Environmental Defense Fund, Inc. v. Stamm

Civ. A. No. C-75-1419-SAW (N.D. Cal. June 29, 1976)

The court enjoins the Bureau of Reclamation from opening construction bids for the San Felipe Division of the Central Valley irrigation project pending preparation of a supplemental environmental impact statement (EIS). The final — but not draft — EIS for the project discussed the alternative of using an existing canal to convery the water from the Central Valley to four coastal counties. In addition, the final EIS does not discuss the alternative of delaying the project pending a showing that local governments that will receive the water are financially capable of building local distribution facilities. Each of these omissions violates NEPA's requirement that an EIS be a detailed statement that discusses the environmental impact of a proposal and its alternatives. Injunctive relief is properly granted since plaintiffs are likely to succeed on the merits, they will suffer irreparable harm without the injunction, defendants' harm will be comparatively slight, and the public interest will be served by defendants' compliance with NEPA.

Counsel for Plaintiffs
Thomas J. Graff
Walter V. Hays
Jeffrey M. Oderman
Environmental Defense Fund
2728 Durant Ave.
Berkeley CA 94704
(415) 548-8906

Counsel for Defendants
Charles M. O'Connor, Asst. U.S. Attorney
Federal Bldg.
San Francisco CA 94102
(415) 556-1126

[6 ELR 20621]

Weigel, J.:

The court having heretofore on this date signed and filed Findings of Fact and Conclusions of Law, and good cause appearing therefor,

IT IS HEREBY ORDERED that during the pendency of this action defendants, and each of them, their employees and agents, and all persons acting in concert or participating with them, shall be and they are hereby enjoined and restrained from opening bids for construction of any part of the San Felipe Division of the Central Valley Project, from commencing construction thereon, and from executing any contract for sale or delivery of water to the San Felipe Division service area until defendants show on hearing after notice to all parties that the United States Department of the Interior, Bureau of Reclamation, has prepared a supplemental environmental impact statement (supplemental EIS) for the San Felipe Division of the Central Valley Project, a draft of which shall have been circulated for comments in accordance with the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the regulations promulgated by the Council on Environmental Quality thereunder. The supplemental EIS shall provide a detailed analysis of (1) the feasibility of and environmental impacts related to conveyance of San Felipe water through the existing Delta-Mendota Canal, (2) the benefits and environmental impacts of the Project if the Santa Clara Valley Water District (District) does not construct local facilities for the utilization of San Felipe water in Santa Clara County, and (3) the alternative of delaying the commencement [6 ELR 20622] of construction until after the District acquires the financial capability to build said local facilities.

IT IS FURTHER HEREBY ORDERED that if the District hereafter acquires the financial capability to build said local facilities or if defendants hereafter abandon the alternative of utilizing the existing Delta-Mendota Canal in favor of either of the two alternative means of conveyance discussed in the draft environmental statement for the Project, to wit, (1) enlarging said Canal or (2) utilizing the north portion of the California Aqueduct, then the court may, after proper motion of any party served upon all parties and after appropriate hearing in open court, dissolve, modify, or suspend this Order as law and justice may require.

IT IS FURTHER HEREBY ORDERED that plaintiffs shall not be required to file a bond as a condition to the issuance of this Order.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs' motion for preliminary injunction came on for hearing on May 20, 1976, on an order shortening time issued by this court pursuant to Local Rule 112. On May 20, 1976, said motion was continued for hearing to May 27, 1976, and was then heard. Plaintiffs appeared by Thomas J.Graff, Walter V. Hays, and Jeffrey M. Oderman, their attorneys, and defendants appeared by Charles M. O'Connor, Assistant United States Attorney, their attorney.

Having fully considered the evidence, and the briefs and arguments of counsel, the court finds and concludes as follows:

FINDINGS OF FACT

The court finds that:

1. Plaintiff Environmental Defense Fund, Inc. (EDF), is a non-profit, public benefit membership corporation organized under the laws of the State of New York. Its office and residence in the State of California is located in the County of Alameda. Its membership includes over 8,000 citizens and residents of the State of California. Its purpose is to promote research and action, and to take action itself on its own behalf and on behalf of its members, to protect and enhance the natural and social environment, including, but not limited to, research and action in the interest of preservation of rivers, of river-oriented recreational opportunities, of prevention of pollution-created damage to the environment, and of conservation of water, energy, and other natural resources. [First Supplemental Complaint, paragraph 3.]

