Big Victory for the Mokelumne River

For Immediate Release, April 14, 2011
From: Foothill Conservancy, Friends of the River, California Sportfishing Protection Alliance
For More Information, Contact
Chris Wright. FC: 209-295-4900
Bill Jennings, CSPA: 209-464-5067
Steve Evans, FOR: 916-442-3155 x 221
Ronald Stork, FOR: 916-442-3155 x 220

Conservation groups win decisive legal victory in challenging Pardee Reservoir expansion

On Monday, April 11, 2011, Sacramento Superior Court Judge Timothy M. Frawley ruled in favor of the Foothill Conservancy, California Sportfishing Protection Alliance and Friends of the River in their lawsuit challenging the East Bay Municipal Utility District’s 2040 water plan. The groups originally filed suit in November 2009.

“This is a big victory for protecting the Mokelumne River from EBMUD’s proposed Pardee Reservoir expansion, which would destroy nearly two miles of beautiful, free-flowing river eligible for National Wild and Scenic River designation,” said Chris Wright, Foothill Conservancy executive director. “Judge Frawley agreed with us that EBMUD didn’t sufficiently analyze or mitigate impacts to the river’s cultural and recreational resources or the safety issues caused by removing the historic 1912 Middle Bar Bridge. He also agreed that EBMUD violated the California Environmental Quality Act by failing to consider the expansion of Los Vaqueros Reservoir as one of its water supply alternatives. Los Vaqueros is right in EBMUD’s back yard, yet they refused to even take a look at it.

“We’re pretty excited,” said Wright. “The expansion of Pardee Reservoir was strongly opposed by countless foothill and East Bay residents and local governments, historical and tribal groups, local businesses, riverside property owners, federal agencies, PG&E and a broad range of conservation and recreation groups. We took on this fight for them.”

The proposed expansion of Pardee Reservoir would inundate nearly two miles of the Mokelumne River near Jackson, including a section known as the Middle Bar Run. The reach is significant for its many cultural and historical resources as well as its recreational uses. In his ruling, Judge Frawley noted that the Middle Bar Run was a significant recreational resource that would be eliminated by the Pardee expansion, yet, “… the EIR does not acknowledge the Middle Bar Run even exists.”

“It’s good to have court confirmation that even the mighty EBMUD must comply with California’s most basic environmental law when it comes to recognizing and protecting one of our last remaining free-flowing rivers,” said Steve Evans, Conservation Director of Friends of the River.

The court also found that EBMUD’s EIR failed to adequately describe and mitigate the potentially significant impact of expanding Pardee Reservoir on native Miwok ancestral gathering places. Federal agencies consider Native American cultural values to be one of the outstanding attributes of the proposed Mokelumne Wild and Scenic River.

The Pardee Reservoir expansion would likely lead to removal of the 1912 Middle Bar Bridge, which serves as a critical fire evacuation route for local residents. But EBMUD’s EIR didn’t consider the harm to public safety that would result from the bridge’s removal. The court said, “ … the District should have identified the potential safety impact due to possible elimination of emergency evacuation routes and adopted at least a general mitigation measure to mitigate such impacts.”

The ruling also criticized EBMUD’s failure to review the expansion of Los Vaqueros Reservoir as a local water supply alternative, noting the project “would allow the District to partner with other agencies to jointly resolve water supply issues” and “avoid the potentially significant impacts to the Mokelumne River that may result from expansion of the Pardee and/or Lower Bear Reservoirs. … A meaningful evaluation and analysis of a ‘local’ water storage alternative requires consideration of more than just the one, highly-controversial proposal” (a reference to Buckhorn Reservoir).

“The ruling will force East Bay MUD to finally examine a water supply alternative that would spare an already overappropriated Mokelumne River from further water diversions,” said Bill Jennings of the California Sportfishing Protection Alliance. “The irony is that if East Bay MUD had evaluated joining the Contra Costa Water District in the Los Vaqueros project, they would be on the verge of beginning construction of additional secure water supply facilities — decades earlier than their raise Pardee pipe dream.”

The ruling is the first part of the court’s three-part decision. The court will also issue a formal decision incorporating the ruling and a writ of mandate. The writ will direct EBMUD to set aside its certification of the EIR and approval of the 2040 Water Supply Management Plan and direct the agency to prepare, circulate for public review, and certify an adequate EIR before again approving the 2040 WSMP. This will give the EBMUD Board better information upon which to base its decision, and yet another opportunity to select a water supply option that is less destructive than the Pardee expansion.

“We hope this ruling will bring EBMUD to its senses,” said Foothill Conservancy President Katherine Evatt. “It’s time for them to stop wasting their ratepayers’ money pursuing ‘New Pardee’7 and develop an environmentally sound long-range water plan that doesn’t depend on destroying more of the Mokelumne River.”

