative 2b Project is also materially different than any of the alternatives identified in - 21 VERIFIED PETITION FOR WRIT OF MANDATE 1 the DEIR. Similarly, the project described in DWR’s CESA Application is materially different 2 than both the SWP LTO Project analyzed in the DEIR and the Refined Alternative 2b Project that 3 DWR ultimately approved. This shifting and unstable project description precluded public 4 review and informed decision-making, and prevented meaningful analysis of the environmental 5 impacts of the Refined Alternative 2b Project. 6 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 7 Inconsistent and shifting project objectives 70. The FEIR also modifies the project’s objectives by adding a new objective that 8 was not included in the DEIR: “The underlying purpose of the Proposed Project is to obtain 9 incidental take authorization from the . . . [CDFW]” in order to continue the SWP LTO. (FEIR, 10 3-1.) The FEIR thus changes the primary objective of the project from continuing long term 11 operation of the SWP to obtaining a take permit. But a regulatory permit is what allows an 12 agency to implement a proposed project, the permit is not the project itself. This switch 13 constitutes a prejudicial abuse of discretion because scientific data does not support that switch, 14 and because it evidences that DWR’s primary purpose was improperly focused on obtaining one 15 particular regulatory approval rather than on developing operational parameters for the SWP’s 16 long term operations. 17 71. Again, DWR’s use of inconsistent project descriptions in the DEIR and FEIR and 18 changes in project objectives prevented informed public comment and informed decision-making 19 and precluded the FEIR from functioning as an informational document as CEQA requires. 20 DWR’s use of inconsistent project descriptions and switch in project objectives is a procedural 21 violation of CEQA. 22 Refined Alternative 2b Project is inconsistent with the project objectives identified in the 23 Draft Environmental Impact Report 24 72. Even as to those objectives that were included in the DEIR, DWR fails to explain 25 how the Refined Alternative 2b Project is consistent. Specifically, the DEIR states that one of the 26 SWP LTO Project’s objectives is to “convey water in accordance with DWR’s existing water 27 rights to deliver water pursuant to water contracts and agreements up to full contract quantities.” 28 (DEIR, 3-1, emphasis added.) The Refined Alternative 2b Project that DWR approved is - 22 VERIFIED PETITION FOR WRIT OF MANDATE 1 inconsistent with this stated objective because it is premised on no increases over existing 2 baseline exports. 3 73. 4 the existing SWP baseline could be exported without resulting in any significant impacts to the 5 Delta and the listed species. However, DWR disregarded this evidence and instead approved the 6 Refined Alternative 2b Project, which DWR touts will not result in any export increases from the 7 Delta above existing baseline. (FEIR, 5-349-350.) The Refined Alternative 2b Project is thus 8 inconsistent with the objective identified in the DEIR to supply up to full contract quantities. 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 Evidence included in the DEIR demonstrates that additional water quantities above 74. DWR adopted the Refined Alternative 2b Project even though it is inconsistent 10 with the DEIR’s stated project objectives. This violates CEQA, precludes informed public 11 comment and informed decision-making, and constitutes a procedural violation of CEQA’s 12 mandate that an environmental impact report must be an informational document. 13 14 Failure to exercise independent judgment 75. In addition to the defects resulting from the shifting and inconsistent project 15 description and objectives, SWC and KCWA are informed and believe that neither CDFW nor 16 DWR had any intention of allowing any increase in export quantities notwithstanding the DEIR’s 17 stated objective. 18 76. Specifically, DWR embraced an abrupt switch from a substantial evidence and 19 science-based analysis to a “no increased exports” goal as evidenced by DWR’s press release and 20 approval of the Refined Alternative 2b Project. Because this materially different project was only 21 developed after the DEIR was circulated for public review, the environmental impacts of the 22 Refined Alternative 2b Project were never made available for public review and, worse, are 23 insufficiently analyzed in the FEIR in a manner unsupported by substantial evidence. 24 77. Further, this switch demonstrates that DWR did not exercise its independent 25 judgment in approving the Refined Alternative 2b Project and in certifying the FEIR. Instead, 26 DWR’s stated intent (expressed after DWR released the DEIR) not to allow any increased exports 27 demonstrates that it pre-determined and pre-judged the outcome of the process, in violation of 28 CEQA’s procedural mandate. - 23 VERIFIED PETITION FOR WRIT OF MANDATE 1 Failure to analyze the Refined Alternative 2b Project’s significant impacts on the 2 environment 3 DWR failed to comply with CEQA’s requirement that the lead agency must 4 analyze a project’s impacts. The Refined Alternative 2b Project first appeared in the FEIR, so the 5 DEIR necessarily did not analyze the Refined Alternative 2b Project’s potentially significant 6 impacts. Further, the “analysis” in the FEIR regarding the Refined Alternative 2b Project’s 7 potentially significant impacts is wholly inadequate. 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 78. 79. For instance, the FEIR fails as an informational document with regard to the analysis of impacts that are more fundamental to the purpose of the project—the ability to 10 continue long term operation of the SWP and to continue providing reliable water supply to 11 millions of Californians. DWR did not fully model the Refined Alternative 2b Project. In fact, 12 the FEIR failed to model a myriad of scenarios that could lead to significant impacts on the 13 environment, including impacts related to use of Oroville facilities to store water that CDFW is 14 carrying over to a subsequent year; and daily salvage limits for winter run and spring-run 15 Chinook salmon. The Refined Alternative 2b Project could also have significant impacts to water 16 supply and the FEIR fails to analyze those impacts. 17 80. DWR’s failure to analyze potentially significant impacts from the Refined 18 Alternative 2b Project precluded informed decision-making and informed public comment and 19 thus violates CEQA’s procedural requirements. 20 21 Failure to recirculate Draft Environmental Impact Report 81. CEQA Guidelines section 15088.5 requires a lead agency to recirculate an 22 environmental impact report when, as here, “significant new information” is added to the FEIR 23 after the DEIR is released to the public but before the FEIR is certified. Here, the FEIR 24 effectively presents a wholly new project that was not included in the DEIR—the Refined 25 Alternative 2b Project—based on a new fundamental objective to obtain a CESA permit and a 26 new pre-determined outcome of avoiding any increases in exports. 