2. Plaintiff Sierra Club is a non-profit organization organized and existing under the law of the State of California. The Sierra Club is a national organization of approximately 150,000 members whose purposes are to preserve and protect the environment and to conserve natural resources. The national office of the Sierra Club is located in San Francisco, California. [First Supplemental Complaint, paragraph 4.]

3. Defendant Gilbert G. Stamm is the Commissioner of the Bureau of Reclamation (U.S.B.R.), United States Department of the Interior. Defendant Stamm is the chief officer of the U.S.B.R., and, subject to policy review by the Secretary of the Interior, holds ultimate responsibility for actions taken by U.S.B.R. [First Supplemental Complaint, paragraph 6; deposition of Gilbert Stamm, pp. 3-4.]

4. Defendant B. E. Martin is the Regional Director and the chief official in charge of the mid-Pacific region of the U.S.B.R., and supervises planning within said region. [First Supplemental Complaint, paragraph 7; deposition of B. E. Martin, 5:19-25.]

5. The San Felipe Division of the Central Valley Project was authorized by Congress on August 27, 1967. [81 Stat. 173; P.L. 90-72.] That statute authorizes the United States Department of the Interior to construct facilities to convey water from the Sacremento-San Joaquin Delta (Delta) to the San Felipe Division service area in Santa Clara, Can Benito, Monterey, and Santa Cruz counties. [Id.; First Supplemental Complaint, paragraph 10; San Felipe Division final environmental statement (final EIS), pp. A-1 to A-2.]

6. U.S.B.R. made available to the Council on Environmental Quality and the public a draft environmental impact statement (draft EIS) for the San Felipe Project on or about February 19, 1975. [Final EIS, Vol. 1, p. i.] Notice of completion of the final EIS was published in the Federal Register on March 11, 1976, in volume 1, number 49, page 10458.

7. U.S.B.R. estimates that the portion of the Division service area located in Santa Clara and San Benito counties will ultimately require 196.300 acre-feet of water annually from the San Felipe Project. [Final EIS, Vol. 1, pp. A-8 to A-14.]

8. U.S.B.R. does not plan to construct facilities in the immediate future to convey water to the portion of the Division service area located in Monterey and Santa Cruz counties. Representatives of these counties believe their area will not require additional water for 10-15 year. [Final EIS, Vol, 1, pp. A-1 and A-8.] U.S.B.R. does not disclose in the final EIS any projected future demand for San Felipe water in Monterey or Santa Cruz counties. However, future conveyance to these counties is assumed. [Id.] For example, the final EIS states that the Pacheco Tunnel will be built "full-size" in order to "provide for future service to the authorized Watsonville subarea [which encompasses Monterey and Santa Cruz counties]." [Id., at p. A-8.]

9. According to the draft and final EIS, water for the San Felipe Division service area is to be conveyed from the Delta to an existing storage facility known as O'Neill Forebay just west of Los Banos. From there the water is to be pumped up to San Luis Reservoir and then through the Diablo Mountain Range, by means of the proposed Pacheco Tunnel, to the Santa Clara Valley. [Draft EIS, p. A-3; final EIS, Vol. 1, pp. A-2 to A-3.] The draft EIS described two alternative means of conveyance from the Delta to O'Neill Forebay, as follows:

Water for the San Felipe Division will be conveyed from the Sacramento-San Joaquin Delta to the existing O'Neill Forebay either through the north portion of the State's California Aqueduct or an enlarged federal Delta-Mendota Canal. The California Aqueduct will be used, if satisfactory financial arrangements (which are now being negotiated) are completed between the United States and the State for use of sufficient capacity in both the Delta Pumping Plant and the northern portion of the Aqueduct. The alternative way of conveying San Felipe water from the Delta to O'Neill Forebay would require the enlargement of the existing Delta-Mendota Canal and the Tracy and O'Neill Pumping Plant.

[Draft EIS, p. A-3.]

