County of Amador v. El Dorado County Water Agency

No. C027948 (76 Cal. App. 4th 931) (Cal. Ct. App. November 3, 1999)

ELR Digest

The court holds that a county water agency that certified that its environmental impact report (EIR) for a proposed water project calling for increased water use from mountain lakes complied with the California Environmental Quality Act (CEQA) and a county irrigation district that exempted its proposed purchase of a hydroelectric dam from CEQA review violated the Act. The court first holds that certain aspects of the lower court decision, in which it found that the agency's EIR was inadequate and that the dam was not exempt from CEQA requirements, have not become moot due to subsequent actions taken by the county. The county's approval of a general plan that validated the demand for new water supplies was held inadequate by a lower court and must be redrafted. Consequently, a mootness claim is untenable because inadequate analysis in an invalid general plan cannot substitute for the analysis required in the instant case. Similarly, mitigation measures contained in an order by the state water resources control board do not moot any aspects of the case because the board subsequently directed that the order be reconsidered.

The court next holds that the water agency's EIR is fundamentally flawed and cannot pass CEQA muster because its was predicated on a draft general plan. By predicating a project on a draft general plan, without the benefit of a final expression of county policy, there is no guarantee that the inextricably linked issues of water supply and population growth will ever receive the appropriate environmental review. This conclusion, therefore, obviates the need to address issues relating to the adequacy of the impact analysis, mitigation measures, or proposed project alternatives. The court, however, provides guidance to the parties regarding the adequacy of the description of the baseline environment and historic operations.

The court then holds that the Federal Power Act (FPA) does not preempt the environmental groups' CEQA challenges relating to the hydroelectric dam. FPA § 821, the Act's savings clause relating to state laws and water rights, applies only if proprietary rights to water are involved. Here, the transfer of the dam from a utility to the irrigation district is not simply a transfer of ownership; it also proposes a change in water use from nonconsumptive to consumptive. Thus, the project falls squarely within the parameters of FPA § 821. Moreover, this conclusion does not interfere with Federal Energy Regulatory Commission licensing procedures. Therefore, the lower court properly concluded that CEQA required environmental review of the project's proposed consumptive use of water. The court further holds that the groups' challenge to the irrigation district's acquisition of the dam was timely. The district did not approve this project before filing a notice of CEQA exemption. Consequently, the notice of exemption was not valid and the limitations period for challenging the exemption did not run. Last, the court holds that the hydroelectric dam project is not exempt from CEQA review. The change from a utility-owned, nonconsumptive hydroelectric project to one that includes massive consumptive use removes the project from the scope of the existing facilities exemption. Likewise, the ongoing operation exemption is inapplicable. The court, therefore, affirms the judgment of the lower court.

The full text of this opinion is available from ELR (55 pp., ELR Order No. L-139).

Counsel for Plaintiff
Roderick E. Walston, Chief Ass't Attorney General
Attorney General's Office
1300 I St., Ste. 1740, Sacramento CA 95814
(916) 324-5437

Counsel for Defendants
James G. Moose
Remy, Thomas & Moose
455 Capitol Mall, Ste. 210, Sacramento CA 95814
(916) 443-2745

[30 ELR 20224]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]