27 28 82. The FEIR purports to simply “refine” the DEIR’s Alternative 2B (also referred to as 2b in the DEIR). But the reality is that the Refined Alternative 2b Project is a new project that - 24 VERIFIED PETITION FOR WRIT OF MANDATE LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 1 was not in the DEIR and not made available for public comment. Pages 5-39 through 5-285 of 2 the FEIR appear to be entirely new information about this new project. The FEIR also includes 3 two brand new technical appendices (J and K); substantial revisions to four other technical 4 appendices (C, E, F, and H); and provides a dozen new technical reports/modeling outcomes that 5 were never circulated for public review. Thus, even if this expansive, new information did fully 6 analyze the Refined Alternative 2b Project (and it does not), all of that new material constitutes 7 significant new information triggering the requirement to recirculate the DEIR under CEQA. 8 DWR was required to recirculate the DEIR to allow the public to comment on this new project; 9 this is particularly true given that DWR ultimately approved that new project. 10 83. The FEIR also includes significant new information regarding the project 11 objectives, as set forth above. Specifically, the FEIR modifies the SWP LTO Project’s objective 12 by adding a new purpose as follows: “The underlying purpose of the Proposed Project is to obtain 13 incidental take authorization from the . . . [DFW]” in order to continue the SWP LTO. (FEIR, 3- 14 1.) The FEIR thus changes the primary objective of the Project from continuing the SWP LTO to 15 obtaining a regulatory take permit. This, too, is significant new information that was never 16 circulated for public comment. 17 84. DWR’s failure to recirculate the DEIR despite this significant new information 18 precluded informed public comment and informed decision-making. This is a procedural 19 violation of CEQA’s requirements. 20 21 Inadequate response to comments 85. CEQA Guidelines section 15088 requires a lead agency to make a good faith, 22 reasoned analysis in response to comments provided during the public comment period. DWR’s 23 responses to comments, however, are cursory, conclusory, and factually unsupported. 24 86. For example, SWC, KCWA and other public agencies commented that DWR was 25 not utilizing a consistent project description in the DEIR and the CESA Application. SWC, 26 KCWA and others commented that CEQA required DWR to utilized a consistent project 27 description and requested DWR to either approve the project identified in the DEIR (the SWP 28 LTO Project) or recirculate the DEIR to provide the public an opportunity to comment on the new - 25 VERIFIED PETITION FOR WRIT OF MANDATE 1 project that DWR proposed in the CESA Application. DWR glossed over the significant changes 2 in the project description by describing them as a mere “refinement” to the SWP LTO Project 3 identified in the DEIR. DWR provided similarly conclusory responses to numerous other 4 comments, and thus prejudicially abused its discretion by failing to respond to comments in good 5 faith and to support those responses with substantial evidence. 6 No substantial evidence to support certification of Final Environmental Impact Report or 7 approval of Refined Alternative 2b Project 8 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9 87. It is axiomatic under CEQA that an environmental impact report must contain substantial evidence to support its conclusions. (Code Civ. Proc. § 1094.5; Pub. Resources Code 10 § 21168.5) 11 88. As set forth herein, there is no substantial evidence to support DWR’s certification 12 of the FEIR or approval of the Refined Alternative 2b Project. The FEIR lacks a consistent 13 project description, is based on shifting project objectives, fails to include adequate analysis of 14 the Refined Alternative 2b Project, and includes significant new information requiring 15 recirculation. Although the FEIR cites to certain “expert opinion,” those opinions do not 16 constitute substantial evidence because they are speculative, erroneous, and factually 17 unsupported. (See CEQA Guidelines § 15384 [the opinion of “experts” only constitutes 18 substantial evidence where that opinion is not speculation, accurate, and supported by facts].) 19 Given these defects, the record simply does not contain substantial evidence to support DWR’s 20 certification of the FEIR or approval of the Refined Alternative 2b Project. 21 22 Inadequate CEQA findings 89. Under CEQA, substantial evidence must support a lead agency’s findings 23 regarding potentially significant impacts, and a “brief rationale” linking the substantial evidence 24 to the findings must be provided. (CEQA Guidelines § 15091.) 25 26 27 28 90. Although DWR’s CEQA findings have not been made readily available to the public, DWR’s Notice of Determination states that CEQA findings were made. 91. SWC and KCWA are informed and believe and on that basis allege that the findings are legally inadequate and/or unsupported by substantial evidence. - 26 VERIFIED PETITION FOR WRIT OF MANDATE 1 92. 2 requiring written CEQA findings, SWC and KCWA are informed and believe and on that basis 3 allege that the findings are misleading or contradictory in a manner that mislead the decision- 4 makers and public. 5 6 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 Further, and even if DWR did not identify any significant environmental impacts Prejudicial abuse of discretion 93. The inadequacies alleged above are prejudicial and require DWR’s approval of the 7 Refined Alternative 2b Project and certification of the FEIR to be revoked. DWR’s actions 8 constituted a prejudicial abuse of discretion because DWR failed to proceed in a manner required 9 by law. (Pub. Resources Code § 21168.5.) 10 SECOND CAUSE OF ACTION 11 (Petition for Writ of Mandate Pursuant to Code Civ. Proc. §§ 1085 and 1094.5–Violation of the 12 California Endangered Species Act) 13 (Against CDFW and DOES 1-100) 14 15 16 94. SWC and KCWA incorporate herein by reference each previous paragraph of this Petition as though set forth here in full. 95. All “persons,” including state agencies such as CDFW, are prohibited from taking 17 a threatened or endangered species unless authorized under an incidental take permit. (Fish & 18 Game Code § 2080, 2081; Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal. 19 App. 4th 969, 980-981.) In adopting CESA, the Legislature also intended that mitigation to 20 address particular impacts on a species “shall be roughly proportional in extent to the impact of 21 the authorized taking on the species,” “shall maintain the [project] applicant’s objectives to the 22 greatest extent possible,” and “shall be capable of successful implementation.” (Fish & Game 23 Code § 2081.) 24 96. The defects in the ITP are pervasive and fundamental. CDFW prejudicially 25 abused its discretion by (1) imposing conditions in the ITP that violate CESA; (2) issuing a 26 decision unsupported by the Director’s factual findings; and (3) making factual findings not 27 supported by the evidence. (Environmental Protection Information Center v. California Dept. of 28 - 27 VERIFIED PETITION FOR WRIT OF MANDATE 1 Forestry & Fire Protection (2008) 44 Cal. 4th 459, 478). The ITP’s defects and CDFW’s 2 violations of CESA include, but are not limited to the following: 3 Improper definition of take LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 4 97. Under the Fish & Game Code, “take” “means hunt, pursue, catch, or kill, or 5 attempt to hunt, pursue, catch, capture or kill.” (Fish & Game Code § 86.) Habitat is not within 6 the definition of “take.” (Environmental Council of Sacramento v. City of Sacramento, 142 Cal. 7 App. 4th 1018, 1040 (2006) [“We reject any insinuation that the definition of ‘take’ under Fish 8 and Game Code section 2081 subdivision (b)(2) encompasses habitat alone”]; 94 Ops Cal. Atty. 9 Gen. 605 [concluding “State law does not prohibit indirect harm to a state-listed endangered 10 11 species or threated species by way of habitat modification.”].) 