SUPERIOR COURT OF THE STATE OF CALIFORNIA · the waters of San Francisco Bay and the Pacific Ocean within and adjacent to San Francisco. 15. The Council’s action will likely lead

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______________________________________________________________________________________ Petitioner Save the California Delta Alliance’s Verified Petition and Complaint

MICHAEL A. BRODSKY, SBN 219073 Law Offices of Michael A. Brodsky 201 Esplanade, Upper Suite Capitola, California 95010 Telephone: (831) 469-3514 Fax: (831) 471-9705 Email: [email protected] Attorney for Petitioner/Plaintiff SAVE THE CALIFORNIA DELTA ALLIANCE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

SAVE THE CALIFORNIA DELTA ALLIANCE

Petitioner and Plaintiff,

v.

DELTA STEWARDSHIP COUNCIL, a state public agency, and Does 1 through 100, inclusive,

Respondents and Defendants.

CEQA CASE

Case No.:

VERIFIED PETITION FOR A WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (Pub. Res. Code §§ 21000 et seq.; Water Code §§ 85000 et seq.; Code Civ. Proc. §§ 1060, 1085, 1094.5; Gov. Code §§ 11342.2, 11350)

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Save the California Delta Alliance’s Verified Petition and Complaint

INTRODUCTION

Petitioner alleges:

1. This action challenges the Delta Stewardship Council’s (“Council”)

approval of the Delta Plan and proposed Delta Plan Regulations because the Plan and

Regulations violate the Sacramento-San Joaquin Delta Reform Act of 2009, Cal. Water

Code §§ 8500–85350 (“Delta Reform Act”), which created the Council and directed it to

formulate the Plan and Regulations. This action also challenges the Council’s

certification of the Delta Plan’s Final Programmatic Environmental Impact Report

(“PEIR”) and adoption of Findings and a Statement of Overriding Considerations because

the PEIR, Findings, and Statement fail to comply with the California Environmental

Quality Act, Pub. Res. Code § 21000 et seq (“CEQA”) and fail to comply with CEQA’s

implementing regulations, 14 Cal. Code Regs. § 15000 (“CEQA Guidelines”).

2. The Sacramento, San Joaquin, Cosumnes, and Mokelumne Rivers, along

with their tributaries, drain the vast Delta watershed, which covers 45,000 square miles

(30,000,000 acres) stretching from Fresno to the Oregon border. The Delta is formed at

the confluence of these rivers and covers an area of approximately 1300 square miles

located in a triangular area roughly between Sacramento, Manteca, and Benicia. The

Delta’s myriad branching sloughs, marshes, and islands provide critical habitat for

numerous species, a boating and recreational wonderland enjoyed by hundreds of

thousands of Californian’s each year, and a productive agricultural landscape rich in

culture and history. Proposed Final Delta Plan Redline Version, adopted May 16, 2013 at

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9 (“Delta Plan”). The Delta is also the hub of California’s water infrastructure system;

more than two thirds of the state’s residents and over two million acres of farmland

receive water exported from the Delta through state and federal pumping plants and

canals. Cal. Water Code § 85004(a). The federally operated Central Valley Project, state

operated State Water Project, and locally operated regional canals form the largest

contiguous piece of water supply infrastructure in the world, reaching almost every corner

of the state. The vast amount of water exported through this water conveyance system

from the Delta’s critical aquatic habitat causes “an ever spiraling tension over water

exports and ecosystem decline.” Delta Plan at 10 (citation omitted).

3. The Council and the Delta Plan came to life because in 2009 the legislature

found that the “Sacramento-San Joaquin Delta watershed and California’s water

infrastructure are in crises and existing Delta policies are not sustainable. Resolving the

crisis requires fundamental reorganization of the state’s management of Delta watershed

resources.” Cal. Water Code § 85001(a). To achieve the requisite reorganization the

legislature created the Council and charged it with developing the Delta Plan, which is

the “comprehensive, long-term management plan for the Delta ... .” Cal Water Code §

85059. Because of the urgency, vast scale, and complexity of the problem, the legislature

endowed the Council with the powers of a super-agency and authorized it to coordinate

the activities of all other state agencies responsible for the Delta, directing the Council to

“establish and oversee a committee of agencies responsible for implementing the Delta

Plan.” Cal. Water Code § 85204.

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4. The crux of Petitioner’s complaint and proximate cause of the Council’s

CEQA and Delta Reform Act violations, is that the Council has utterly fallen down on its

mission. With only a few narrow exceptions, the Council has failed to take up the

legislature’s charge to promulgate a concrete and specific action plan to resolve the crises.

Instead it has done little more than rehearse existing law and policy, discuss problems

facing the Delta in general terms, and conclude that the Council is an innocent but

impotent bystander: “The Delta Plan’s likelihood of nudging already considered projects

forward, and the Delta Plan’s degree of influence on future undefined projects, is

unclear.” DPEIR at 2B-2. “How much influence the Council will have is unclear.” Id. In

the critical area of water conveyance the Council’s view of its own authority is so timid

that it believes that it has only “the authority to opine generally about improving Delta

conveyance as it may relate to the rest of the Delta Plan ... .” DPEIR at 23–25.

5. The net result of the Council’s abdication is to convert the Delta

Plan into little more than a rubber stamp for the massive and controversial

water diversion project known inaptly as the Bay Delta Conservation Plan

(“BDCP”) while leaving the Bay-Delta ecosystem without protection.

THE PARTIES

Petitioner and Plaintiff Save the California Delta Alliance

6. Petitioner Save the California Delta Alliance is an

unincorporated association validly existing under the laws of the State of

California. Its organizational purpose is to work with local, state, and federal

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government to create a balanced state water plan that keeps the California

Bay-Delta Estuary a safe and healthy environment while providing

reasonable water exports for other parts of the state.

7. STCDA represents an active membership of over 700

individuals. STCDA members own waterfront homes with attached docks in

the Delta, swim, fish, boat, water-ski, wakeboard, and otherwise recreate in

the Delta. STCDA members earn their livings in Bay-Delta related

businesses, including marinas, fishing enterprises, water sports enterprises,

Delta waterfront real estate agencies, and many other Bay-Delta related

enterprises. STCDA members also live, work, boat, fish, and recreate in San

Francisco, on San Francisco Bay, and in the Pacific Ocean adjacent to San

Francisco.

Respondent and Defendant Delta Stewardship Council

8. Respondent and Defendant California Delta Stewardship Council

(“Council) is an agency of the State of California. Cal. Water. Code, § 85200(a) The

Council has powers including the power to be sued. Cal. Water. Code, § 85210(a).

Does 1 through 100

9. Petitioners are currently unaware of the true names and capacities of Does

1 through 100, inclusive, and therefore sue those parties by such fictitious names. Does 1

through 100, inclusive, are agents of the State government who are responsible in some

manner for the conduct described in this Petition, or other persons or entities presently

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unknown to the Petitioners who claim some legal or equitable interest in the program that

is the subject of this action. Petitioners will amend this Petition and Complaint to show

the true names and capacities of Does 1 through 100 when such names and capacities

become known.

JURISDICTION

10. This Court has jurisdiction over this action pursuant to sections 21168 and

21168.5 of the Public Resources Code, sections 1085 and 1094.5 and of the Code of Civil

Procedure, and sections 11342.2 and 11350 of the Government Code.

11. This action is timely filed in accordance with Public Resources Code

section 21167(b) and CEQA Guideline section 15112.

12. Petitioner has complied with Public Resources Code section 21167.5 by

providing written notice of commencement of this action to the Council prior to filing this

Petition and Complaint. A true and correct copy of the notice, along with proof of service,

is attached hereto as Exhibit A.

VENUE

13. Venue for this action properly lies in the San Francisco Superior Court

because in a CEQA case the cause of action arises in the county where the effects of the

action will be felt not in the County where the public agency sits or made its approval.

California State Parks Found. v. Superior Court, 150 CA 4th 826, 834 (2007) (holding

that “a cause arises in the county where the effects of the administrative action are felt, not

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where the agency signs the challenged order or takes the challenged action.”) (citation and

quotation marks omitted).

14. The Council’s action will have significant negative impacts on multiple

aspects of environmental quality throughout the San Francisco Bay-Delta estuary and

beyond. However, the Council’s action will have a highly visible and infamous impact on

the waters of San Francisco Bay and the Pacific Ocean within and adjacent to San

Francisco.