10. Neither of the alternatives proposed in the draft EIS for conveying water from the Delta to O'Neill Forebay is available to U.S.B.R. at the present time.

a. The State of California has not granted U.S.B.R. permission to convey San Felipe water through the Aqueduct. The state has required as a condition to such permission that U.S.B.R. agree to abide by water quality standards set by the State of California and approved by the United States Environmental Protection Agency for the Delta. U.S.B.R. has to date refused to comply with said condition. [Final EIS, Vol. 2, p. 189; deposition of G. Stamm, at p. 18; deposition of B. E. Martin, at pp. 8-10 and 13-14; Answers to First Set of Interrogatories to Billy Martin filed on September 11, 1975 and Answers to First Set of Interrogatories to Gilbert Stamm, filed on September 29, 1975, numbers 2-6 and 8; letter dated May 5, 1976, from Russell E. Train, Administrator, U.S. Environmental Protection Agency, to Thomas S. Kleppe, Secretary of the Interior, and attached documents; statement of Ronald B. Robie at the Special Workshop of the California Water Commission on the San Felipe Division of the Central Valley Project given on May 6, 1976, pp. 1-2.]

b. There are no plans at this time to enlarge the Delta-Mendota Canal. [FEIS, p. A-19.]

11. In the final EIS, the U.S.B.R. proposes a third alternative for conveying San Felipe water from the Delta to O'Neill Forebay, as follows:

Three possible means of delivering water from the Delta to the San Felipe Division, through San Luis Reservoir, are discussed in the following paragraph. The first option discussed is the one presently being considered; however, the other two are possible if negotiations with the State for capacity in the State Aqueduct are successfully completed or because of other Central Valley Project requirements enlargement of the Delta-Mendota Canal is undertaken.

[FEIS, p. A-19; emphasis added.]

The final EIS goes on to describe its first option as follows:

(1) Use of Existing Delta-Mendota Canal Facilities. [6 ELR 20623] The water would be pumped from the Delta through the existing Tracy Pumping Plant and conveyed through the Deita-Mendota Canal to the O'Neill Pumping Plant and lifted into the O'Neill Forebay. The water would then be pumped again by the San Luis Pump-Generator Plant into San Luis Reservoir. On an annual basis about 37,000 acrefeet of storage in San Luis would be required to meet the diversion scheduled through the San Felipe Division. Delta diversions and the San Luis Reservoir operations under this option would remain about the same as those presently occurring as the operation for the San Felipe Division would be about equivalent to existing operations of the system for interim water supply. [Ibid.]

12. U.S.B.R.'s proposed use of the existing Delta-Mendota Canal was not discussed in the draft EIS. Interested parties, including plaintiffs, did not have an opportunity to comment on or obtain responses to comments from U.S.B.R. with regard to the potential environmental impact of said proposal before the final EIS was drafted. There is no evidence in the record that U.S.B.R. has consulted with or solicited comments from any federal or state agencies or members of the public with regard to said proposal before formulating the final EIS. No reason appears why U.S.B.R. was unable to include said proposal in the draft EIS.

13. The final EIS contains no data or analysis supporting U.S.B.R.'s apparent conclusion that the existing Delta-Mendota Canal has sufficient excess capacity to serve the San Felipe Division service area's projected demand for San Felipe water.

14. After San Felipe water is conveyed through the Pacheco Tunnel and arrives in the Santa Clara Valley, U.S.B.R. intends to pump approximately 4/5 of it north for use in Santa Clara County. U.S.B.R.'s plan is to convey the water through the proposed Santa Clara Canal to the proposed Santa Clara Pumping Plant, and then through the proposed Santa Clara Tunnel and Conduit to the proposed Coyote Dam, Afterbay, and Pumping Plant. [Final EIS, Vol. 1, pp. A-1 to A-8, including Plate A-2, following p. A-2.] At this point, the final EIS states, the water "will enter the [Santa Clara Valley Water] [D]istrict's system for further distribution, percolation, or storage." [Final EIS, Vol. 1, p. A-8.]

15. The Santa Clara Valley Water District [District] has not yet built the facilities required for distribution of San Felipe water throughout the county. Further, the District has not demonstrated that it has or ever will have the financial capability to build these facilities. According to the final environmental impact report (final EIR) for the San Felipe Water Distribution System released by the District in March 1976, revenue bonds, which require voter approval, are the "assumed" method of financing, and alternative methods of financing are only now being "explored." [Plaintiffs' Exhibit "E."] At the time that the final EIS was issued, the District stated that the revenue bond election would not be held until November 1977. [Id.]