98. CDFW attempts to characterize habitat modification as “impacts of the authorized 12 take” that must be fully mitigated under Fish & Game Code § 2081 and California Code of 13 Regulations title 14, section 783.4, subdivision (a)(2). For example, the ITP states at page 44: 14 “Impacts of the authorized taking also include adverse impacts to covered species related to 15 temporal losses, increased habitat fragmentation, reduction in habitat extent and quality, and 16 increased edge effects and the Project’s incremental contribution to cumulative impacts (indirect 17 effects).” 18 99. Similarly, in the CESA Findings, CDFW asserts that project-related disturbance of 19 covered species habitat are expected to result in incidental take of those species and that “adverse 20 changes to habitat characteristics that certain covered species rely on, is an appropriate and 21 necessary indicator of the extent of incidental take at issue.” (CESA Findings, 6-7.) 22 100. Relatedly, the ITP impermissibly uses habitat as a basis for imposing mitigation. 23 To stretch this even further, CDFW considers the potential enhancement of habitat for predators 24 as the rationale for imposing considerable restrictions on the SWP. (ITP at 44-49.) In its Effects 25 Analysis, CDFW discusses how mortality may be increased by biotic stressors (such as predators) 26 on Covered Species in the South Delta. (ITP Attachment 7, at 50, 61; ITP Attachment 8 at 19, 27 35.) Entrainment in the South Delta and subsequent mortality due to a less favorable habitat is 28 not take like mortality due to entrainment into SWP facilities, but CDFW appears to treat these as - 28 VERIFIED PETITION FOR WRIT OF MANDATE 1 equal for purposes of mitigation. In another transparent example, CDFW explains that Condition 2 of Approval 8.17, increasing outflow through reductions in spring exports at the SWP, 3 “improve[es] habitat for Delta and [L]ongfin smelt,” whereas “[r]eductions in outflow . . . could 4 restrict longfin smelt nursery habitat upstream." (ITP at 104.) Seemingly recognizing that this 5 exceeds its authority under CESA, CDFW describes this as a “proactive approach to entrainment 6 minimization.” (ITP at 104.) LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 7 101. A plain reading of CDFW’s ITP and the related CESA Findings reveals that 8 CDFW is improperly using habitat modification as a proxy for species mortality. This runs afoul 9 of CESA by impermissibly considering habitat modification itself to be a “taking.” 10 Permit conditions inconsistent with Project objectives 11 102. Under CESA, CDFW “shall maintain the applicant’s objectives to the greatest 12 extent possible” when selecting among mitigation measures. (Fish & Game Code § 2081, subd. 13 (b)(2).) 14 103. DWR explains in its CESA Application that “[t]he objective of the Proposed 15 Project is to continue the long-term operation of the SWP consistent with applicable laws, 16 contractual obligations, and agreements. DWR proposes to store, divert, and convey water in 17 accordance with DWR’s existing water rights to deliver water pursuant to water contracts and 18 agreements up to full contract quantities. DWR seeks to optimize water supply and improve 19 operational flexibility while protecting fish and wildlife based on the best available scientific 20 information.” (CESA Application, 3-1; see also DEIR, 3.1.1.) 21 104. CDFW makes a conclusory finding that required mitigation maintains DWR’s 22 objectives to the greatest extent possible but provides no analysis to support that statement. 23 (CESA Findings, 43.) The ITP does not even mention DWR’s objectives. Moreover, CDFW ran 24 afoul of the CESA mitigation standards because CDFW did not maintain DWR’s objectives “to 25 the fullest extent possible” when selecting among available mitigation measures. Conditions in 26 the ITP, including but not limited to, conditions requiring additional export flow restrictions not 27 tied to any anticipated incidental take results in the imposition of mitigation that does not 28 maintain DWR’s objective of optimizing water supply under its contracts. - 29 VERIFIED PETITION FOR WRIT OF MANDATE 1 2 105. CESA dictates that all measures required to minimize and mitigate the impacts of 3 an authorized taking “shall be roughly proportional in extent to the impact of the authorized 4 taking on the species.” (Fish & Game Code § 2081, subd. (b)(2).) 5 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 Disproportionate mitigation 106. CDFW improperly imposed minimization and mitigation measures that are vastly 6 disproportionate to the alleged impacts of the incidental take authorized under the ITP. For 7 example, DWR explained in its CESA Application that modeling and data showed the proposed 8 project, which does not even include several aspects of the mitigation proposed in the CESA 9 Application, is expected to result in impacts consistent with the impacts under existing conditions. 10 These conditions were already determined to be fully mitigated under the CDFW’s prior CESA 11 permits and Consistency Determinations (E.g. CESA Application, 4-4, 4-49 to 4-51, 4-69, 4-76 12 to 4-78). CDFW nonetheless imposed new minimization, mitigation and monitoring 13 requirements in the ITP well above and beyond the conditions in prior authorizations—these new 14 requirements are projected to cost approximately $170 million and require significant additional 15 SWP export restrictions. CDFW fails to tie this extensive mitigation to the SWP operation’s 16 alleged impacts on the Covered Species. Some mitigation is clearly not associated with any 17 taking impacts of the SWP operations, including but not limited to, ITP conditions requiring 18 additional export reductions in April and May that were born from restrictions imposed in the past 19 for the benefit of Central Valley steelhead. (FEIR, Part III at 5-6, 5-38.) The Central Valley 20 Steelhead is not a CESA listed species. 21 107. Compounding CDFW’s error in failing to explain how the ITP measures mitigate 22 for alleged impacts from SWP operations, it is evident that much of the mitigation is 23 impermissibly based on impacts caused by other water users. For example, the ITP also requires 24 DWR to provide $20 million for a winter-run and spring-run Chinook salmon rearing habitat to 25 address any increased impacts from the 2019 NMFS BiOps. (CESA Findings, 51, 57.) CDFW 26 explains that “[r]estoring juvenile rearing habitat is intended to increase habitat diversity and 27 complexity, which can lead to population resiliency during times of increased temperatures and 28 water demands.” (CESA Findings, 51-52, 57). But, “Sacramento River temperatures are - 30 VERIFIED PETITION FOR WRIT OF MANDATE LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 1 artificially maintained through cold water releases in the summer from Shasta Reservoir [which is 2 managed by Reclamation] in order to provide adequate spawning and rearing habitat 3 downstream.” (ITP Attachment 8 Effects Analysis, 15-16.) Thus any impacts based on 4 temperature are a result of CVP operations, not SWP. As another example, the ITP imposes 5 limitations on exports based on salvage rates of Covered Species at both the CVP and SVP 6 salvage facilities. (E.g. ITP at 81, 86, 89.) In particular, the ITP requires SWP to restrict exports 7 for seven consecutive days based on cumulative salvage of juvenile Delta smelt at CVP and SWP 8 facilities. (ITP at 85-86.) In other words, even if the loss occurs only at the federal CVP 9 facilities, the SWP would still be required to reduce SWP water diversions as identified in these 10 conditions. CDFW’s imposition of mitigation to address impacts on the Covered Species caused 11 by other diverters’ activities violates CESA’s proportional mitigation requirement. 