15. The Council’s action will likely lead to the extirpation of winter run and

spring run Chinook Salmon in the Sacramento River. See National Marine Fisheries

Progress Assessment, April 4, 2013, available at

http://nodeltagates.files.wordpress.com/2013/04/nmfs_progress_assessment_regarding_th

e_bdcp_administrative_draft_4-11-13-sflb.pdf (last visited June 15, 2013). The Chinook

is the largest of Salmon, often exceeding forty pounds and growing up to 100 pounds. No

other Salmon approaches this size. Although the Chinook spawns in the Sacramento

River, it spends a good portion of its life in the waters in and around San Francisco.

Disappearance of these marvelous fish from San Francisco waters would strike a sharp

blow to recreational and commercial fishing in San Francisco. The Bay Area’s most

visible symbol of a thriving fishery and productive estuary, Fisherman’s wharf, will be

significantly and adversely impacted.

16. Disappearance of the Sacramento Run Chinook Salmon will likely be the

most visible failure of the Delta Plan and will likely receive statewide, national, and

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international attention. The hope for recovery of the Chinook is on par with what recovery

of the Bald Eagle has been to the national commitment to environmental stewardship.

Members of STCDA live in San Francisco, fish for Chinook Salmon in and around San

Francisco, and would be directly harmed by the extirpation of this species due to the

Council’s failures. Petitioner’s mission to achieve a healthy Bay-Delta ecosystem would

be shattered by the disappearance of the Chinook. It “is where the shaft strikes the

plaintiff, not where it is drawn that counts.” State Parks Found., 150 CA 4th at 834

(quotation marks and citation omitted). Although thrown from Sacramento, the Delta

Stewardship Council’s shaft strikes plaintiff a hard blow in the County of San Francisco.

STANDING

17. The purposes of STCDA, to curtail excessive water exports and restore and

protect the Bay-Delta ecosystem including vital fisheries, while enhancing and protecting

the unique agricultural and cultural character of the Delta, and to create a balanced plan to

manage the Bay-Delta ecosystem and statewide water conveyance system will all be

directly, indirectly, substantially and irreparably harmed by the Council’s actions.

18. STCDA members reside within the project area, many within the statutory

Delta and others in San Francisco and the secondary Delta. Members will suffer direct

and concrete injury in being deprived of their use and enjoyment of the Delta, San

Francisco Bay, and Ocean waters because of the Council’s actions, including diminished

ability to engage in water sports, fishing, and recreational boating.

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19. STCDA and its members have a beneficial interest in preventing the

environmental harm that will be caused by the Council’s actions.

20. STCDA and its members also have a strong interest in enforcing the public

duty of the Council to comply with CEQA and the Delta Reform Act. The Council has

breeched an important public duty by failing to comply with the CEQA and the Delta

Reform Act. Many persons, such as individual property owners throughout the Delta,

water sports enthusiasts, and others who use the Delta’s waterways and are beneficially

interested in this action would find it difficult to vindicate their own rights. STCDA has

demonstrated a long-term commitment to the health of the Delta and the rights asserted

herein.

21. STCDA and its members have also suffered procedural injury within the

meaning of CEQA and have been and will continue to be directly, indirectly,

substantially, and irreparably harmed by the Council’s failure to provide an adequate and

stable definition of the project, failure to provide an adequate Notice of Preparation, and

failure to provide a concrete and specific plan upon which the public could comment.

22. The Delta Plan as proposed will have a significant negative impact on the

Bay-Delta’s aquatic environment, will significantly and negatively impact the Delta as

place, will significantly and negatively impact agriculture in the Delta, will harm the

livelihood of STCDA members, and will significantly increase exports of water from the

Delta.

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23. The claims asserted by Petitioner and relief requested are broad: Petitioner

seeks to have the Delta Plan, proposed Regulations, and PEIR set aside and remanded to

the Council with instructions to conform the Plan and PEIR to law. Because of the broad

nature of the claims and relief requested, participation by individual members of STCDA

is not required.

24. STCDA participated extensively in the Council’s administrative process,

submitting written comments and testifying at public Council meetings. STCDA was

represented in front of the Council by its attorney and numerous individual members also

spoke at public Council meetings and noticed public hearings.

25. STCDA and its members are directly, adversely, and irreparably affected

and will continue to suffer ongoing harm by the Delta Plan and associated actions, and by

the failure of the Council to comply with CEQA, the Delta Reform Act, and other

provisions of law.

26. Petitioner has no adequate remedy at law to redress the extensive, actual,

concrete, specific, imminent and irreparable environmental harm caused by the Council’s

actions.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

27. Petitioner participated in the administrative process, submitting written

comments, attending and commenting at public Council meetings, and testifying at the

Council’s noticed public hearings. Petitioners raised all the claims raised in this Petition

and all those claims fairly included therein, in their comments to the Council, or those

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claims were raised by others to the Council in the course of administrative proceedings

prior to the Council’s approval of the Delta Plan, adoption of the proposed Regulations,

and certification of the PEIR. Petitioner submitted requests for revisions to the Plan and

Regulations in the form of proposed changes in language to the Plan and Regulations to

the Council and argued for Petitioner’s proposed language at public Council meetings

prior to the Council’s final actions.

28. There is no further recourse available for administrative appeal or

rehearing before the Council or any other state administrative body.

PUBLIC BENEFIT AND ATTORNEY FEES

29. Petitioner seeks enforcement of an important right affecting the public

interest. Petitioners will confer a substantial benefit to the residents of the state of

California generally as well as the residents of the Bay-Delta region. Petitioner will

therefore seek an award of reasonable attorneys’ fees pursuant to section 1021.5 of the

Code of Civil Procedure.

GENERAL ALLEGATIONS

The Council Has Abdicated Its Responsibility To Oversee Conveyance In General And The BDCP In Particular

30. The legislature did not intend to create a passive and tepid

agency; rather by “enacting this division, it is the intent of the Legislature to

provide for the sustainable management of the Sacramento-San Joaquin

Delta ecosystem [and to] establish a governance structure that will direct

efforts across state agencies.” Cal. Water Code § 85001(c).

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31. The legislature’s charge regarding the content of the Delta Plan was

specific and included improving the state’s water conveyance system. The Council shall

“develop, adopt, and commence implementation of the Delta Plan [in a way] that furthers

the coequal goals.” Cal. Water Code § 85300(a). The coequal goals are “providing a

more reliable water supply for California and protecting, restoring, and enhancing the

Delta ecosystem.” Cal. Water Code § 85054. The legislature found that “achiev[ing]

[certain] objectives [is] inherent in the coequal goals for management of the Delta.” Cal

Water Code § 85020. One of the inherent objectives is to “[i]mprove the water

conveyance system and expand statewide water storage.” Cal. Water Code § 85020(f).

32. However, despite the legislature’s direct charge to the Council to

“commence implementation,” of the Delta Plan, Cal. Water Code § 85300(a), the specific

requirement that the Delta Plan be the “comprehensive, long-term management plan for

the Delta,” Cal. Water Code § 85059, the Council’s responsibility to “establish and

oversee a committee of agencies responsible for implementing the Delta Plan,” Cal. Water

Code § 85204, and the explicit charge to “further[] the coequal goal,” Cal. Water Code §

85300(a), of providing a “more reliable water supply,” Cal. Water Code § 85054, with the

inherent objective to “[i]mprove the water conveyance system and expand statewide

storage,” Cal. Water Code § 85020(f), the Council has abdicated its responsibility to

address California’s water conveyance system. It has taken the remarkable position that

conveyance improvements are somehow outside the scope of its mission. In the Council’s

view, its only authority with regard to water conveyance is “the authority to opine

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generally about improving Delta conveyance as it may relate to the rest of the Delta Plan

and the coequal goals.” DPEIR at 23–25.

33. Because of its timid view of its own authority with regard to conveyance,

the Council has decided that other “agencies are in the best position to complete the

planning process, including defining acceptable ranges of exports and through-Delta

Flows ... . ” PEIR at 3-15. Rather than answer the direct, explicit, and mandatory call of

the legislature to improve the state’s water conveyance system, the Council paints itself as

an innocent bystander when it comes to addressing the water infrastructure needs of the

state. “State and federal agencies are exploring options to reconfigure the manner in which

the Delta is used to convey water ... . At this time, the Delta Plan does not make

recommendations regarding Delta conveyance.” Delta Plan at 9.