16. The final EIS does not discuss the alternative of delaying the Project until after the District demonstrates that it definitely has the financial capability to build the local distribution facilities.

17. Defendants have solicited bids for construction of the Pacheco Tunnel. Unless enjoined by this court to the contrary, defendants intend to open bids, to sign contracts for the commencement of construction and for the delivery of water to the San Felipe Division service area, and to commence construction on the Project in the near future. [Statements of counsel for defendants in open court on May 20, 1976 and May 27, 1976.]

18. Unless this court enjoins defendants from proceeding with the Project, plaintiffs and their members will suffer irreparable injury.

CONCLUSIONS OF LAW

1. This is a civil action arising under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. (NEPA).

2. This court has jurisdiction over this action by virtue of the provisions of 5 U.S.C. § 702 (review of agency action); 28 U.S.C. § 1331 (federal question); and 42 U.S.C. §§ 4321 et seq. (NEPA).

3. Venue is properly laid in this District under 28 U.S.C. § 1391(e)(2) and (4).

4. The amount in controversy herein, exclusive of interest and costs, is in excess of $10,000.00.

5. Defendants are required to prepare and circulate an EIS for the San Felipe Project in accordance with 42 U.S.C. § 4332.

6. This court has a duty to rigorously enforce the procedural requirements of NEPA and to see that defendants comply with said requirements "to the fullest extent possible." 42 U.S.C. § 4332; Calvert Cliffs' Coordinating Comminee v. AEC, 449 F.2d 1109, 1112-1115 [1 ELR 20436] (D.C. Cir. 1971).

7. An EIS is in compliance with NEPA only when:

. . . its form, content, and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public information of the proposed project's environmental impact and encourage public participation in the development of that information.

Trout Unlimited v. Morton, 509 F.2d 1276, 1283 [5 ELR 20151] (9th Cir. 1974).

8. The final EIS is defective for failing to provide a detailed analysis of the feasibility of using the existing Delta-Mendota Canal to convey San Felipe water. Trout Unlimited v. Morton, supra; 42 U.S.C. § 4332.

9. Defendants' failure to include the proposal to use the existing Delta-Mendota Canal in thedraft EIS violates 42 U.S.C. § 4332(2)(C). CEQ Guidelines, supra, 40 C.F.R. § 1500.2(a) and (b), 1500.7(a), 1500.8(4) and 1500.9; Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 121-22 [5 ELR 20311] (D.N.H. 1975).

10. The final EIS is defective for failing to provide a "detailed statement" of the environmental impact and benefits of the Project should the Santa Clara Valley Water District not build any facilities to distribute San Felipe water in Santa Clara County. 42 U.S.C. § 4332(2)(C); Chelsea Neighborhood Association v. United States Postal Service, 516 F.2d 378, 387-88 [5 ELR 20373] (2d Cir. 1975).

11. A reasonable alternative to the Project is to delay the commencement of construction until after the District demonstrates that it has the financial capability to build the local distribution facilities. The final EIS is defective for failing to analyze this alternative. 42 U.S.C. § 4332(2)(C)(iii); CEQ Guildelines, supra, 40 C.F.R. § 1500.8(a)(4); EDF v. Froehlke, 473 F.2d 346, 351-52 [3 ELR 20001] (8th Cir. 1972).

12. The court does not reach plaintiffs' contention that it would be arbitrary and capricious for defendants to proceed with the Project. Nor does it reach the contention that such action would violate other requirements of NEPA than those heretofore discussed.

13. Several standards have been put forward to determine whether injunctive relief should issue in cases challenging adequacy of compliance with NEPA. Compare Lathan v. Volpe, 455 F.2d 1111, 1116-17 [1 ELR 20602] (9th Cir. 1971) with Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089 [5 ELR 20322] (9th Cir. 1975) and Appalachian Mountain Club v. Brinegar, supra. No matter which test is applied here, plaintiffs are entitled to preliminary injunctive relief. They are likely to prevail on the merits at trial. Plaintiffs would suffer irreparable if defendants were permitted to proceed before complying with NEPA, while defendants will suffer little or no injury by complying before construction commences. The public interest will also be served if defendants are required to comply with NEPA.

14. Plaintiffs are not required to post a bond as a condition to the issuance of the preliminary injunction. Scherr v. Volpe, 466 F.2d 1027 [2 ELR 20068] (7th Cir. 1972).