12 (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection 13 (2008) 44 Cal. 4th 459, 511 [finding that “to require that mitigation measures be roughly 14 proportional to a landowner's impact on a species means that the landowner is required to 15 mitigate only its own impacts on the species”].) 16 17 Infeasible mitigation 108. CESA dictates that all measures required to minimize and mitigate the impacts of 18 an authorized taking “shall be capable of successful implementation.” (Fish & Game Code 19 § 2081, subd. (b)(2).) CDFW issued the ITP with conditions that are not capable of successful 20 implementation, including, but not limited to, conditions that require DWR to prevent other water 21 diverters from diverting water withheld from SWP exports. For example, under ITP Conditions 22 8.18 and 8.19, DWR is required to ensure that no other water diverters divert water that DWR 23 reserved from export for the purpose of augmenting Delta outflow. (ITP at 105-108.) Because 24 CVP and SWP can be subjected to different operational criteria for OMR flows and export 25 restrictions under the separate state ITP and federal ESA permits (see Condition of Approval 26 8.10, ITP at 96), implementation of operational criteria is no longer coordinated and any water 27 not exported by DWR through the SWP may result in increased exports to the CVP rather than as 28 Delta outflow. If the SWP lowers exports to the minimum of 600 cfs for health and safety, the - 31 VERIFIED PETITION FOR WRIT OF MANDATE LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 1 SWP still will not, in certain circumstances, be able to meet the outflow reductions requirements 2 required in the ITP without similar export reductions by the CVP. CDFW admits that the CVP 3 and the SWP may be operated under differing operational criteria, but simultaneously imposes 4 operational criteria “that assume coordination by [DWR] and Reclamation.” (Condition of 5 Approval 8.10, ITP at 96.) CDFW provides no explanation as to how DWR and Reclamation are 6 expected to coordinate to meet operational criteria under the ITP and simultaneously meet the 7 differing operational criteria under the federal ESA approvals. Moreover, operation of the SWP 8 to a different OMR relative to CVP may not be fully consistent with the 2018 COA Amendment. 9 (SWC DEIR Comments at 5.) 10 11 Unfettered discretion 109. There is a division of labor between CDFW and DWR. On the one hand, under 12 CESA, CDFW is charged with protection of threatened and endangered species. (Fish & Game 13 Code § 2050 et seq.) On the other hand, DWR is responsible for various duties and 14 responsibilities regarding the administration of water resources in the State, including “full charge 15 and control” of the SWP. (Water Code §§ 11451, 11260.) 16 110. The ITP runs afoul of this statutory division by providing CDFW with unfettered 17 discretion to make SWP operational decisions. For example, the ITP requires the appointment of 18 a Designated Biologist with extraordinarily broad powers who can immediately stop any activity 19 that does not comply with the ITP. (ITP at 52-53.) Similarly, under ITP Condition 8.1.4, if the 20 water operations management team cannot reach a resolution on an operational recommendation, 21 “the CDFW Director may require Permittee to implement an operational recommendation 22 provided by CDFW. CDFW will provide its operational decision to Permittee in writing. 23 Permittee shall implement the operational decision required by CDFW.” (ITP at 71.) CDFW 24 does not establish parameters within which DWR must operate—rather, CDFW takes over 25 operational decisions for itself. By including such provisions in the ITP, CDFW is acting beyond 26 its statutory authority and has given itself the power to operate the SWP. 27 28 - 32 VERIFIED PETITION FOR WRIT OF MANDATE 1 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 2 Inadequate CESA findings 111. CDFW’s CESA Findings are inadequate, misleading, contradictory, and 3 unsupported by substantial evidence. Contrary to law, CDFW failed to rely on the best scientific 4 information in making its findings and issuing the ITP. (Fish & Game Code § 2081, subd. (c).) 5 Instead, CDFW relied on conclusory statements and repeatedly failed to acknowledge the 6 scientific uncertainty in its assumptions. For example, DWR made clear in the FEIR (which 7 CDFW relied on) that it “does not agree that the ‘Kimmerer regression’ is the best available 8 science or that any decisions should be made based on the ‘Kimmerer regressions.’” (FEIR 9 Appendix E, E2-1.) Nevertheless, CDFW relied on that modeling in the Effects Analysis. (ITP 10 11 Attachment 7 Effects Analysis, 69, 75, 84.) 112. Additionally, when examining whether the mitigation is roughly proportional to 12 the impact of the authorized taking in its CESA Findings, CDFW makes no attempt to reconcile 13 relatively small impacts with substantial mitigation measures. (CESA Findings, 41-42.) CDFW 14 does not explain how the extent of mitigation is proportional to the extent of the impacts of the 15 authorized taking. (CESA Findings, 41-42.) 16 17 Unjustified mitigation lacking necessary public review 113. CEQA and CESA impose an obligation on CDFW to provide an opportunity to the 18 public to review and comment on conditions of the ITP adopted by CDFW, when such conditions 19 were not proposed in the CESA Application. CDFW is required to issue an incidental take permit 20 in compliance with CEQA and relies on the CEQA public review process in processing its 21 incidental take permits. (Cal. Code Regs. tit. 14, §§ 783.3, 783.5.) Under CDFW’s CESA 22 regulations, as responsible agency, it had three options when making a decision on the CESA 23 Application: (1) proceed with an action under Public Resources Code section 15096, subdivision 24 (e); (2) approve the permit and make findings; or (3) deny the permit and provide a written 25 statement to the applicant of the basis for that denial including “a description of any measures the 26 Director deems necessary in order for the application to be approved.” (Cal. Code Regs. tit. 14, 27 § 783.5.) 28 - 33 VERIFIED PETITION FOR WRIT OF MANDATE 1 Instead of following the process proscribed by its regulations, CDFW unilaterally 2 applied voluminous mitigation measures that were not considered in the DEIR or FEIR or subject 3 to any public review. Such mitigation measures include, but are not limited to, requiring the 4 appointment of a Designated Biologist with extraordinarily broad powers over the SWP (ITP at 5 52-53), and unilaterally imposing a new approach to Delta smelt salvage calculation limit and 6 corresponding OMR restrictions (ITP at 85-86). 7 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 114. 