34. The Council’s statement that other agencies are exploring options to

reconfigure the state’s water conveyance system refers (opaquely) to the inaptly named

Bay Delta Conservation Plan (“BDCP”). The BDCP is being developed by the California

Department of Water Resources (DWR) along with other state, local, and federal

agencies. The current administrative draft BDCP calls for the construction of three

intakes feeding twin forty foot diameter tunnels with a capacity to divert up to 9,000 cubic

feet (67,000 gallons) per second from the Sacramento River at a point near the town of

Hood, a few miles south of Sacramento. Id. The entire flow of the Sacramento River at

this point during the summer months is approximately 16,000 cubic feet per second,

meaning that the currently proposed project is capable of siphoning off over half the flow

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of the river. The tunnels are capable of carrying up to 15,000 cubic feet per second and the

project proponents intend to divert that much by simply adding additional intakes at the

first opportunity.

35. Despite the Tunnels’ massive impact on the Bay-Delta ecosystem and

strategic position at the very heart of the Council’s mission to address conveyance and

storage “the PEIR does not evaluate the potential environmental consequences” of

conveyance options. PEIR at 3-15.The Council’s justification for not evaluating the

environmental consequences of conveyance options rests on its assertions that the “BDCP

is a separate and distinct program from the Delta Plan,” DPEIR at 23–28, “is an

independent state/federal project,” PEIR at 3-16, and “could be approved and

implemented whether or not the Delta Plan is approved.” PEIR at 3-16.

36. The Council’s past justifications for not considering the environmental

consequences of conveyance options have included statements that “[i]t is unclear where

these facilities would be located,” DPEIR at 3-3, the “precise magnitude and extent of

project specific impacts on water resources would depend on the type of action or project

being evaluated, its specific location, its total size, and a variety of project-and-site-

specific factors that are undefined at the time of preparation of this program-level study,”

DPEIR at 3-76, and “[a]t this time, the specific details of BDCP have not been defined,

and because the BDCP is a voluntary program, there is no mandate to complete the BDCP

within a specific schedule or with specific features or operations.” DPEIR at 23–28.

37. Contrary to the Council’s protestations, the BDCP is a reasonably

foreseeable integral part of the Delta Plan. The BDCP “shall be considered for inclusion in

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the Delta Plan,” Cal Water Code § 85320, and if specified statutory criteria are met, the

Council “shall incorporate the BDCP into the Delta Plan.” Cal. Water Code § 85320(e).

In order to be eligible for public funding the BDCP must first be incorporated into the

Delta Plan. Cal. Water Code § 85320(b).

38. And, also contrary to the Council’s protestations, the BDCP includes a

specific, discrete, water conveyance project designed to convey water through twin

tunnels each forty feet in diameter from a new point of diversion on the Sacramento River

near Hood to the existing pumping stations approximately 35 miles to the south near

Tracy. The existing pumping stations currently draw water from the south Delta and send

it on its way through the California Aqueduct and other canals to points hundreds of miles

south. In the current configuration, before reaching the pumps water must now flow

through the Delta’s myriad sloughs and channels, providing critical nourishment for the

flora and fauna of the Delta. The net effect of the BDCP will be to take water out of the

Sacramento River upstream of the Delta’s many channels and convey it directly to the

pumps—depriving the Delta of crucial fresh water needed to maintain the ecosystem. At

the time the Delta Plan and PEIR were finalized by the Council not only was the

conceptual scheme for the tunnels well developed but detailed engineering drawings were

also well under preparation. Plans are complete enough to pinpoint which riverside

farmhouses will be condemned to make way for the tunnels’ intakes.

39. The different roles of project specific environmental impact reports and

programmatic environmental impact reports are well defined under CEQA. A project

specific environmental impact report / environmental impact statement is being prepared

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for the BDCP by state and federal agencies pursuant to CEQA and NEPA. The Delta Plan

PEIR, on the other hand, is a programmatic environmental impact report that is legally

required to address the reasonably foreseeable environmental impacts of implementing the

Delta Plan, which entails a much broader program, the “comprehensive, long-term

management plan for the Delta” Cal. Water Code § 85059.

40. A programmatic environmental impact report should provide a “more

exhaustive consideration of effects and alternatives than in an EIR on an individual

action,” ensure “consideration of cumulative impacts” and “consider broad policy

alternatives and program wide mitigation measures at an early time when the agency has

greater flexibility to deal with basic problems and cumulative impacts.” 14 Cal. Code Reg.

§ 15168(b).

41. The Delta Plan PEIR relegates the BDCP and conveyance options in

general to the cumulative impacts section of the PEIR. See PEIR sections 22 and 23.

However, despite statutory language mandating incorporation of the BDCP into the Delta

Plan and statutory language mandating that the Delta Plan further the objective of

improving California’s water conveyance system, the Council does not consider

conveyance options in general nor does it consider the BDCP in particular to be a part of

the Delta Plan project. Therefore the PEIR fails to consider broad policy alternatives to the

BDCP and fails to consider program wide mitigation measures in direct violation 14 Cal.

Code Reg. § 15168(b).

42. What little analysis of the BDCP and other potential water conveyance

projects is provided in the cumulative impacts section is expressed in terms of vague

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generalities and limited to a few sentences. See RDPEIR at 22-1, 22-3, and 22-4. The

PEIR fails to include any programmatic impact analysis and woefully inadequate

cumulative effects analysis.

43. Because the Council failed to address conveyance in the Delta Plan and

failed to analyze the environmental impacts of and alternatives to conveyance options on a

programmatic level in the PEIR it is incapable of discharging its statutory duty to consider

incorporation of the BDCP into the Delta Plan.

44. The legislature directed that the Council’s consider, in a addition

to considering generally how it advances the coequal goals, a set of statutorily

specified factors in judging the BDCP’s fitness for inclusion in the Delta Plan.

The Council has interpreted this charge as relegating its role to that of a

“weak referee” when it comes to the BDCP. With regard to the BDCP, it sees

itself as an agency of diminished capacity that will have no choice but to

rubber stamp the BDCP (whatever policy choices the BDCP might make). It

has justified its failure to include consideration of conveyance options in the

Delta Plan and failure to analyze the impacts of and alternatives to

conveyance options in the PEIR because its self-imposed rubber stamp role

would make it “wasteful now to include in the Delta Plan regulatory policies

prescribing/limiting conveyance.” Delta Plan, Appendix G, p. G-1.

45. The net effect of the Council’s “my BDCP, right or wrong”

approach is to eviscerate its own mandate to mange the Delta. Casual, but

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public and record comments of Council staff at the Council’s public meetings

well-capture the magnitude of the Council’s failures. One staff person

remarked to the effect that, we are preparing the Delta Plan for the BDCP to

“dock up” and then we will see “what’s left of the Plan.”

The Council Has Abdicated Its Responsibility To Oversee Gates Projects In General And The Two-Gates Project In Particular

46. The Council’s diminished capacity defense, however, is belied by

the similar position it has taken with regard to another conveyance

improvement project: the also inaptly named Two-Gates Fish Protection

Demonstration Project. The Two-Gates project is in reality a plan to export

more water by disrupting the natural migration patterns of the endangered

Delta Smelt in order to keep it away from the pumps—and thereby avoid

pumping restrictions designed to protect the smelt from being sucked up and

mutilated by the pumps. Other than the broadly mandated coequal goals,

there are no statutorily mandated factors with regard to the Council’s

judgment on Two-Gates. But the Council has ducked its responsibility for

Two-Gates, this time employing a heads-I-win-tails-you-lose strategy to avoid

its responsibility to take account of Two-Gates (and numerous other gates

projects) in the Delta Plan and PEIR.

47. The Council first took the position that Two-Gates is among the

projects it “does not contemplate ... as covered projects and makes no

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recommendations regarding them.” DPEIR at 22-2. When Petitioner pointed

out in written comments that Two-Gates meets the definition of a covered

action subject to the Council’s jurisdiction pursuant to Water Code section

85057.5, the Council did not dispute that Two-Gates meets the definition of a

covered project. Instead, the Council responded that Two-Gates had been

relegated to the cumulative effects section of the PEIR “because the project

has not been approved” and evaluations by other agencies are continuing.

