(2009) 180 Cal.App.4th 210

The Second District Court of Appeal upheld the adequacy of an EIR certified by the Castaic Lake Water Agency analyzing the impacts of transferring 41,000 acre-feet of water to Castaic from the Kern County Water Agency and Wheeler Ridge Maricopa Water Storage District (collectively, “KCWA”).  The court ruled that Castaic was the proper lead agency, and the EIR contained an adequate analysis of the transfer in light of uncertainties regarding the outcome of a separate analysis concerning the operation of the State Water Project, from whence the 41,000 acre-feet derived.

The fate of the allocation of water from the SWP, and of this particular water transfer, has been the subject of much litigation and multiple published opinions.  In 1995, the Central Coast Water Authority prepared and certified an EIR regarding the “Monterey Agreement” – an agreement between the Department of Water Resources (DWR) and 29 water contractors revamping the allocation of water from the SWP.  In 1999, Castaic agreed to purchase 41,000 acre-feet of SWP water from KCWA.  Castaic certified an EIR in connection with this agreement.  Castaic’s EIR “tiered off” the Monterey Agreement EIR.  Castaic’s EIR drew a CEQA lawsuit, which was subsequently appealed.  Meanwhile, the Third District Court of Appeal issued an opinion striking down the Monterey Agreement EIR, reasoning, in part, that the DWR, as operator of the SWP with its state-wide reach, should have been the lead agency for the document, rather than the Central Coast Water Authority, one of the 29 water contractors that purchases SWP water. (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892.)  The Second District thereafter ruled that Castaic’s EIR was defective because it tiered off the defective Monterey Agreement EIR.  (Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373 (Friends of the Santa Clara River).)  In an unpublished decision, the Second District upheld the decision of the trial court, on remand from Friends of the Santa Clara River, to decline to enjoin or otherwise invalidate the transfer, which was left in place.

In 2004, Castaic certified a second EIR concerning the 41,000 acre-feet transfer, this time expressly not tiering from the Monterey Agreement EIR.  The court found that Castaic’s 2004 EIR appropriately traced the history of the Monterey Agreement EIR, related litigation, and ongoing efforts by DWR.  The EIR then analyzed a “worst-case” scenario, consisting of SWP operations under the pre-Monterey Agreement contractual regime.  The court concluded that the 2004 EIR, though imperfect, provided an adequate road-map to Castaic’s analytic route from evidence to decision.   [RMM Partner James G. Moose and Associate Laura M. Harris were co-counsel for Respondent Castaic Lake Water Agency.]