The conservation groups’ case was handled by attorneys Michael Graf of El Cerrito and Tom Infusino of Pioneer. After reviewing the ruling, Infusino said, “I would like to thank the good people of Amador and Calaveras counties who wrote letters to EBMUD and showed up at the EBMUD hearings to explain the adverse effects of the Pardee expansion on foothill businesses, cultural resources, public safety and private property. Without those comments, we would not have been able to protect our foothill communities from EBMUD’s abuse of its governmental authority.” The case, the briefs, and the record excerpts submitted to the court were peppered with hard-hitting quotes from foothill residents and government officials.

“We’d like to thank everyone whose donations helped us carry this case forward, including many individuals, American Whitewater, and Environment Now,” said Wright. “This is a big win for our community and the Mokelumne. Now we need to secure National Wild and Scenic River designation for the river so we never have to fight another misguided and destructive dam proposal.”

For more information, contact Foothill Conservancy Executive Director Chris Wright at 209-295-4900, CSPA Executive Director Bill Jennings at 209-464-5067, Friends of the River Conservation Director Steve Evans at 916-442-3155 x 221, or Friends of the River Senior Policy Advocate Ron Stork at 916-442-3155 x 220.



What the Court Said

The Court concludes the District's Water Supply Plan is a project subject to CEQA, but concludes the District's EIR was only required to include a broad, program-level discussion of the potential environmental impacts of the project. The Court agrees with Petitioners, however, that even at a broad, programmatic level, the EIR fails in a number of respects to adequately analyze the potential impacts of, and alternatives to, the proposed project. (pg. 2)

Therefore, the Court concludes that the Water Supply Plan is a "project" for purposes of CEQA, and the District was required to prepare an EIR evaluating the environmental impacts of the Plan. (pg. 11)

There can be no dispute that if the Pardee Reservoir component is implemented, no matter which configuration (elevation) is chosen, some portion of the Middle Bar Run will be inundated. The Middle Bar Run is a significant recreational resource, and inundation would eliminate this recreational resource. Thus, approval of the project may have a potentially significant environmental impact on recreational resources due to inundation of the Middle Bar Run. The EIR is inadequate from an informational standpoint because it falls to acknowledge this potentially significant impact. (pg. 19)

Moreover, because the EIR fails to identify this potentially significant impact on recreational resources, the EIR's proposed mitigation measures are inadequate. The District found that potential impacts on existing recreational facilities could be mitigated to less than significance by operating the reservoir to preserve the Electra Whitewater Run. The Electra Whitewater Run is upstream of the Middle Bar Run, so committing to preserve the Electra Whitewater Run does not mitigate the potentially significant impacts to the Middle Bar Run. Thus, the District's finding that impairment of recreational facilities and activities will be "less than significant after mitigation" is not supported by substantial evidence. (pg. 20)

The District has failed to adequately describe and mitigate the potentially significant impact to native Miwok ancestral gathering places. (pg. 20)

In contrast, the Court agrees with Petitioners that the District has impermissibly deferred analysis and mitigation of the potential safety impacts due to possible removal of emergency evacuation routes. (pg. 21)

The EIR failed to adequately identify potentially significant impacts due to the possible expansion of Pardee Reservoir. (pg. 26)

…the Court agrees with Petitioners that the decision to exclude the (Los Vaqueros enlargement) project from consideration in the District’s program EIR is not supported by substantial evidence in the record. (pg. 28)

…the District cannot arbitrarily exclude potential water supply options merely because they are not fully defined and certain. (pg. 28)

Under the circumstances, the Court is persuaded that there is not sufficient variation to permit a reasonable choice of alternatives in the absence of the Los Vaqueros Reservoir component. A meaningful evaluation and analysis of a "local" water storage alternative requires consideration of more than just the one, highly-controversial proposal for a new local reservoir in a previously undeveloped area. Accordingly, the Court concludes that the EIR’s alternatives analysis is deficient. (pg. 34)

The petition shall be granted in respect to the claims that (i) the EIR falls to adequately describe and mitigate the potentially significant impacts on cultural and recreational resources that would result if the Mokelumne River is inundated by expansion of the Pardee Reservoir; (ii) the EIR falls to adequately identify and mitigate the potentially significant safety impacts due to elimination of emergency evacuation routes; (iii) the EIR's alternatives analysis is deficient because it eliminated the Los Vaqueros Reservoir project and failed to consider a reasonable range of alternatives to the Regional Upcountry water supply components. In all other respects, the petition shall be denied. (pg. 34)

A peremptory writ of mandate shall issue from this Court commanding Respondent District to set aside its certification of the EIR and all related project approvals based on the CEQA violations as set forth herein, and to prepare, circulate, and certify a legally adequate EIR (consistent with views expressed in this ruling) before proceeding with the project. The peremptory writ shall further command District to file a return in this Court within six months after the issuance of the writ specifying what it has done to comply with the writ. (pgs. 34-35)