115. The law does not tolerate CDFW’s clandestine imposition of mitigation costing 8 millions of dollars when it had every opportunity as a responsible agency to inform DWR of the 9 mitigation it thought was required to comply with CESA. 10 11 Prejudicial error 116. The inadequacies alleged above are prejudicial and require CDFW’s issuance of 12 the ITP to be rescinded with directions to complete a full review in compliance with CESA. 13 CDFW’s actions constitute a prejudicial abuse of discretion because CDFW failed to proceed in a 14 manner required by law. 15 THIRD CAUSE OF ACTION 16 (Petition for Writ of Mandate Pursuant to Code Civ. Proc. §§ 1085 and 1094.5–Violation of the 17 California Environmental Quality Act) 18 (Against CDFW and DOES 1-100) 19 20 21 117. SWC and KCWA incorporate herein by reference each previous paragraph of this Petition as though set forth here in full. 118. “[T]he legislature intended [CEQA] to be interpreted in such manner as to afford 22 the fullest possible protection to the environment within the reasonable scope of the statutory 23 language.” (City of San Diego v. Board of Trustees of the California State University (2015) 61 24 Cal.4th 945, 963, internal punctuation and citation omitted.) When complying with CEQA, a 25 responsible agency must proceed in the manner required by law, and its determinations must be 26 supported by substantial evidence. (Pub. Resources Code § 21168.5; CEQA Guidelines § 15096; 27 RiverWatch v. Olivenhain Muni. Water Dist. (2009) 170 Cal.App.4th 1186.) 28 - 34 VERIFIED PETITION FOR WRIT OF MANDATE 1 119. The defects in the FEIR are pervasive and fundamental, so much so that they make 2 informed decision-making and informed public participation impossible. CDFW’s reliance on 3 the defective FEIR as a responsible agency to issue the ITP, along with CDFW’s approval of a 4 project that was not analyzed in the FEIR, constitute procedural violations of CEQA subject to de 5 novo review in this court. CDFW’s CEQA violations include, but are not limited to the 6 following: 7 8 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9 Inconsistent project description 120. A stable and consistent project description is essential to achieving CEQA’s mandate. (Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 10 Cal.App.5th 277.) As set forth above in greater detail, the FEIR violates this fundamental 11 mandate because the project description was not stable throughout the administrative process and 12 because neither the Refined Alternative 2b Project nor the project that CDFW approved in the 13 ITP were analyzed in the FEIR. The project identified and analyzed in the DEIR is the SWP LTO 14 Project. However, the project described and approved in the ITP is materially different than the 15 LTO Project, the alternatives identified in the DEIR, and the Refined Alternative 2b Project. The 16 project approved by CDFW via the ITP was not analyzed in the FEIR. Essentially, the project 17 that CDFW approved has not been subject to any CEQA review at all. 18 121. The project descriptions in the DEIR, CESA Application, FEIR and ITP are all 19 materially different. This inconsistency in describing the project prevented informed public 20 comment and informed decision-making and rendered the FEIR insufficient as an informational 21 document. As such, CDFW’s reliance on the FEIR as a responsible agency to issue the ITP is a 22 procedural violation of CEQA. 23 24 Failure to exercise independent judgment 122. SWC and KCWA are informed and believe that CDFW insisted on DWR’s abrupt 25 switch from an approach based on science and substantial evidence to one that improperly 26 focused on “no increase in exports.” As such, SWC and KCWA assert that CDFW pre- 27 determined that the ITP would not allow any additional exports from the Delta, regardless of what 28 science and the CEQA analysis showed. - 35 VERIFIED PETITION FOR WRIT OF MANDATE 1 Given this, CDFW did not exercise its independent judgment in reviewing the 2 certified FEIR as a responsible agency and issuing the ITP based on that FEIR. CDFW’s 3 approval of the ITP was pre-determined, in violation of CEQA’s procedural mandate. 4 Project approved in Incidental Take Permit is inconsistent with the project objectives 5 identified in the Draft Environmental Impact Report 6 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 123. 124. The DEIR states that one of the SWP LTO Project’s objectives is to “convey water 7 in accordance with DWR’s existing water rights to deliver water pursuant to water contracts and 8 agreements up to full contract quantities.” (DEIR, 3-1.) The project approved in the ITP is 9 inconsistent with this stated objective. 10 125. Evidence demonstrates that additional quantities of water above the existing SWP 11 baseline could be exported without resulting in any significant impacts to the Delta. The 12 modified project that CDFW approved in the ITP will not allow any export increases. As such, 13 the project approved in the ITP is inconsistent with the DEIR’s project objective. 14 126. CDFW’s approval of the ITP, even though it is inconsistent with the project 15 objectives identified in the DEIR, violates CEQA, precludes informed public comment and 16 informed decision-making, and constitutes a procedural violation of CEQA. 17 Failure to analyze and mitigate the Incidental Take Permit project’s significant impacts on 18 the environment 19 127. CDFW violated CEQA by relying on a defective FEIR for all the reasons 20 identified above. Further, and as explained above, the Refined Alternative 2b Project first 21 appeared in the FEIR, so the DEIR necessarily did not analyze Refined Alternative 2b’s 22 potentially significant impacts. As also explained above, the FEIR did not adequately analyze or 23 mitigate the Refined Alternative 2b Project’s impacts. As a result of this, the FEIR is inadequate 24 and CDFW could not rely on it to approve the ITP. 25 128. It is well-established that public agencies, including CEQA responsible agencies, 26 are not permitted to approve projects until after the completion of adequate CEQA review. 27 (RiverWatch v. Olivenhain Muni. Water Dist. (2009) 170 Cal.App.4th 1186 [striking down 28 responsible agency’s approval where it preceded CEQA review].) CDFW committed a - 36 VERIFIED PETITION FOR WRIT OF MANDATE 1 procedural violation by approving a project in the ITP that was not identified or analyzed in the 2 FEIR at all. The project in the ITP is materially different than the Refined Alternative 2b Project. 3 Changes imposed through the ITP include (but are not limited to) modifications in Longfin smelt 4 OMR criteria, Delta smelt salvage calculations and export reductions, limits on CVP use of SWP 5 facilities when the two projects are not operating to the same OMR, compensatory mitigation and 6 funding in perpetuity for management of habitat. These changes, and the potential significant 7 impacts arising from them, were never analyzed in any CEQA document. 8 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9 10 11 12 129. In approving a project in the ITP despite the fact that its potentially significant impacts were never analyzed in any CEQA document, CDFW abused its discretion and violated CEQA’s procedural mandates. No substantial evidence to support approval of Incidental Take Permit 130. The conclusions presented in an environmental impact report must be supported by 13 substantial evidence. (Code Civ. Proc. § 1094.5; Pub. Resources Code § 21168.5.) As alleged in 14 detail above, there is no substantial evidence to support the FEIR’s conclusions. As such, CDFW 15 could not rely on the FEIR to approve the ITP. 16 17 131. document, there is no substantial evidence to support CDFW’s approval of the ITP. 18 19 Further, because the project approved in the ITP was not analyzed in any CEQA Improper imposition of mitigation measures 132. Mitigation measures are only required to minimize a project’s significant 20 environmental impacts. (CEQA Guidelines § 15126, subd. (e).) Mitigation for impacts that are 21 less than significant is not required. (Ibid.) Further, there must be a nexus and proportionality 22 between the mitigation measure imposed and the identified significant impact on the 23 environment. (CEQA Guidelines § 15126.4, subd. (a)(4.) Finally, any mitigation must be 24 “feasible,” or “capable of being accomplished in a successful manner within a reasonable period 25 of time.” (CEQA Guidelines § 15364.) 