By Holly Tokar and Meredith Nikkel
On November 20, 2020, a coalition of environmental groups filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief and attorney’s fees (Petition) challenging the Del Puerto Water District’s (District) approval of the Del Puerto Canyon Reservoir Project (Project) and the certification of the Project’s Final Environmental Impact Report (Final EIR). Specifically, the Petition alleges that that the District’s approval of the Project and certification of the Project’s Final EIR 1) violated the California Environmental Quality Act (CEQA) by failing to adequately describe, analyze, and mitigate the Project’s potential environmental impacts, and 2) violated Code of Civil Procedure §§ 1085 and 1094.5 by failing to proceed in the manner required by law. [Sierra Club, et al. v. Del Puerto Water District, et al., Stanislaus County Superior Court, No. CV-20-005193.]
Factual Background
The District, in partnership with the San Joaquin River Exchange Contractors Water Authority, has proposed the Del Puerto Canyon Reservoir Project in an effort to increase water storage capacity in California’s Central Valley. Del Puerto Canyon Reservoir Final EIR, Executive Summary (Oct. 2020) at ES-1. The proposed Project is located in Stanislaus County just west of the City of Patterson and south of the Sacramento-San Joaquin Delta. See id. at ES-1-ES-3. The proposed Project involves construction and operation of a reservoir on Del Puerto Creek to provide approximately 82,000 acre-feet of new off-stream storage to the Central Valley Project (CVP). Id. Project components are the reservoir (including the main dam and three saddle dams), conveyance facilities to transport water to and from the Delta-Mendota Canal (including a pipeline and pumping plant), electrical facilities, relocation of Del Puerto Canyon Road, and relocation of existing and proposed utilities that are within the project area. Id.
The District issued a Notice of Preparation of an Environmental Impact Report and Scoping Meeting for the Project on June 26, 2019, and then a Draft EIR on December 12, 2019. Petition at ¶ 26-28. The Final EIR was issued on October 9, 2020—consisting of three volumes and over 1,500 pages—and the District approved the Project on October 21, 2020. Id. at ¶¶ 29, 33.
The Lawsuit
Filed in the Superior Court for the County of Stanislaus by Sierra Club, California Native Plant Society, Center for Biological Diversity, and Friends of the River, the Petition challenges the District’s certification of the Final EIR and approval of the Project under CEQA.
CEQA Analyses
The petitioners’ First Cause of Action for Approval of the Project as Contrary to Requirements of CEQA alleges that the District violated CEQA by failing to adequately describe, analyze, and mitigate the Project’s potential environmental impacts. Id. at ¶ 37. Among other arguments, Petitioners contend that that the “FEIR segments the Project both temporally and geographically, and thereby fails to fully disclose the Project’s environmental impacts” by, for example, failing to discuss Project impacts to downstream terrestrial biological resources and amphibians, and by failing to discuss how the Project’s intended increase in available water supplies will affect pumping in the Delta. Id. at ¶¶ 52, 52c. Petitioners also argue the Final EIR unlawfully defers mitigation measures by, for example, deferring to the future “development of a plan to mitigate the Project’s impacts on cultural resources.” Id. at ¶¶ 68, 68c. Petitioners argue the Final EIR’s alternatives analysis is inadequate because it states the Project objective as constructing “a dam with a capacity of at least 80.000 acre-feet” rather than the “actual goal of increasing the reliability of the District’s water supplies.” Id. at ¶ 74. They also argue the Final EIR fails to meaningfully respond to public comments, such as one comment from the Department of Fish and Wildlife requesting a buffer zone around active hawk nests. Id. at ¶ 89. Further arguments include failure to consult with and obtain comments from the City of Patterson and County of Stanislaus, and failure to recirculate the draft EIR after significant new information arose. (Id. at ¶¶ 81, 94.
Additional Allegations and Relief Sought
Petitioners’ Second Cause of Action for Project Approvals as Contrary to Code of Civil Procedure §§ 1085 and 1094.5 contends the District violated Code of Civil Procedure by failing to proceed in a manner required by law by approving the Project and certifying the EIR notwithstanding CEQA violations. Id. at ¶¶ 102-104. Accordingly, petitioners’ Prayer for Relief includes: 1) alternative and peremptory writs of mandate, declaratory judgment, and permanent injunction, setting aside and enjoining DPWR’s actions in certifying the Project’s EIR and approving the Project, 2) a temporary restraining order, stay order, preliminary injunction, and alternative and peremptory writs of mandate, enjoining and restraining DPWR and its partners from taking any action to implement the Project that could result in any change or alteration to the physical environment pending CEQA compliance, 3) attorney’s fees, 4) costs of suit, and 5) any other relief the court deems just and proper. Petition, Prayer for Relief at ¶¶ 1-5.
Conclusion and Implications
If the Petitioners are successful, the District may be required to prepare a new or amended document in compliance with CEQA or take other remedial actions in order to move forward with the Project. As of December 14, 2020, neither the DPWD nor any real parties in interest have responded to the Petition. A copy of the Petition is available at: https://www.courthousenews.com/wp-content/uploads/2020/11/DelPuertoDam-COMPLAINT.pdf.