Response to Comments ) OR111-24.

48. But the point of the Delta Plan is to be the comprehensive long-

term management plan with which individual projects proposed by public and

private entities are supposed to be consistent. The Delta Plan is supposed to

guide the Delta into a future of better water quality, recovered ecosystems,

and smarter water conveyance. The Council’s response is essentially that

individual projects such as Two-Gates are in the works and the proponents

haven’t completed their processes yet so we won’t provide any guidance on the

entire area of that type of project—no matter how crucial that area is to the

Council’s mission and how clear the legislature’s command to address the

area.

49. There are several currently operating gates projects in the Delta,

which manipulate and alter flow patterns within the Delta, including the

Delta Cross-Channel Gates in Walnut Grove, and removable rock barriers on

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other sloughs. Numerous gates projects are under consideration by various

agencies. The gates projects are highly controversial and the science

surrounding gates projects is hotly disputed. Implementation of some or all of

these gates projects will dramatically alter the Delta, some argue for the

better while others insist they would cause irreparable harm. An essential

purpose of the gates projects is to improve through-Delta conveyance to the

export pumps. Yet the Council closes its eyes to the gates issue, expresses no

opinion on gates, and leaves it to other agencies to address gates on a

piecemeal basis.

50. The Council’s approach to Two-Gates, and the gates issue in

general, is emblematic of its hands-off-let-others-lead interpretation of its

mandate.

The Council Has Abdicated Its Responsibility To Consider Broad Policy Alternatives To “Big Conveyance”

51. It is generally agreed that re-operation and conjunctive use are

among the most promising strategies for addressing California’s water supply

and the Bay-Delta ecosystem’s problems. Re-operation refers to operating

existing water infrastructure in a different way in order to time water

diversion and delivery to produce more water for beneficial use and at the

same time cause less environmental impact. Conjunctive use refers to joining

the state’s surface and groundwater supplies into one system so that water

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can be drawn from one or the other when conditions are most favorable and

over-depleting either one can be avoided. Expanding re-operation and

conjunctive use are official state policy. The Delta Plan itself estimates that

approximately two million acre feet per year of increased supply are available

through conjunctive management and groundwater storage alone. Delta Plan

at 99, Figure 3-47. Yet the Delta Plan does not consider a re-operation and

conjunctive use strategy as a “broad policy alternative” to the BDCP’s Big

Conveyance concept. The Delta Plan contains no policies for conjunctive use,

groundwater management, or re-operation. Delta Plan at 109–116. The Plan’s

recommendations, which do not have the force of law, say little more than

conjunctive use and water transfers are good ideas that should be studied.

Delta Plan WR R14, p. 114.

52. With regard to the legislature’s mandate to “expand statewide

storage” in general the Council’s attention has lapsed. The Fifth Staff Draft

Delta Plan, issued in August of 2011, contained an extensive discussion of

DWR’s Surface Storage Investigation, and pinned great hope on new storage

coming online as a result of this program. See Fifth Staff Draft Delta Plan WR

R6, p. 90. Petitioner pointed out in written comments dated February 2, 2012,

that this program was largely defunct. The program consisted of five studies

of storage options. Three of the five studies had been abandoned by DWR

years before the Fifth Staff Draft was released. See Save the California Delta

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Alliance Comments on Fifth Staff Draft Delta Plan and PEIR, February 2,

2012, OR111 at 13–14. The Final Delta Plan omits discussion of the Surface

Storage Investigation, but the Plan, dated May 2013, still recommends

completing the Investigation “by December 31, 2012.” Delta Plan, WR R13, p.

114. Little else is said in the Plan about expanding storage.

53. Petitioner requested that the Council include a meaningful re-

operation and conjunctive use strategy in written comments dated February

2, 2012, and again on January 14, 2013. In addition to providing written

comments, Petitioner attempted to engage Council members at the Council’s

public meetings. The Council’s Chair, Hon. Philip Isenberg, in a public

exchange with the undersigned, closed the door on any consideration of a re-

operation and conjunctive use strategy in the Delta Plan as a broad policy

alternative to Big Conveyance.

54. The Delta Plan acknowledges that at times of peak water

abundance, when diversion would present the least environmental harm, the

export pumps are shut down and the canals lay dry because reservoirs are full

and there is no place to store the water. Delta Plan at 93. The record before

the Council includes numerous scientific studies that show that depleted

groundwater basins throughout the state prevent feasible, cost-effective

opportunities to increase statewide storage capacity. Regional groundwater

recharge projects are underway on a limited scale in several areas of the state.

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Petitioner, in written and oral comments, suggested that the Council

undertake an analysis to identify the opportunity for “new water” that could

be harvested at times of abundance when the pumps are shut down for lack of

storage. Petitioner suggested that the Council consider the feasibility of

numerous small-scale conveyance infrastructure projects that would connect

the existing statewide network of canals to new groundwater recharge

stations.

55. Cost estimates for construction of the BDCP’s Big Conveyance

twin tunnels range from 12 to 20 billion dollars. Construction of the tunnels

will cause massive disruption of life in the Delta. The stretch of the

Sacramento River and adjacent farmland between Clarksburg and Walnut

Grove will be transformed from a peaceful boating and farming landscape into

a vast industrial complex supporting tunnel infrastructure. Excavation of the

tunnels will produce over 17,000,000 cubic yards of “tunnel muck,” enough to

make a pile the size of a football field and almost as tall as Mt. Shasta. The

muck will be deposited in dumps throughout the Delta region, obliterating

fertile, productive farmland.

56. Petitioner suggested that the Council consider, as a broad policy

alternative to Big Conveyance, that the billions of dollars involved in tunnel

construction would be better spent on a series of smaller groundwater

recharge projects that would be much less locally disruptive, spare Delta

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communities from annihilation, and would actually achieve the goals of

providing a more reliable water supply to the state, restoring the Bay-Delta

ecosystem, and expanding statewide storage capacity as mandated by the

legislature.

57. The Council’ failure to give any meaningful consideration to a re-

operation and conjunctive use strategy or to even focus its attention on

expanding storage as a viable alternative to Big Conveyance violates the

Delta Reform Act and CEQA.

FIRST CAUSE OF ACTION

The Delta Plan PEIR Violates CEQA

58. Petitioner hereby incorporates by reference each and every allegation set

forth above, inclusive.

FALSE, MISLEADING, AND INADEQUATE DESCRIPTION OF THE PROJECT

59. Without limiting the scope of the defects Petitioner alleges, specific

examples follow of how the project description in the PEIR is inadequate, false, and

misleading.

60. The description of the Revised Project selected by the Council is false and

misleading because it does not disclose or analyze the fact that the Revised Project would

lead to substantial increases in the amount of water exported from the Delta with attendant

significant adverse environmental impacts on the Bay-Delta ecosystem. The Revised

Project endorses and adopts the BDCP as a conveyance improvement. Delta Plan WR

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R12, p. 114. The BDCP vastly increases the capacity to export water from the Delta by

adding 15,000 cubic feet per second to the amount that can currently be diverted and

exported.

61. The BDCP’s twin tunnels will divert water in addition to the water

currently exported from the existing diversion points in the south Delta, which will remain

operational. The motivation for the new point of diversion far upstream is to avoid current

restrictions imposed on pumping due to the presence at some times of the endangered

Delta Smelt in the proximity of the current diversion points in the south Delta. Because

the new diversion points are located in an area where the Smelt are absent, pumping will

be able to continue non-stop at the upstream diversion point. When the Smelt are not

present at the south Delta points of diversion, pumping will occur at both the south Delta

and upstream diversion points. The PEIR does not disclose or analyze the impacts of

dramatically increased water exports.

62. The description and analysis of environmental impacts of the Revised

Project and the project alternatives is misleading because it does not clearly or adequately

define the baseline against which the impacts are measured. Instead, the PEIR is set up as

a comparison between the Revised project and the various alternatives rather than a

comparison of each alternative to existing or properly formulated projections for baseline

conditions. For example, “an alternative that could ‘export more water from the Delta’

would do so as compared to the Revised Project, not as compared to existing water

exports.” RDPEIR at p. ES 4.