26 133. Here, CDFW adopted CEQA findings and issued a Notice of Determination 27 stating that CDFW had imposed mitigation (via the ITP) to reduce significant impacts under 28 CEQA. (E.g., CDFW’s CEQA Findings, 25, 26, 30, 33, 34, 37; CDFW’s Notice of - 37 VERIFIED PETITION FOR WRIT OF MANDATE 1 Determination.) Further, CDFW adopted a mitigation monitoring and reporting program 2 specifically under CEQA as part of its CEQA findings. Yet, neither the FEIR nor the ITP 3 characterize the severity of any potential impacts as significant. Therefore, CDFW’s imposition 4 of mitigation measures in the absence of any identified significant impacts is a prejudicial abuse 5 of discretion, because it lacks any nexus to any identified impacts under CEQA. LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 6 134. Further, given that neither the FEIR nor the ITP identify any potentially significant 7 impacts that would result from the Refined Alternative 2b Project or the project approved in the 8 ITP, there is no nexus between the mitigation measures and the alleged significant impacts that 9 the measures are intended to minimize. 10 135. In addition, because neither the FEIR nor the ITP identify any potentially 11 significant impacts that would result from the Refined Alternative 2b Project or the project 12 approved in the ITP, there is no proportionality between the mitigation measures and the alleged 13 significant impacts that the measures are intended to minimize. 14 136. Separate from its ITP conditions under CESA, CDFW’s mitigation measures 15 under CEQA exceed CDFW’s legal authority for the same reasons as set forth above, and, 16 therefore, are legally infeasible in violation of CEQA. 17 137. Similarly, ITP Condition 8.1.4, which states that “the CDFW Director may require 18 Permittee to implement an operational recommendation provided by CDFW,” is expressly 19 referenced and imposed as a CEQA mitigation measure through CDFW’s CEQA findings. (E.g., 20 CDFW’s CEQA Findings, 10, 11, 14, 17.) 21 138. Because it lacks the legal authority to impose such conditions for all the reasons 22 identified above, CDFW’s attempted imposition of those same conditions as CEQA mitigation 23 measures is legally infeasible and fails as a matter of law. 24 25 CEQA findings that are not supported by substantial evidence 139. Under CEQA, substantial evidence must support a responsible agency’s findings 26 regarding potentially significant impacts, and a “brief rationale” linking the substantial evidence 27 to the findings must be provided. (CEQA Guidelines §§ 15091, 15096.) 28 - 38 VERIFIED PETITION FOR WRIT OF MANDATE 1 Although neither the FEIR nor the ITP identified any significant impacts, CDFW 2 nonetheless adopted CEQA findings, purportedly to further CEQA’s informational purposes. 3 (CDFW’s CEQA Findings, 4, 5.) The findings, however, are based on the legally inadequate 4 FEIR and dependent on a shifting project description and project objectives, and are therefore not 5 supported by substantial evidence. 6 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 140. 141. Further, and even if CDFW did not identify any significant environmental impacts 7 requiring written CEQA findings, the findings are affirmatively misleading and contradictory. 8 This is because the findings are based upon a FEIR that did not actually analyze the project 9 approved in the ITP. CDFW’s CEQA findings are replete with references to the FEIR and 10 statements purporting that the FEIR analyzed impacts from the project approved in the ITP. 11 (E.g., CDFW’s CEQA Findings, 5, 7.) As such, CDFW’s CEQA findings affirmatively misled 12 decision-makers as well as the public for whom the findings were allegedly an “information 13 disclosure” tool, in a manner constituting a prejudicial abuse of discretion. 14 15 Prejudicial abuse of discretion 142. As alleged above, CDFW abused its discretion in numerous ways, such as by 16 relying on a procedurally and substantively flawed FEIR, by imposing CEQA mitigation for 17 unidentified impacts, for adopting misleading and contradictory findings, and for approving a 18 project that has not yet undergone adequate CEQA review. 19 143. The inadequacies alleged above are prejudicial and require CDFW’s CEQA 20 actions and its approval of the ITP to be rescinded until full environmental review in compliance 21 with CEQA is conducted. CDFW’s actions constituted a prejudicial abuse of discretion because 22 it failed to proceed in a manner required by law, and because its conclusions are not supported by 23 substantial evidence. (Pub. Resources Code § 21168.5.) 24 PRAYER FOR RELIEF 25 WHEREFORE, SWC and KCWA pray for relief as follows: 26 1. 27 28 For interlocutory and permanent injunctive relief restraining DWR and CDFW from taking any action to carry out the Refined Alternative 2b Project or the ITP. 2. For a peremptory writ of mandate commanding, inter alia, the following: (1) DWR - 39 VERIFIED PETITION FOR WRIT OF MANDATE 1 to set aside and vacate its approval of the Refined Alternative 2b Project, certification of the 2 FEIR, and CEQA lead agency findings; and (2) CDFW to set aside and vacate its issuance of the 3 ITP, CESA findings, and CEQA responsible agency findings; 4 3. For costs of suit; 5 4. For attorney fees pursuant to Code of Civil Procedure section 1021.5; and 6 5. For such other and further relief as the Court may deem just and proper. 7 8 Dated: April 28, 2020 BEST BEST & KRIEGER LLP JOSEPH P. BYRNE, GENERAL COUNSEL LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9 10 By: 12 13 14 edA, Skat, JOSEPH P. BYRNE CHARITY SCHILLER AMY HOYT Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 11 Dated: April 28, 2020 AMELIA T. MINABERRIGARAI, GENERAL COUNSEL 15 16 By: 17 AMELIA T. MINABERRIGARAI PAUL S WEILAND Attorneys for Petitioner/Plaintiff KERN COUNTY WATER AGENCY 18 19 20 [Deemed Verified as to Kern County Water Agency Pursuant to Code of Civ. Proc., § 446] 21 22 23 24 25 26 27 28 - 40 VERIFIED PETITION FOR WRIT OF MANDATE 1 VERIFICATION 2 I, Jennifer Pierre, certify and declare under penalty of perjury under the laws of the State of 3 California, that: 4 I am the General Manager for the State Water Contractors, a party to this action, and am 5 authorized to make this verification on its behalf 6 I have read the foregoing Verified Petition for Writ of Mandate and know its contents. 7 I am informed and believe and on that basis allege that the matters stated in the Verified Petition 8 for Writ of Mandate are true and correct. 9 10 Executed this 28 day of April, 2020, at Sacramento, Cali la. