1 2 3 4 5 6 7 8 9 10 11
JAMES C. SANCHEZ (SBN 116356) City Attorney SANDRA G. TALBOTT (SBN 140099) Assistant City Attorney City of Sacramento 915 I Street, Room 4010 Sacramento, CA 95814-2608 Telephone: 916.808.5346 Facsimile: 916.808.7455
[EXEMPT FROM FILING FEE GOV. CODE §6103]
WESLEY A. MILIBAND (SBN 241283)
[email protected] SHANNON L. MORRISSEY (SBN 307144)
[email protected] STOEL RIVES LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 Telephone: 916.447.0700 Facsimile: 916.447.4781 Attorneys for Petitioner CITY OF SACRAMENTO
12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 CITY OF SACRAMENTO,
CASE NO.
16 Petitioner,
PETITION FOR WRIT OF MANDATE
17 [CEQA: Code Civil Procedure §§ 526, 1085 and 1094.5; Public Resources Code §§ 21167, 21168 and 21168.5.]
v. 18 19
CALIFORNIA DEPARTMENT OF WATER RESOURCES, and DOES 1 through 100, inclusive,
20 Respondents. 21 22 23
I.
INTRODUCTION 1.
Petitioner CITY OF SACRAMENTO (“City of Sacramento” or “Petitioner”)
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brings this Petition for Writ of Mandate (the “Petition”) against Respondent CALIFORNIA
25
DEPARTMENT OF WATER RESOURCES (“California DWR” or “Respondent”).
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2.
This case proceeds under the California Environmental Quality Act (“CEQA”)
(California Public Resources Code § 21000 et seq.) and its implementing regulations at California
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S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
Code of Regulations, title 14, § 15000 et seq. (the “CEQA Guidelines”), as well as other legal
2
authority including California Code of Civil Procedure §§ 1094.5 and 1085.
3
3.
The Petition arises in response to California DWR’s certification of a joint Final
4
Environmental Impact Report and Environmental Impact Statement (State Clearinghouse Number
5
2008032062) (“FEIR/FEIS”) for the Bay Delta Conservation Plan/California WaterFix (the
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“Project”), which includes three geographic regions identified in California DWR’s Notice of
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Determination dated July 21, 2017 as upstream of the Delta region – in which the City of
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Sacramento is situated – as well as the Delta region and State Water Project (“SWP”) and Central
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Valley Project (“CVP”) export service areas.
10
4.
The Project seeks to construct new water conveyance infrastructure and facilities
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by adding three diversion points on the Sacramento River in the North Delta, coupled with two
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large, subsurface tunnels for conveying water with new operations for the SWP and CVP.
13
5.
While California DWR and the U.S. Bureau of Reclamation (“Reclamation”)
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evaluated certain environmental impacts of constructing and operating the Project pursuant to
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CEQA and the National Environmental Policy Act, respectively, the Project and the FEIR/FEIS
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do not comply with CEQA for numerous reasons, including the reasons described below.
17
II.
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THE PARTIES 6.
Petitioner City of Sacramento is, and at all relevant times was, a municipal
corporation duly organized and existing under the laws of the State of California. 7.
Petitioner has a direct and substantial beneficial interest in ensuring that California
21
DWR complies with federal, state, and local laws relating to environmental protection,
22
particularly CEQA and the CEQA Guidelines. Petitioner and other stakeholders, many of whom
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share similar concerns and are or could be adversely impacted by the Project, actively participated
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in and commented on California DWR’s administrative review and approval process for the
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Project, and commented extensively on the adequacy of the Project’s environmental analysis
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under CEQA.
27 28 S TOE L R IVES LLP
8.
Respondent California DWR is, and at all times mentioned was, a California
public agency duly organized and existing under the laws of the State of California. California -2-
ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
DWR is the lead agency under CEQA for purposes of evaluating environmental impacts
2
associated with the Project and certification of the FEIR/FEIS.
3
9.
The true names and capacities, whether individual, corporate, associate, or
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otherwise, of Respondent DOES 1 through 100, inclusive, are unknown to Petitioner at this time
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who therefore sues said DOES by such fictitious names. When Petitioner has ascertained the true
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names and capacities of DOES 1 through 100, inclusive, Petitioner will amend this Petition to
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allege their true names and capacities. Petitioner is informed and believes and thereon alleges
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that each of said fictitiously named Respondents is in some manner responsible for the injuries
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alleged by Petitioner.
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III.
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THE PETITION IS TIMELY 10.
California DWR filed a Notice of Determination on July 21, 2017. Therefore, this
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Petition is timely filed pursuant to Public Resources Code § 21167 and CEQA Guidelines
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§ 15112(c).
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IV.
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JURISDICTION AND VENUE 11.