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63. The PEIR purports to also compare the Revised Project and each

alternative to existing conditions, however the structural defect of setting the document up

as a comparison of impacts between alternatives is designed to disguise the actual impact

of the project on the environment.

FAILURE TO ADEQUATELY DEFINE BASELINE CONDITIONS


examples follow of how the PEIR fails to define baseline conditions .

65. The PEIR fails to take account of current and imminent future baseline

conditions with regard to water quality, species viability, salinity, habitat degradation, and

other critical factors.

FAILURE TO ADEQUATELY DEFINE ALTERNATIVES AND FAILURE TO CONSIDER BROAD POLICY ALTERNATIVES AND PROGRAM WIDE MITIGATION MEASURES


examples follow of how the PEIR fails to adequately define alternatives and fails to

consider broad policy alternatives and program wide mitigation measures.

67. The selected project and project alternatives are summarized in the

RDPEIR at pages ES-4–ES-8. The fundamental problem that the Delta Plan is supposed to

solve is that the way water is exported from the Delta is destroying the ecosystem and at

the same time, because there is no settled expectation of how much water may be

exported, the water delivery system is deemed unreliable. The legislature’s charge to the

Council was to fix these two problems, which are two sides of the same coin.

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68. Yet none of the project’s alternatives describe how the current water export

system will be modified. Nor do they describe how various approaches to modifying the

current water export system will (or will not) benefit ecosystem recovery. The Proposed

Project Alternative is described as “exporting similar amounts of water” as are now

exported. Alternatives 1A, 1B are described as exporting more water and Alternative 2 is

described as exporting less water. None of these alternatives address in a meaningful way

the legislatures command to “improve the water conveyance system and expand statewide

water storage.” Cal Water Code § 85020. “Export more water” does not describe an

improvement to the state’s water conveyance system and the alternatives are described in

terms so vague and amorphous as to deprive the public of a meaningful understanding as

to what the Council has in mind for the future of the Delta.

69. By way of example, an adequately defined set of alternatives might include

something like the following:

70. Re-operation and conjunctive use alternative—no new point of

diversion. The Council would first identify the amount of “new water” available at times

of abundance if the existing points of diversion could be operated at times when they are

now shut down because no storage is available. Such an analysis could be accomplished

by examining and correlating existing data. Next the Council would identify opportunities

for statewide groundwater recharge and the general feasibility and cost of connecting the

existing conveyance system to new groundwater recharge stations. Again, this

information can be obtained by examining and correlating numerous existing studies that

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have been done on this subject--many of them cited in the Delta Plan’s bibliography and

thereby included in the administrative record. Based on this information a reasoned

analysis of improvements to water system reliability and ecosystem benefit could be

accomplished. This alternative would be consistent with the Council’s legislative

mandate to improve the water conveyance system and expand statewide storage. It would

also present a broad policy alternative to Big Conveyance.

71. The Council has at its disposal the Delta Independent Science Board,

which is composed of distinguished scientists in the several fields related to the Council’s

mission. It also has on its own staff the Delta Lead Scientist, and is free to provide

additional consultants and staff to support the Lead Scientist. The legislature created

these positions in order to provide the Council with good, relevant data to make concrete

plans—instead it has chosen, for the most part, to engage in vague generalities.

FAILURE TO ANALYZE SECONDARY EFFECTS INCLUDING GROWTH INDUCING IMPACTS


examples follow of how the PEIR fails to analyze secondary effects follow.

73. The Revised Project will substantially induce growth in areas that receive

exported water because water availability is the most significant factor limiting growth

throughout most of California. With abundant additional Delta water available courtesy of

the Delta Plan, development of housing, agriculture, industry, and commercial activity of

all kinds will follow. A program EIR should “focus on the secondary effects that can be

expected to follow from adoption” of the plan. 14 Cal. Code Regs. § 15146. Petitioner

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pointed out that growth inducing impacts were overlooked entirely in the DPEIR. OR111-

22. The Council’s response to the comment was that growth inducing impacts of

increased water exports were “being evaluated by the Department of Water Resources as

the CEQA lead agency” for the BDCP. OR111-22. The RDPEIR now contains less than a

page of analysis of the growth inducing impacts of increased water exports and speaks

only by way of the vague generality that more water might mean more growth. RDPEIR §

24.1.1, p. 24-2. The analysis is conclusory, unsupported, un-quantified, and inadequate.

Rather than focus on secondary effects, which is the function of a program level EIR, the

Council has punted to the BDCP to analyze secondary effects.

FAILURE TO DESCRIBE AND EVALUATE SIGNIFICANT IMPACTS


examples follow of how the PEIR fails to describe and evaluate significant impacts.

75. The PEIR fails to adequately disclose or analyze the project’s impacts on

water quality, the character of the Delta-as-place, water supply (particularly water supply

for in-Delta users), agricultural resources, biological resources, land uses, public services,

air quality, aesthetics, greenhouse gas / climate change, and cumulative agricultural

resources.

FAILURE TO DESCRIBE AND EVALUATE REASONABLE AND FEASIBLE MITIGATION MEASURES THAT COULD ELIMINATE OR SUBSTANTIALLY LESSEN SIGNIFICANT ENVIRONMENTAL IMPACTS OF THE PROJECT


examples follow of how the PEIR fails to describe and evaluate significant impacts. The

PEIR fails to evaluate mitigation measures to offset the projects impacts on water quality,

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the character of the Delta-as-place, water supply (particularly water supply for in-Delta

users), agricultural resources, biological resources, land uses, public services, air quality,

aesthetics, greenhouse gas / climate change, and cumulative agricultural resources.

UNLAWFUL SEGMENTATION AND DEFERRAL OF ENVIRONMENTAL REVIEW (PIECEMEALING)


examples follow of how the PEIR fails to describe and evaluate significant impacts.

78. The PEIR fails to analyze the significant and unavoidable negative impacts

of new conveyance facilities, including the BDCP.

79. The BDCP is a plan to build the twin tunnels along with an associated

Habitat Conservation Plan. The BDCP is cast by the Legislature for review by the

Council and incorporation into the Delta Plan. Cal. Water Code § 85320. Without

approval by the Council and incorporation into the Delta Plan, the BDCP is not eligible

for state funding. Cal. Water Code § 85320(b). Therefore incorporation into the Delta

Plan is a necessary step in the approval and ultimate construction of the BDCP. Adoption

of the Delta Plan itself is also a necessary step for approval of the BDCP as failure to

adopt the Delta Plan would mean the BDCP could not be incorporated into it, making

construction of the project impossible.

80. Where an early approval is a “necessary step” in the ultimate approval of a

project then the environmental impacts of that project are a reasonably foreseeable

consequence of the early approval and an environmental analysis of the ultimate project

must be undertaken. Fullerton Joint Union High School Dist. v. State Bd. of Education,

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32 Cal.3d 779, 794 (1982), disapproved on other grounds by Board of Supervisors v.

Local Agency Formation Com., 3 Cal. 4th 903, 918 (1992). However, the PEIR fails to

undertake a program level analysis of the BDCP. Rather the PEIR concludes that the

“BDCP is a separate and distinct program from the Delta Pan.” PEIR at 23-28. This

conclusion is inconsistent with governing law.

81. As it stands, the Delta Plan is little more than a framework for approval and

construction of the BDCP. The Council’s most significant action is likely to be approving

incorporation of the BDCP into the Delta Plan.

82. The PEIR justifies failure to analyze the specifics of the BDCP (or any

water conveyance facility) with statements such as the following with respect to new

conveyance facilities: “It is unclear where these facilities would be located;” PEIR at 3-3,

and the “precise magnitude and extent of project-specific impacts on water resources

would depend on the type of action or project being evaluated, its specific location, its

total size, and a variety of project-and site-specific factors that are undefined at the time of

preparation of this program-level study;” PEIR at 3-76, “At this time, the specific details

of BDCP have not been defined, and because the BDCP is a voluntary program, there is

no mandate to complete the BDCP within a specific schedule or with specific features or

operations.” PEIR at 23-28.