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1VERIFICATION OF JENNIFER PIERRE Exhibit A Indian Wells (760) 568-2611 Ontario (909) 989-8584 BEST BEST & KRIEGER li Irvine (949) 263-2600 ATTORNEYS Sacramento (916) 325-4000 AT LAW Los Angeles (213) 617-8100 San Diego (619) 525-1300 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, CA 92502 Phone: (951) 686-1450 Fax: (951) 686-3083 www.bbklaw.com Manhattan Beach (310) 643-8448 Walnut Creek (925) 977-3300 Washington, DC (202) 785-0600 Charity Schiller (951) 826-8223 charity.schiller@bbklaw.com File No. 27881.00029 April 28, 2020 VIA FIRST CLASS MAIL AND EMAIL California Department of Water Resources Attn: Karla Nemeth & Dean F. Messer P.O. Box 942836 Sacramento, CA 94236 Karla.Nemeth@water.ca.gov ROConLTO@water.ca.gov LTO@water.ca.gov Re: Written Notice of Commencement of Action challenging Environmental Impact Report (SCH No. 2019049121) and Approvals of the Long-Term Operation of the California State Water Project Dear Ms. Nemeth and Mr. Messer: PLEASE TAKE NOTICE that the State Water Contractors (“SWC”) and the Kern County Water Agency (“KCWA”) intend to file a Petition for Writ of Mandate against the Department of Water Resources (“DWR”), pursuant to the California Environmental Quality Act (“CEQA”), relating to the Long-Term Operation of the California State Water Project (“Project”). The Petition for Writ of Mandate will seek, inter alia, a writ of mandate ordering DWR to set aside its March 27, 2020 certification of the Environmental Impact Report (State Clearinghouse No. 2019049121) for the Project and all related actions/approvals until compliance with CEQA has been achieved. SWC and KCWA provide this Notice of Commencement of Action pursuant to Public Resources Code section 21167.5. Sincerely, Pa/ cS 0,0,6tA4Adi elAx. Icititi ____________________________ Paul S. Weiland of NOSSAMAN LLP for Kern County Water Agency 27881.00029\32886928.1 _____________________________ Charity Schiller of BEST BEST & KRIEGER LLP for State Water Contractors 1 PROOF OF SERVICE 2 At the time of service I was over 18 years of age and not a party to this action. My business address is 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502. On April 28, 2020, I served the following document(s): 3 4 5 Written Notice of Commencement of Action challenging Environmental Impact Report (SCH No. 2019049121) and Approvals of the Long-Term Operation of the California State Water Project 6 7 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 10 By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. By United States mail. Before 12:00 p.m., I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) listed below (specify one): 11 Deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. 12 13 Placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 14 15 16 17 18 19 20 21 22 23 24 25 26 I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Riverside, California. By personal service. At ____ a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached. 27 28 27881.00029\32904145.1 -1- 1 2 3 4 5 6 By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. By e-mail or electronic transmission. Before 12:00 p.m., I caused the document(s) to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 7 8 9 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 28, 2020, at Riverside, California. LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 10 ____________________________ Sabrina Brenner 11 12 13 14 15 16 California Department of Water Resources Attn: Karla Nemeth & Dean F. Messer P.O. Box 942836 Sacramento, CA 94236 Karla.Nemeth@water.ca.gov ROConLTO@water.ca.gov LTO@water.ca.gov 17 18 19 20 21 22 23 24 25 26 27 28 27881.00029\32904145.1 -2- Exhibit Indian Wells (760) 568-2611 BEST BEST & KRIEGER li Irvine (949) 263-2600 ATTORNEYS AT LAW Los Angeles (213) 617-8100 Ontario (909) 989-8584 Sacramento (916) 325-4000 San Diego (619) 525-1300 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, CA 92502 Phone: (951) 686-1450 Fax: (951) 686-3083 www.bbklaw.com Manhattan Beach (310) 643-8448 Walnut Creek (925) 977-3300 Washington, DC (202) 785-0600 Charity Schiller (951) 826-8223 charity.schiller@bbklaw.com File No. 27881.00029 April 28, 2020 VIA FIRST CLASS MAIL AND EMAIL California Department of Fish & Wildlife Attn: Charlton H. Bonham and Steven Ingram 1416 9th Street, 12th Floor Sacramento, CA 95814 Mailing: P.O. Box 944209 Sacramento, CA 94244-2090 director@wildlife.ca.gov steven.ingram@wildlife.ca.gov Re: California Department of Fish & Wildlife Attn: Josh Grover 1010 Riverside Parkway West Sacramento, CA 95605 joshua.grover@wildlife.ca.gov Written Notice of Commencement of Action challenging Environmental Impact Report (SCH No. 2019049121), Approvals of the Long-Term Operation of the California State Water Project, and Sacramento-San Joaquin Delta Incidental Take Permit No. 2081-2019-066-00 Dear Mr. Bonham, Mr. Ingram, and Mr. Grover: PLEASE TAKE NOTICE that the State Water Contractors (“SWC”) and the Kern County Water Agency (“KCWA”) intend to file a Petition for Writ of Mandate against the Department of Fish and Wildlife (“CDFW”) pursuant to the California Environmental Quality Act (“CEQA”) and the California Endangered Species Act (“CESA”), relating to the Long-Term Operation of the California State Water Project and the Incidental Take Permit (No. 2081-2019066-00) (“ITP”) issued for same. The Petition for Writ of Mandate will seek, inter alia, a writ of mandate ordering CDFW to set aside its actions as a responsible agency under CEQA based on an inadequate Environmental Impact Report (State Clearinghouse No. 2019049121), and to set aside the ITP until compliance with CEQA and CESA has been achieved. SWC and KCWA provide this Notice of Commencement of Action pursuant to Public Resources Code section 21167.5. Sincerely, Potioic i. Nola, e/(.&<. icit((e4 ____________________________ Paul S. Weiland of NOSSAMAN LLP for Kern County Water Agency 27881.00029\32887025.1 _____________________________ Charity Schiller of BEST BEST & KRIEGER LLP for State Water Contractors 1 PROOF OF SERVICE 2 At the time of service I was over 18 years of age and not a party to this action. My business address is 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502. On April 28, 2020, I served the following document(s): 3 4 5 6 7 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 10 11 Written Notice of Commencement of Action challenging Environmental Impact Report (SCH No. 2019049121), Approvals of the Long-Term Operation of the California State Water Project, and Sacramento-San Joaquin Delta Incidental Take Permit No. 2081-2019-066-00 By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. By United States mail. Before 12:00 p.m., I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) listed below (specify one): 12 Deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. 13 Placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 14 15 16 17 18 19 20 21 22 23 24 25 26 I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Riverside, California. By personal service. At ____ a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached. 