The Sacramento County Superior Court has jurisdiction over the matters alleged
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pursuant to Code of Civil Procedure §§ 526, 1060, 1085, and 1094.5 and Public Resources Code
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§§ 21167, 21168, and 21168.5.
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12.
Pursuant to Code of Civil Procedure §§ 393-395, venue is proper in Sacramento
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County Superior Court because the causes of action alleged in this Petition arose in this County,
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because Respondent is a public agency headquartered in this county, and because the location of
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adverse impacts from the Project to Petitioner is within Sacramento County.
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V.
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STANDING 13.
Petitioner has standing to assert the claims raised in this Petition. As described
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above, Petitioner is located within Sacramento County and is beneficially interested in this matter
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as a water right holder and municipal water supplier, and thus it seeks to protect the public
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interest of the City of Sacramento and its residents and businesses. The Project as analyzed in the
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FEIR/FEIS harms the City of Sacramento’s ability to exercise its water rights for beneficial uses
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including delivery of safe, reliable, and high quality water supplies from the American and -3-
S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
Sacramento Rivers. On behalf of its residents and businesses, and as a member of the
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Sacramento Water Forum - which is a diverse group of business and agricultural leaders, citizen
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groups, environmentalists, and urban water managers - Petitioner also seeks to continue its long-
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standing efforts to protect the public interest in the aquatic resources of the lower American River
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and Sacramento River, which flow through the City of Sacramento.
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14.
Petitioner is also beneficially interested in the issuance of the writ because as a
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public agency charged with protecting and enhancing local health, safety, and welfare, Petitioner
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has an interest in ensuring that other agencies lawfully perform their duties that are mandated by
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applicable laws, and in ensuring that such laws, regulations, and duties are executed and enforced.
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VI.
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EXHAUSTION OF ADMINISTRATIVE REMEDIES 15.
Petitioner has fully exhausted any and all available administrative remedies,
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having submitted written comments, submitted by the City of Sacramento and by groups of which
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the City of Sacramento is a member, on the both the draft and recirculated Environmental Impact
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Report and Environmental Impact Statement as well as the FEIR/FEIS for the Project. In
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addition to claims raised by Petitioner and by groups of which Petitioner is a member on topics or
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issues known to Petitioner throughout the administrative process, various other stakeholders have
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raised concerns regarding impacts of the Project. Petitioner has thus fully exhausted its
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administrative remedies consistent with Public Resources Code § 21177.
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16.
California DWR has taken final action with respect to the approvals challenged
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herein. Petitioner has no further remedy to pursue at the administrative level to challenge the
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approvals or the Project itself other than by means of this lawsuit. Petitioner has no plain, speedy,
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or adequate remedy in the ordinary course of law. This Court is therefore requested to grant a
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writ of mandate to require Respondent to set aside approval and related FEIR/FEIS certification
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of the Project, and such other injunctive and declaratory relief as is appropriate.
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VII.
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NOTICE 17.
Petitioner has complied or will comply with all prerequisites in bringing this
action. On August 18, 2017, Petitioner sent via U.S. mail a written notice of commencement of
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S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
this action in compliance with Public Resources Code § 21167.6. A copy of this written notice
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and proof of service is attached as Exhibit A and incorporated herein by reference.
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VIII. BACKGROUND
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18.
In December 2016, California DWR and Reclamation issued the FEIR/FEIS.
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19.
On July 21, 2017, California DWR certified the FEIR/FEIS under CEQA, adopted
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Findings and a Statement of Overriding Considerations, adopted a Mitigation Monitoring and
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Reporting Program, and approved the Project. On the same date, California DWR filed a Notice
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of Determination (“NOD”) with the Governor’s Office of Planning and Research. The NOD
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provides a description of the Project. A copy of the NOD is attached as Exhibit B and
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incorporated herein by reference.
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FIRST CAUSE OF ACTION
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(Writ of Mandamus – Violation of CEQA)
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20.
Petitioner realleges and incorporates by reference Paragraphs 1 through 19, as
though set forth fully herein. 21.
As a governmental agency, California DWR is required to comply with CEQA,
Public Resources Code §§ 21000-21177, in approving discretionary projects. 22.
The Project is a discretionary program and requires compliance with CEQA, in
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addition to numerous other federal, state, and local regulatory decisions and approvals required
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for such a large-scale project.
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23.
Due to the deficiencies described below, the FEIR/FEIS is not supported by
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substantial evidence, and the California DWR, in certifying the FEIR/FEIS and approving the
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Project with adoption of related findings, has failed to proceed in a manner required by law,
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including Public Resources Code § 21166 and CEQA Guidelines §§ 15162 and 15164, and has
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committed an abuse of discretion. Additional deficiencies may be identified when the record is
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prepared.