83. These statements are not accurate. Specific information on the extent, type

of project, location, size, and range of water exports is available with regard to the BDCP

at the time of preparation of the PEIR. As to the “voluntary nature” of the program. The

BDCP is the highest priority with regard to the Delta of DWR, The United States Fish and

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Wildlife Service, The United States National Marine Fisheries Service, The United States

Bureau of Reclamation, and consortium of water exporters who will benefit from the

tunnels. USFWS and NMFS have taken the unusual step of becoming project proponents

placing themselves in the role of lead agencies rather than the normal Cooperating Agency

role for permitting agencies under NEPA. The fact that it may be in some sense

“voluntary” is irrelevant. It is more than reasonably foreseeable. It is a virtual certainty

that the BDCP will come before the Council in the near term. Put another way, if

adoption of the BDCP isn’t a reasonably foreseeable result of adoption of the Delta Plan,

then no future project could every be considered reasonably foreseeable under any

circumstances and CEQA’s requirement for consideration of reasonably foreseeable

impacts would be rendered a nullity.

84. Construction of the BDCP is a reasonably foreseeable result of adoption of

the Delta Plan, adoption of the Delta Plan is a necessary step in the approval and

construction of the canal, and the Council is well apprised of the specifics of the BDCP

project which it will shortly be called upon to approve. The description and analysis of

the BDCP in the PEIR should therefore be concrete and specific. See 14 Cal. Code. Regs.

§ 15146 (providing that the degree of specificity in an EIR should correspond to the

degree of specificity with which the underlying activity is known). As it stands, the PEIR

treats water exports in only the vaguest and most general terms and addresses improved

conveyance facilities as a generality. There is no justification for this lack of specificity in

the face of information available to the Council.

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85. An “EIR must include detail sufficient to enable those who did not

participate in its preparation to understand and to consider meaningfully the issues raised

by the proposed project.” Laurel Heights Improvement Ass’n, 47 Cal. 3d 376, 405 (1988).

The PEIR’s attempt to relegate the BDCP to the cumulative effects section is not

consistent with Laurel Heights. Although we have identified the BDCP and ferreted out

its scope and direction by reference to the BDCP website, “reading between the lines” of

the Delta Plan, and consulting the Delta Plan PEIR cumulative effects section, a member

of the public coming to the PEIR and taking it at face value would never know that the

Delta Plan is in effect a well developed proposal to build a multi-billion tunnel project that

will radically alter the hydrology of the Delta.

86. The Council is aware of “Red Flag” comments by fishery agencies

indicating that the BDCP will cause extinction of Salmon in the Sacramento River. Yet

the PEIR takes no account (and does not even acknowledge the existence) of this

reasonably foreseeable effect of approval of the Delta Plan

87. The BDCP documents are not much better. The tunnels are disguised in

the BDCP as a “conservation measure” rather than a piece of water supply infrastructure.

Even a persistent member of the public who would take the trouble to consult BDCP

documentation in addition to the Delta Plan PEIR, would be hard pressed to understand

“the issues raised by the proposed project.”

88. The “EIR process protects not only the environment but also informed self-

government.” Laurel Heights Improvement Assn. v. Regents of University of California,

47 Cal.3d 376, 392 (1988). Only “through an accurate view of the project may the public

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and interested parties and public agencies balance the proposed project’s benefits against

its environmental cost, consider appropriate mitigation measures [and] properly weigh

other alternatives.” The PEIR is thus fatally deficient in that it fails to inform the public

and the decision makers of what is actually at stake here.

FAILURE TO ADEQUATELY INVESTIGATE DELTA CONDITIONS AND SCIENTIFIC IMPLICATIONS OF THE PROJECT


examples follow of how the Council failed to conduct adequate scientific investigation as

the basis for the direction and conclusions of the PEIR. CEQA Guideline § 15125 requires

that an agency conduct adequate investigation in the process of promulgating an EIR.

90. The amount and nature of investigation required will of course vary

depending on the nature, complexity, and potential for adverse effects. Here, the

legislature charged the council with managing the most important estuary on the west

coast of north America and declared that the estuary was in crisis. The legislature

specifically mandated that the Council use best available science. The legislature put at

the Council’s disposal the Delta Independent Science Board and Delta Lead Scientist.

The bar here for what is an adequate scientific investigation was wisely set very high by

the legislature.

91. The Council employed little or no science in formulating the PEIR or

project, did not take advantage of the Independent Science Board, did not use any flow

criteria in formulating the plan (despite legislative mandate to the contrary), did not

conduct any data analysis to determine the best methods (or any methods) for re-operation

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of the water conveyance system, did not apply any scientific analysis to adaptive

management, did not apply any scientific analysis to monitoring, and did not apply any

scientific analysis to conjunctive use strategies.

92. Instead of promulgating a science based EIR commensurate with the nature

of the challenge before it, the Council engaged in paper-pushing and check-a-box CEQA

documentation.

FAILURE TO RESPOND TO COMMENTS


examples follow of how the Council failed to respond to comments.

94. The Council’s failure to respond to comments in general, and particular

failure to respond to comments of Petitioner were flagrant. Rather than respond

forthrightly to Petitioner’s valid and constructive criticism, the Council publicly ignored

or provided cookie-cutter responses, but at the same time went back and revised the

documents--not to respond to Petitioner’s comments but to obscure or hide the issue

Petitioner had raised. The Council’s response to Petitioner’s growth-inducing impacts at

paragraph 73 above provides an example.

95. Many responses were simply the symbol “n/a.” In other cases the Council

responded “this is a comment on the project, not on the EIR,” even though the comment

pointed out that the Plan was so vague or scientifically flawed that meaningful results

could not be predicted—making environmental analysis impossible. Petitioner explained

that there was necessary overlap between its comments on the Plan and PEIR to no avail.

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SECOND CAUSE OF ACTION

The Delta Plan Conflicts With The Legislative Mandate of the Delta Reform Act and Other Statutes

Cal. Water Code §§ 85000 et seq Cal. Gov. Code § 11342.2

96. Petitioner hereby incorporates by reference each and every allegation set


The Delta Plan Does Not Fulfill The Legislative Mandate To Promulgate A Plan That Is Concrete And Specific Enough So That Foreseeable And Quantifiable Implementation Of Each Of The Legislatively Mandated Goals Will Result.


examples follow of how the Delta Plan fails to conform to statutory requirements.

98. Portions of the Delta Plan respectively alter or amend the Delta Reform

Act and enlarge or impair its scope and are therefore void. See, e.g., San Francisco Fire

Fighters Local 798 v. City and County of San Francisco, 38 Cal.4th 653, 668 (2006)

(holding that “[a]dministrative regulations that alter or amend the statute or enlarge or

impair its scope are void and courts not only may, but it is their obligation to strike down

such regulations”). Review is de novo and the Council is due no deference where the

cause of action alleges that the Plan is inconsistent with legislative authority. Samantha

C. v. State Dept. of Developmental Services, 185 Cal.App.4th 1462, 1482 (2nd Dist.,

2010) (holding that“[i]n deciding whether the regulation conflicts with its legislative

mandate, the court does not defer to the agency's interpretation of the law under which the

regulation issued, but rather exercises its own independent judgment”) (internal quotation

marks and citation omitted); Agricultural Labor Relations Bd. v. Superior Court, 48

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Cal.App.4th 1489, 1510 (5th Dist. 1996) (holding that “[a]dministrative regulations that

violate acts of the Legislature are void and no protestations that they are merely an

exercise of administrative discretion can sanctify them. They must conform to the

legislative will if we are to preserve an orderly system of government”) (internal quotation

marks and citation omitted).

99. The Legislature defined the Council’s duties by making explicit eight

objectives that are inherent in achieving the coequal goals of “providing a more reliable

water supply for California and protecting, restoring, and enhancing the Delta ecosystem”:

(a) Manage the Delta’s water and environmental resources and the water resources of the state over the long term. (b) Protect and enhance the unique cultural, recreational, and agricultural values of the California Delta as an evolving place. (c) Restore the Delta ecosystem, including its fisheries and wildlife, as the heart of a healthy estuary and wetland ecosystem. (d) Promote statewide water conservation, water use efficiency, and sustainable water use. (e) Improve water quality to protect human health and the environment consistent with achieving water quality objectives in the Delta. (f) Improve the water conveyance system and expand statewide water storage. (g) Reduce risks to people, property, and state interests in the Delta by effective emergency preparedness, appropriate land uses, and investments in flood protection. (h) Establish a new governance structure with the authority, responsibility, accountability, scientific support and adequate and secure funding to achieve these objectives.