27 28 27881.00029\32904140.1 -1- 1 2 3 4 5 6 By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. By e-mail or electronic transmission. Before 12:00 p.m., I caused the document(s) to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 7 8 9 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 28, 2020, at Riverside, California. LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 10 ____________________________ Sabrina Brenner 11 12 13 14 15 16 17 California Department of Fish & Wildlife Attn: Charlton H. Bonham and Steven Ingram 1416 9th Street, 12th Floor Sacramento, CA 95814 Mailing: P.O. Box 944209 Sacramento, CA 94244-2090 director@wildlife.ca.gov steven.ingram@wildlife.ca.gov California Department of Fish & Wildlife Attn: Josh Grover 1010 Riverside Parkway West Sacramento, CA 95605 joshua.grover@wildlife.ca.gov 18 19 20 21 22 23 24 25 26 27 28 27881.00029\32904140.1 -2- Exhibit 1 2 3 4 5 6 JOSEPH P. BYRNE, GENERAL COUNSEL, Bar No. 190365 Joseph.Byrne@bbklaw.com CHARITY SCHILLER, Bar No. 234291 Charity.Schiller@bbklaw.com AMY HOYT, Bar No. 149789 Amy.Hoyt@bbklaw.com Best Best & Krieger LLP 3390 University Avenue, 5th Floor P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Facsimile: (951) 686-3083 7 8 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 9 [Additional Counsel on Next Page] 10 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF FRESNO 13 14 STATE WATER CONTRACTORS and KERN COUNTY WATER AGENCY 15 Case No. Filed under California Environmental Quality Act (CEQA) Petitioners/Plaintiffs, 16 v. NOTICE TO ATTORNEY GENERAL OF CEQA ACTION 17 18 19 STATE OF CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE, STATE OF CALIFORNIA DEPARTMENT OF WATER RESOURCES, and DOES 1 through 100, [Pub. Resources Code, § 21167.7; Code of Civil Procedure, §388] 20 21 22 23 Respondents/Defendants/ Real Parties in Interest. ROES 1 through 100, Real Parties in Interest. 24 25 26 27 28 27881.00029\32897285.1 NOTICE TO ATTORNEY GENERAL OF CEQA ACTION 1 ADDITIONAL COUNSEL 2 WILLIAM M. SLOAN, Bar No. 203583 WMSloan@Venable.com CHELSEA E. O'SULLIVAN, Bar No. 308369 ceosullivan@Venable.com Venable LLP 101 California Street, Suite 3800 San Francisco, CA 94111 Telephone: (415) 343-4490 3 4 5 6 7 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 8 9 10 11 12 13 14 AMELIA T. MINABERRIGARAI, GENERAL COUNSEL, Bar No. 192359 ameliam@kcwa.com KERN COUNTY WATER AGENCY 3200 Rio Mirada Drive Bakersfield, CA 93308 Telephone: (661) 634-1409 PAUL S WEILAND, Bar No. 237058 pweiland@nossaman.com Nossaman LLP 18101 Von Karman Ave Suite 1800 Irvine, CA 92612-0177 Telephone: (949) 833-7800 15 16 Attorneys for Plaintiff/Petitioner KERN COUNTY WATER AGENCY 17 18 19 20 21 22 23 24 25 26 27 28 27881.00029\32897285.1 -2NOTICE TO ATTORNEY GENERAL OF CEQA ACTION 1 2 TO THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA: PLEASE TAKE NOTICE, pursuant to Public Resources Code section 21167.7 and Code 3 of Civil Procedure Section 388, that on April 28, 2020, Petitioners/Plaintiffs State Water 4 Contractors and Kern County Water Agency (“Petitioners”) filed a Verified Petition for Writ of 5 Mandate (“Petition”) against Respondents/Defendants/Real Parties in Interest California 6 Department of Fish and Wildlife (“CDFW”) and California Department of Water Resources 7 (“DWR”), in the Superior Court of the State of California, County of Fresno. A copy of the 8 Petition is attached to this Notice as “Exhibit A.” LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9 10 Dated: April 28, 2020 11 BEST BEST & KRIEGER LLP JOSEPH P. BYRNE, GENERAL COUNSEL 12 By: 13 JOSEPH P. BYRNE CHARITY SCHILLER AMY HOYT Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 14 15 16 Dated: April 28, 2020 17 AMELIA T. MINABERRIGARAI, GENERAL COUNSEL 18 By: 19 PowL 4)AAct, AMELIA T. MINABERRIGARAI PAUL S WEILAND Attorneys for Petitioner/Plaintiff KERN COUNTY WATER AGENCY 20 21 22 23 24 25 26 27 28 27881.00029\32897285.1 -3NOTICE TO ATTORNEY GENERAL OF CEQA ACTION 1 PROOF OF SERVICE 2 3 At the time of service I was over 18 years of age and not a party to this action. My business address is 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502. On April 28, 2020, served the following document(s): 4 NOTICE TO ATTORNEY GENERAL OF CEQA ACTION 5 6 7 8 By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below (specify one): 9 Deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 10 11 Placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Riverside, California. By personal service. At ____ a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 28 27881.00029\32897285.1 -1PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 10 By e-mail or electronic transmission. I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Xavier Becerra, Attorney General Office of the Attorney General ATTN: CEQA Filing 2550 Mariposa Mall, Room 5090 Fresno, CA 93721-2271 Phone: (559) 477-1691 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 28, 2020, Riverside, California. 11 12 Sabrina Brenner 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27881.00029\32897285.1 -2PROOF OF SERVICE Exhibit 1 2 3 4 5 6 JOSEPH P. BYRNE, GENERAL COUNSEL Bar No. 190365 Joseph.Byrne@bbklaw.com CHARITY SCHILLER, Bar No. 234291 Charity.Schiller@bbklaw.com AMY HOYT, Bar No. 149789 Amy.Hoyt@bbklaw.com Best Best & Krieger LLP 3390 University Avenue, 5th Floor P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Facsimile: (951) 686-3083 7 8 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 9 [Additional Counsel on Next Page] 10 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF FRESNO 13 14 STATE WATER CONTRACTORS and KERN COUNTY WATER AGENCY 15 Case No. Filed under California Environmental Quality Act (CEQA) Petitioners/Plaintiffs, 16 v. 17 18 19 STATE OF CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE, STATE OF CALIFORNIA DEPARTMENT OF WATER RESOURCES, and DOES 1 through 100, PETITIONERS’ ELECTION TO PREPARE THE ADMINISTRATIVE RECORD PURSUANT TO PUBLIC RESOURCES CODE SECTION 21167.6 20 21 22 23 Respondents/Defendants/ Real Parties in Interest. ROES 1 through 100, Real Parties in Interest. 24 25 26 27 28 27881.00029\32885467.2 PETITIONERS’ ELECTION TO PREPARE THE ADMINISTRATIVE RECORD 1 ADDITIONAL COUNSEL 2 WILLIAM M. SLOAN, Bar No. 203583 WMSloan@Venable.com CHELSEA E. O'SULLIVAN, Bar No. 308369 ceosullivan@Venable.com Venable LLP 101 California Street, Suite 3800 San Francisco, CA 94111 Telephone: (415) 343-4490 3 4 5 6 7 Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 8 9 10 11 12 13 14 AMELIA T. MINABERRIGARAI, GENERAL COUNSEL, Bar No. 192359 ameliam@kcwa.com KERN COUNTY WATER AGENCY 3200 Rio Mirada Drive Bakersfield, CA 93308 Telephone: (661) 634-1409 PAUL S WEILAND, Bar No. 237058 pweiland@nossaman.com Nossaman LLP 18101 Von Karman Ave Suite 1800 Irvine, CA 92612-0177 Telephone: (949) 833-7800 15 16 Attorneys for Plaintiff/Petitioner KERN COUNTY WATER AGENCY 17 18 19 20 21 22 23 24 25 26 27 28 27881.00029\32885467.2 -2- PETITIONERS’ ELECTION TO PREPARE THE ADMINISTRATIVE RECORD 1 2 TO RESPONDENTS AND DEFENDANTS: Pursuant to Public Resources Code section 21167.6(b)(2), Petitioners/Plaintiffs State 3 Water Contractors and Kern County Water Agency (“Petitioners”) hereby notifies 4 Respondents/Defendants/ Real Parties in Interest California Department of Fish and Wildlife and 5 California Department of Water Resources of Petitioner's election to prepare the Administrative 6 Record of proceedings relating to this action. 7 8 Dated: April 28, 2020 LAW OFFICES OF BEST BEST & KRIEGER LLP 3390 UNIVERSITY AVENUE, 5TH FLOOR P.O. BOX 1028 RIVERSIDE, CALIFORNIA 92502 9 BEST BEST & KRIEGER LLP JOSEPH P. BYRNE, GENERAL COUNSEL 10 By: 11 JOSEPH P. BYRNE CHARITY SCHILLER AMY HOYT Attorneys for Petitioner/Plaintiff STATE WATER CONTRACTORS 12 13 14 &(-ek , !duae„ Dated: April 28, 2020 15 AMELIA T. MINABERRIGARAI, GENERAL COUNSEL 16 By: 17 WAAct, AMELIA T. MINABERRIGARAI PAUL S WEILAND Attorneys for Petitioner/Plaintiff KERN COUNTY WATER AGENCY 18 19 20 21 22 23 24 25 26 27 28 27881.00029\32885467.2 -3- PETITIONERS’ ELECTION TO PREPARE THE ADMINISTRATIVE RECORD