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24.
More specifically, California DWR violated CEQA in the following ways:
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a. The FEIR/FEIS fails to analyze adequately the water supply impacts of the
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Project – whether direct, indirect, or cumulative – at Folsom Reservoir and -5-
S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
downstream of Folsom Reservoir in the Sacramento region, and to regional
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groundwater supplies, by not including an adequate and complete analysis
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of what will occur in dry years and multi-year dry periods, thus leaving a
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critical gap in the analysis of potential impacts to legal users of water from
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Folsom Reservoir and downstream of Folsom Reservoir, such as the City
6
of Sacramento;
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b. The FEIR/FEIS fails to analyze adequately the water quality impacts of the
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Project – whether direct, indirect, or cumulative – at Folsom Reservoir and
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downstream of Folsom Reservoir in the Sacramento region, including
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impacts to the quality of surface water diverted by the City of Sacramento
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at its water intakes on the lower American River and Sacramento River,
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such as increased potential for disinfection byproduct formation and
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microcystis blooms;
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c. The FEIR/FEIS fails to analyze the full scope of the Project’s potential
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impacts – whether direct, indirect, or cumulative – on aquatic resources in
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the Lower American and Sacramento Rivers, such as reduced Folsom
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Reservoir storage causing significant impacts to sensitive fish in the lower
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American River due to reduced flows and a reduced cold-water pool in the
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reservoir, resulting in higher river water temperatures. The FEIR/FEIS
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also does not adequately analyze impacts on salmon and steelhead that
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migrate into and out of the Lower American and Sacramento Rivers;
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d. The FEIR/FEIS fails to adopt proper and feasible mitigation measures to
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mitigate the Project’s potentially significant impacts to the American and
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Sacramento Rivers and to groundwater in the Sacramento region,
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specifically impacts to surface and groundwater supplies and to aquatic
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species in the lower American River;
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e. The FEIR/FEIS improperly defers analysis of key aspects of the Project,
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such as the operations plan that will be used for operation of the Project by -6-
S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
the SWP and CVP water projects, the operations of the Project’s diversion
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points, and the Project’s spring outflow requirements;
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f. The FEIR/FEIS fails to adequately describe baseline physical conditions,
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such as its use of an early long-term baseline rather than current conditions,
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thereby skewing the analysis of the Project’s potential impacts; and
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g. The FEIR/FEIS fails to provide a consistent, accurate, or clear description
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of the Project, as required under CEQA, as made evident by the changes
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since the first draft Environmental Impact Report and Environmental
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Impact Statement for the Project was released, with further Project
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description changes after the release of the FEIR/FEIS that constitute
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significant new information and suggest there will be additional,
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undisclosed water supply impacts to upstream reservoirs, such as Folsom
13
Reservoir.
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25.
The FEIR/FEIS certification should be overturned because the California DWR’s
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decision and findings (including the findings of overriding considerations) were not supported by
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substantial evidence in the record, and therefore the agency has committed a prejudicial abuse of
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discretion. (Pub. Resources Code, § 21168.)
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26.
As a direct and proximate result of the actions and inactions described above, and
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pursuant to Public Resources Code §§ 21168 and 21168.5, Petitioner is entitled to an order and/or
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injunctive relief finding and declaring that the FEIR/FEIS, and California DWR’s related
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certification and approval of the Project, is void and should therefore be set aside. Additionally,
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Respondent should temporarily and permanently be enjoined from pursuing any actions or
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activities in furtherance of the Project pending a final adjudication on the merits. Petitioner has
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no plain, speedy, or adequate remedy at law for this irreparable harm. Therefore, a stay or
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preliminary and permanent injunction should issue restraining California DWR from taking any
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additional actions to implement the Project until DWR has complied with CEQA. The Court may
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stay or enjoin the operation of any administrative decision or order involved in this proceeding
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pursuant to Code of Civil Procedure §§ 1085 and 1094.5. -7-
S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
1
27.
The maintenance and prosecution of this action involve enforcement of important
2
rights affecting the public interest, in which the City of Sacramento confers a substantial benefit
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on the public. Therefore, if successful, the City of Sacramento is entitled to seek recovery of
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attorneys’ fees pursuant to Code of Civil Procedure § 1021.5.
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PRAYER FOR RELIEF
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WHEREFORE, Petitioner prays for the following relief:
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1.
For a peremptory writ of mandate directing California DWR to vacate and set
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aside California DWR’s certification of the FEIR/EIS and California DWR’s approval of the
9
Project, and to take or refrain from taking any other action the Court deems appropriate pursuant
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to Public Resources Code § 21168.9 or other provisions of law, including without limitation
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direction to California DWR to address the specific deficiencies described above, to adequately
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analyze and mitigate impacts related to those deficiencies, and/or as otherwise prescribed by the
13
Court.