Cal. Water Code § 85020.

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100. It was the intent of the Legislature that the Council adopt a Delta Plan

definite enough “to achieve these objectives.” Cal. Water Code § 85020(h). The Council

is supposed to be “a governance structure.” Id. The Delta Plan should include “quantified

or otherwise measurable targets.” Cal. Water Code § 85308. The Legislature’s directive

to the Council is for an active and imperative management of the Delta. The verbs

“manage,” “protect,” “restore,” and “establish” indicate that the Council’s function is

governmental and mandatory rather than merely hortatory.

101. The DPEIR candidly acknowledged that the Delta Plan was so vague that

no progress on any of the objectives could be reasonably expected. “The Delta Plan’s

likelihood of nudging already considered projects forward, and the Delta Plan’s degree of

influence on future undefined projects, is unclear.” DPEIR at 2B-2. “How much

influence the Council will have is unclear.” Id. The Council described its function as

constrained to seeking to “influence” other agencies “through limited policy regulation or

through recommendations.” DPEIR at 16-1. Petitioner pointed out that these statements

are inconsistent with the legislature’s mandate. OR111-4. The RDPEIR now contains the

following statement: “This EIR assumes that the Delta Plan will be successful and will

lead to other agencies taking the encouraged actions.” RDPEIR, p. ES-2.

102. However, with limited exceptions, the Plan itself has not been made any

more concrete and does not effectively advance the goals of protecting the cultural,

recreational, and agricultural values of the Delta, restoring the ecosystem, improving

water quality, improving the conveyance system and expanding statewide storage, or

establishing an effective governance structure.

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103. One area that the Council did respond to Petitioner’s comments in a

concrete way (although it did not acknowledge doing so), was promoting statewide water

conservation and attendant reduction in reliance on imported Delta water. It is telling that

those who receive water exported from the Delta have filed suit claiming the Council

exceeded its authority in this regard. Quite the contrary, although the Council made

improvements it did not go far enough to comply with the legislative mandate. The

Council required water importers to put in place water management plans designed to

reduce water used from the Delta, either as a percentage of total water used or in net

terms. Petitioner supports this step. But the Council must go one further: require that

importers show actual compliance with the requirement to reduce Delta water use by a

date certain1.

The Council’s Decision Not To Adopt Policies Or Recommendations Regarding Conveyance Conflicts With The Statutory Mandate To Improve The Water Conveyance System And Restore The Delta Ecosystem



105. The Council is charged with “[i]mproving the water conveyance system ...

.” Cal. Water Code § 85020(f). Operation of the water conveyance system is the most

significant factor causing ecosystem decline. We export too much water at the wrong time

in the wrong way. The environmental harm caused by the way the conveyance system is

currently operated subjects it to periodic court-ordered shut down. It is impossible for the

1 Petitioner believes that the legislature intended the requirement to reduce reliance on the Delta to

apply to those who import water from the Delta but not to in-Delta users. The point of the legislation was to encourage regional self-reliance. The Delta is the regional supply for in-Delta users.

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Council to carry out its mission of “providing a more reliable water supply for California

and protecting , restoring, and enhancing the Delta ecosystem,” Cal Water Code § 85054,

without addressing conveyance. Yet it has deliberately decided not to address conveyance

at all.

106. The Council’s decision not to address conveyance violates the Delta

Reform Act.

The Council’s Decision To Ignore Its Mandate To Expand Statewide Storage Violates The Delta Reform Act



108. The Council’s basic charge is to address California’s water supply

problems and their attendant negative effects on the Bay-Delta ecosystem. The Council

correctly identified the crux of California’s water supply problem to be that the state lacks

the capacity store water that is available at times of abundance:

The statewide water storage capacity is currently inadequate, especially south of the Delta, to facilitate export of water at times of surplus when the only impediment is lack of available storage capacity (DWR 2009). For example, in spring 2011, the south Delta pumps were turned off because real-time urban and agricultural water users’ needs could be met through local water supplies and previously delivered export supplies, and storage opportunities south of the Delta were insufficient to take delivery of available water.

Fifth Staff Draft Delta Plan at 88.

109. Yet the Plan proposes no policies with regulatory effect to address this

problem. Delta Plan at 89. Rather, the Plan pins its hopes on DWR’s Surface Water

Storage investigation. But the Surface Water Storage Investigation had been largely

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abandoned. With regard to this problem, the Delta Plan is so vague and amorphous as to

not be any plan at all. Rather the approach is to call for more study of ways to improve

storage and point to non-existent projects as the hope for the future.

110. The problem of storage will grow more acute with the advance of climate

change. Scientist predict that precipitation in California will shift to more rain and less

snowfall as time goes on. The snow pack acts as a storage reservoir, retaining winter

snows until the spring and early summer. With the snow pack diminished, the storage

problem will become more acute. The Delta Plan does not provide any meaningful

analysis of the snow pack problem.

111. The Council’s attention to storage is inadequate to discharge its statutory

mandate.

The Delta Plan’s Adaptive Management Elements Fail To Fulfill The Statutory Mandate For Hard Science To Guide Decision making In Service Of Recovering The Delta Ecosystem


examples follow of how the Delta Plan fails to conform to pertinent statutory

requirements.

California Water Code Section 85052 provides that : “Adaptive Management” means a framework and flexible decision-making process for ongoing knowledge acquisition, monitoring, and evaluation leading to continuous improvements in management planning and implementation of a project to achieve specified objectives.

Water Code Section 85211 in turn provides in pertinent part that:

The Delta Plan shall include performance measurements that will enable the council to track progress in meeting the objectives of the Delta Plan. The performance measurements shall include, but need not be limited to,

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quantitative or otherwise measurable assessments of the status and trend in all of the following: (a) The health of the Delta’s estuary and wetland ecosystem for supporting viable populations of aquatic and terrestrial species, habitats, and processes, including viable populations of Delta fisheries and other aquatic organisms.

113. The output performance measures specified in the Delta Plan to track

ecosystem restoration and ecosystem health cover barely a quarter of a page. Delta Plan

170–71. The only output performance measure specified to judge the success of habitat

restoration projects is to assess the “acres restored by habitat type, and lessons learned.”

The Delta Plan and BDCP contemplate that 20,000 or more acres of currently productive

agricultural lands will be flooded to provide aquatic habitat, including wetland, tidal

marsh, and shallow water habitat.

114. The science of restoration ecology is relatively new. In general, restoration

ecologists agree that wetlands restoration projects with the best chance of success are

those where the original wetland has been the least disturbed. It is unclear, even in cases

where the original wetland is still somewhat intact, that restoration will provide significant

enhancement of biological values. Wetland restoration projects often fail to achieve

anything more than converting dry land into muddy land. Although knowledge is

improving, scientists often do not know why some projects succeed and others fail.

115. Wetland restoration has become a lucrative business for consulting and

engineering firms and has allowed many development projects to go forward on promises

of creating new wetlands one-for-one, or better, to mitigate for acreage of destroyed

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wetlands. But all of this is built, to a surprising extent, on the unfounded assumption that

with a few well-placed swipes of a backhoe we can match the creative prowess of nature.

116. Many of the Delta islands slated for restoration were reclaimed over a

century ago and have been farmed ever since. The land on the islands has subsided over

the decades and is often twenty feet or more below the surface of adjacent waterways.

Turning these islands in wetlands or shallow water habitat lies in the realm of scientific

experiment. Yet the Delta Plan and BDCP assume and depend for their environmental

conclusions upon an outcome where habitat creation will be wildly successful.

117. The Delta Plan’s adaptive management element does not address the reality

of restoration in the Delta in any meaningful way or provide guidance as to how

restoration should proceed. It falls well short of the best available science that the

legislature mandated should be included.

118. As to water quality, the Delta Plan’s adaptive management approach is to

recommend implementation by other agencies of a regional water quality monitoring

program within five years. Delta Plan 254. But the Delta Plan has endorsed the BDCP and

its massive increase in water exports to be approved by December 2014. The Delta Plan

makes no recommendation as to how adaptive management, including that deferred to the

development of an undefined water quality monitoring program by others, will be used to

adjust or curtail exports through the giant new tunnels. The BDCP itself explicitly rejects

any adjustment of operations in real time in response to any monitoring program—instead

guaranteeing water exporters that exports will not be reduced below levels currently being

established based on theoretical assumptions. In the current state of affairs, even if upon

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start up it was shown through real time monitoring that the tunnels were having a

disastrous effect on Delta ecosystem health, it would take years to reduce export levels if

it could be done at all.

119. The Council protests that it cannot impose any adaptive management

requirements on the BDCP. Petitioner disputes this interpretation of the governing

statutes. But even on the Council’s reading, nothing prevents it from making a

recommendation. The Council “oversee[s] a committee of agencies responsible for

implementing the Delta Plan.” Cal. Water. Code § 85204. That committee includes the

State Water Resources Control Board (“SWRCB”). To Petitioner’s knowledge not even

DWR has disputed that the SWRCB has the authority to impose permit conditions on the

tunnels (which must come before SWRCB for a permit) including adaptive management

conditions.

120. The Council has adopted policies in several areas that it construes as

recommendations when they apply to actors over whom the Council may not have direct

authority. It has made scores of recommendations in areas where it assesses that it does

not have authority to impose a policy or has chosen not to impose legally binding policy.

Yet it has singled out conveyance in general and the BDCP in particular as off limits.

121. The Delta Plan’s failure to provide for adaptive management to address

operation of water export facilities, including the BDCP, is contrary to legislative

mandate.

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The Delta Plan Conflicts With The Express Statutory Mandate To Base The Plan On SWRCB Established Flow Criteria



requirements.

123. Water Code section 88086(c)(1) provides that the SWRCB shall “develop

new flow criteria for the Delta ecosystem necessary to protect public trust resources” Cal.

Water Code § 85086(c)(1). These new flow criteria are necessary “for facilitating the

planning decisions that are required to achieve the objectives of the Delta Plan” and for

“informing the panning decisions for the Delta Plan and the Bay Delta Conservation

Plan.” Cal. Water Code § 85086(c)(1).

124. The SWRCB released its report on Development of Flow Criteria in

August 2010, but the Council ignored the SWRCB document in preparing the Delta Plan

despite the legislature’s explicit command that the flow criteria be used to develop the

project and the legislative finding that using the flow criteria to develop the plan is

“necessary” to protect public trust resources.

125. In forging ahead, the Council has violated both the Delta Reform Act and

the Public Trust Doctrine.

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The Delta Plan Does Not Consider The Statutorily Mandated Flow Criteria Developed by The United Stats Fish and Wildlife Service, the National Marine Fisheries Service And the California Department of Fish and Wildlife



requirements.

127. The legislature mandated that the Council base the Delta Plan on the

Quantifiable Biological Objectives and Flow Criteria for Aquatic and Terrestrial Species

of Concern Dependent on the Delta issued by USFWS, NMFS, and CDFW in November

of 2010. Cal. Water Code § 85084.5. The Council failed to consider the flow criteria,

biological objectives, and other findings recommended in the report.

The Delta Plan Does Not Consider The Statutorily Mandated Economic Sustainability Plan for the Sacramento-San Joaquin Delta.

128. The legislature mandated that the Council consider the Economic

Sustainability Plan issued in January of 2012 in formulating the Delta Plan. Cal. Water

Code §85301 The Council failed to consider the plan.

THIRD CAUSE OF ACTION

Declaratory Relief

129. Petitioner hereby incorporates by reference each and every allegations set


130. An actual controversy has arisen and exists between Petitioner and the

Council, as more fully set forth above, Petitioner contends that the Council’s adoption of

the Delta Plan, certification of the Final Delta Plan PEIR, Statement of Overriding

Considerations, and Findings failed to comply with CEQA, the Delta Reform Act, and

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other applicable laws including but not limited to the Public Trust Doctrine, California

Constitution, and the rulemaking requirements of the Government Code.

131. Petitioner is informed and believes and on that basis alleges that

Respondent Delta Stewardship Council disputes Petitioner’s contentions as described and

alleged herein.

132. Petitioner seeks a judicial determination of the respective rights and duties

with respect to the Council’s compliance with CEQA, the Delta Reform Act, and other

applicable laws.

PREPARATION OF RECORD

133. Petitioner has elected to prepare the administrative record or to pursue an

alternative method of record preparation to Pub. Res. Code § 21167.6(b)(2). A true and

correct copy of the notification of the election to Prepare the Administrative Record is

attached as Exhibit B hereto.

PRAYER FOR RELIEF

WHEREFORE, Petitioner prays for relief as follows:

1. For alternative and preemptory writs of mandate, commanding the Council

to: a) vacate and set aside approval of the Delta Plan and Proposed Regulations; b) vacate

and set aside certification of the Final Delta Plan PEIR; c) prepare a legally adequate EIR

for the project; and d) suspend any and all activity pursuant to the Council’s approval of

the Delta Plan and Regulations that could result in an adverse change or alteration to the

physical environment until the Council has complied with all requirements of CEQA and

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all other applicable state and local laws, policies, ordinances, and regulations as directed

by this Court.

2. For a stay, temporary restraining order, preliminary injunction, and

permanent injunction prohibiting any actions by the Council pursuant to the Council’s

approval of the Delta Plan and Regulations and certification of the PEIR until the Council

has fully complied with all requirements of the Delta Reform Act, CEQA, and all other

applicable laws, polices, and regulations.

3. For a declaration that the Council’s actions approving the Delta Plan and

Proposed Regulations are inconsistent with the Delta Reform Act and other applicable

laws and that the approvals are therefore invalid and have no force and effect.

4. For a declaration that the Council actions certifying the PEIR and

approving the Delta Plan violated CEQA and that the certification and project approval

has no force and effect.

5. For costs of suit.

6. For attorney fees pursuant to the Code of Civil Procedure section 1021.5.

7. For such other and further relief as the Court may deem just and proper.

Dated: June 17, 2013

Law Offices of Michael A. Brodsky

/s/ Michael A. Brodsky By: Michael A. Brodsky Attorney for Petitioner Save the California Delta Alliance

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VERIFICATION

I, Janet McCleery, have read the foregoing Petition for Writ of Mandate and

Complaint and know its contents. I am the President of the Board of Directors of Save the

California Delta Alliance, which is the Petitioner in this action, and am authorized to

make this verification on its behalf, and I make this verification for that reason. I have

read the foregoing document and know its contents. The matters stated in it are true of my

own knowledge except as to those matters that are stated on information and belief, and as

to those matters I believe them to be true.

Executed on June 15, 2013 at Discovery Bay, California.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Janet McCleery

/s/Janet McCleery

EXHIBIT A

EXHIBIT B

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______________________________________________________________________________________ Petitioner Save The California Delta Alliance’s Notice of Election to Prepare Record

MICHAEL A. BRODSKY, SBN 219073 Law Offices of Michael A. Brodsky 201 Esplanade, Upper Suite Capitola, California 95010 Telephone: (831) 469-3514 Fax: (831) 471-9705 Email: [email protected] Attorney for Petitioner/Plaintiff SAVE THE CALIFORNIA DELTA ALLIANCE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

SAVE THE CALIFORNIA DELTA ALLIANCE

Petitioner and Plaintiff,

v.

DELTA STEWARDSHIP COUNCIL, a state public agency, and Does 1 through 100, inclusive,

Respondents and Defendants.

CEQA CASE

Case No.:

NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

(Cal. Pub. Res. Code § 21167.6)

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Petitioner Save the California Delta Alliance’s Notice of Election to Prepare Record

NOTICE OF ELECTION TO PREPARE RECORD

Petitioner Save the California Delta Alliance elects to prepare the record of

proceedings in the above-captioned matter, or alternatively, to pursue an alternative

method of record preparation pursuant to Public Resources Code section 21167.6(b)(2).

Dated June 17, 2013

By:

/s/Michael A. Brodsky Michael A. Brodsky Law Offices of Michael A. Brodsky 201 Esplanade, Upper Suite, Capitola, CA 95010 831-469-3514 Attorney for Petitioner Save the California Delta Alliance

Documents

SUPERIOR COURT OF THE STATE OF CALIFORNIA · the waters of San Francisco Bay and the Pacific Ocean within and adjacent to San Francisco. 15. The Council’s action will likely lead