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2.
For an order staying and/or temporary restraining order and preliminary and
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permanent injunctions enjoining California DWR from pursuing any actions or activities in
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furtherance of the Project until CEQA compliance is achieved, pending a final adjudication on the
17
merits, pursuant to Code of Civil Procedure §§ 525, 526, 1085, and 1094.5, Public Resources
18
Code § 21168.9, and any other applicable law.
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3.
For attorneys’ fees including but not limited to fees authorized under Code of Civil
Procedure § 1021.5.
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4.
For costs of suit.
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5.
And for further relief as this Court deems proper.
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DATED: August 18, 2017
STOEL RIVES LLP
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By: WESLEY A. MILIBAND Attorneys for Petitioner CITY OF SACRAMENTO
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S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
PETITION FOR WRIT OF MANDATE 93837805.1 0056321-00003
EXHIBIT A
1 2 3 4 5 6 7 8 9 10 11
JAMES C. SANCHEZ (SBN 116356) City Attorney SANDRA G. TALBOTT (SBN 140099) Assistant City Attorney City of Sacramento 915 I Street, Room 4010 Sacramento, CA 95814-2608 Telephone: 916.808.5346 Facsimile: 916.808.7455
[EXEMPT FROM FILING FEE GOV. CODE §6103]
WESLEY A. MILIBAND (SBN 241283)
[email protected] SHANNON L. MORRISSEY (SBN 307144)
[email protected] STOEL RIVES LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 Telephone: 916.447.0700 Facsimile: 916.447.4781 Attorneys for Petitioner CITY OF SACRAMENTO
12 13 14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF SACRAMENTO
16 17
CITY OF SACRAMENTO,
18 19 20 21 22
CASE NO.
Petitioner,
DECLARATION OF SERVICE [Public Resources Code § 21167.6 (b)(2)]
v. CALIFORNIA DEPARTMENT OF WATER RESOURCES, and DOES 1 through 100, inclusive, Respondents.
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S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
DECLARATION OF SERVICE 93839465.1 0056321-00003
1 2 3
DECLARATION OF SERVICE I declare that I am over the age of eighteen years and not a party to this action. I am employed in the City and County of Sacramento and my business address is 500 Capitol Mall, Suite 1600, Sacramento, California 95814.
4
On August 18, 2017, at Sacramento, California, I served the attached document(s):
5
NOTICE OF COMMENCEMENT OF CEQA ACTION
6
on the following parties:
7
Grant Davis Director California Department of Water Resources P.O. Box 942836 Sacramento, CA 94236 Fax: (916) 653-4684
8 9 10
Counsel for Respondent CALIFORNIA DEPARTMENT OF WATER RESOURCES
11
BY FIRST CLASS MAIL: I am readily familiar with my employer’s practice for the collection and processing of correspondence for mailing with the U.S. Postal Service. In the ordinary course of business, correspondence would be deposited with the U.S. Postal Service on the day on which it is collected. On the date written above, following ordinary business practices, I placed for collection and mailing at the offices of Stoel Rives LLP, 500 Capitol Mall, Suite 1600, Sacramento, California 95814, a copy of the attached document in a sealed envelope, with postage fully prepaid, addressed as shown on the service list. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing contained in this declaration.
BY FACSIMILE: On the date written above, I caused a copy of the attached document to be transmitted to a fax machine maintained by the person on whom it is served at the fax number shown on the service list. That transmission was reported as complete and without error and a transmission report was properly issued by the transmitting fax machine.
BY HAND DELIVERY: On the date written above, I placed a copy of the attached document in a sealed envelope, with delivery fees paid or provided for, and arranged for it to be delivered by messenger that same day to the office of the addressee, as shown on the service list.
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BY EMAIL: On the date written above, I emailed a copy of the attached documents to the addressee, as shown on the service list.
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BY OVERNIGHT MAIL: I am readily familiar with my employer’s practice for the collection and processing of correspondence for overnight delivery. In the ordinary course of business, correspondence would be deposited in a box or other facility regularly maintained by the express service carrier or delivered to it by the carrier’s authorized courier on the day on which it is collected. On the date written above, following ordinary business practices, I placed for collection and overnight delivery at the offices of Stoel Rives LLP, 500 Capitol Mall, Suite 1600, Sacramento, California 95814, a copy of the attached document in a sealed envelope, with delivery fees prepaid or provided for, addressed as shown on the service list.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this document was executed on August 18, 2017, at Sacramento, California.
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Gisele Mitsuk
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S TOE L R IVES LLP ATTO RNEY S AT LAW SACRA M E NT O
DECLARATION OF SERVICE 93839465.1 0056321-00003
EXHIBIT B
