Planning & Conservation League v. Castaic Lake Water Agency (180 Cal. App. 4th 210, 2009)

Opinion

MANELLA, J.

Planning and Conservation League (PCL) and California Water Impact Network (CWIN) sought administrative mandamus (Code Civ. Proc., § 1094.5) in actions involving Castaic Lake Water Agency (Castaic). Their petitions challenged an environmental impact report (EIR) certified by Castaic pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) concerning a transfer of water from Kern County Water Agency (Kern) and Wheeler Ridge-Maricopa Water Storage District (Wheeler Ridge) to Castaic. Although the trial court rejected PCL’s and CWIN’s key contentions, it found that the EIR contained a defect, and issued a writ of mandate directing Castaic to decertify the EIR. PCL and CWIN appealed, challenging the trial court’s rejection of their contentions; Castaic, Wheeler Ridge, and Kern cross-appealed, challenging the issuance of the writ. We conclude that the trial court correctly rejected PCL and CWIN’s principal contentions, but erred in issuing the writ. We thus reverse.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The underlying actions culminate long-standing disputes concerning the water transfer in question, which arises within California’s State Water Project (SWP). This is the third time we have addressed issues related to Castaic’s attempt to certify an EIR concerning the transfer in compliance with CEQA. We summarize the history preceding our first two opinions before describing the facts pertinent to the present appeal.

A. SWP

California’s Department of Water Resources (DWR) manages the SWP, a system of dams, reservoirs, canals, and aqueducts that delivers water from the so-called “Delta” area of the Sacramento River to Central and Southern California. The SWP, as planned, was to deliver 4.23 million acre-feet of water annually. Because the SWP has not been completed, it delivers an average of 2.96 million acre-feet per year.

In 1961, DWR entered into contracts for the provision of water to local suppliers. At present, 29 local suppliers have contracts with the DWR, including Castaic and Kern. The contracts have standardized provisions. Each contract identifies a maximum amount of water—often called the “Table A water”—that DWR has agreed to provide to the contractor, if the water is available. Delivery of the full amount of Table A water is not assured.

As initially executed, the contracts addressed shortages in article 18. In the case of a temporary shortage, article 18(a) imposed reductions first on contractors supplying water for agricultural purposes; in the case of a permanent shortage, article 18(b) imposed a prorated reduction on each contractor through amendment of the Table A water amount stated in the contract.

B. Monterey Agreement

Historically, DWR has delivered less water than the total amount of Table A water identified in the contracts. Until the late 1980’s, the shortfall caused few problems because the contractors did not demand their full allocation of Table A water. In the late 1980’s and early 1990’s, a drought reduced DWR’s deliveries below the amounts requested by the contractors, resulting in reductions to contractors supplying water for agricultural purposes. Disputes arose between these contractors and contractors providing water for urban areas.

In December 1994, the DWR and five contractors met in Monterey and negotiated 14 broad principles regarding amendment of the contracts. The so-called “Monterey Agreement” approved amendments that changed the allocations of water to agricultural and urban suppliers. The contracts were to be amended to eliminate the water reduction provisions in article 18— including the “agriculture first” provision in article 18(a)—and to provide instead that each supplier was entitled to a prorated portion of the available water, based on its Table A amount, regardless of whether the water was used for agricultural or urban purposes. In addition, the permitted amendments freed 130,000 acre-feet of water previously allocated to agricultural use for transfer to urban suppliers. DWR agreed to “expeditiously approve permanent sales of entitlements among [cjontractors.”

In 1995, the Central Coast Water Authority (Central Coast), one of the 29 contractors, prepared and certified an EIR under CEQA regarding the Monterey Agreement. Over the following two years, 27 of the 29 contractors—including Castaic and Kern—amended their contracts to conform to the Monterey Agreement. These amendments are sometimes called the “Monterey Amendments.” Article 53 of Castaic’s amended contract reflects a provision of the Monterey Agreement permitting Kern and other agencies to participate in, and approve, permanent water transfers totaling 130,000 acre-feet per annum.

C. Kern-Castaic Transfer

In March 1999, Castaic entered into an agreement to buy a permanent entitlement to 41,000 acre-feet of SWP water from Wheeler Ridge, which receives SWP water from Kern. DWR and Kern approved the transfer. On March 29, 1999, Castaic certified an EIR under CEQA that “tiered off” the EIR that Central Coast had certified regarding the Monterey Agreement.

1. Challenge to the 1999 EIR

On April 30, 1999, the Friends of the Santa Clara River (Friends) sought administrative mandamus regarding the certification of the EDR (Friends’s action). In July 2000, the trial court denied Friends’s petition. While Friends’s appeal from the denial was pending before this court, the Court of Appeal for the Third Appellate District determined that the Monterey Agreement EIR was defective and ordered it decertified. (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892 [100 Cal.Rptr.2d 173] (Planning & Conservation League).) The court held that Central Coast had improperly acted as lead agency regarding the EIR, and that DWR must prepare and certify a new EIR. (Id. at pp. 903-907.) In addition, the court ruled that the new EIR’s assessment of the “no project” alternative—that is, the retention of the pre-Monterey Agreement contracts—must discuss the impact of implementing subdivision (b) of article 18, the contract term dealing with permanent water shortages. (83 Cal.App.4th. at pp. 908-920.)

In Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373, 1384 [116 Cal.Rptr.2d 54] (Friends I), this court concluded that Castaic’s EIR was defective because it tiered off the decertified Monterey Agreement EIR. As we noted, the 1999 EIR relied on the decertified Monterey Agreement EIR to establish that the environmental effects of the Monterey Agreement, including “upstream effects of the [Kern-Castaic transfer],” were negligible. (Id. at pp. 1384-1385.) We further stated: “We have examined all of [Friends’s] other contentions and find them to be without merit. If the []tiering problem had not arisen, we would have affirmed the judgment.” (Id. at p. 1387, italics omitted.) We thus directed the trial court to issue a writ vacating the certification of Castaic’s EIR, and to retain jurisdiction until Castaic certified an EIR in compliance with CEQA. (95 Cal.App.4th at p. 1388.)

In issuing the writ on October 25, 2002, the trial court rejected Friends’s request for an injunction barring Castaic from acquiring and using water through the Kem-Castaic transfer until Castaic complied with CEQA. In December 2002, Friends appealed from this ruling. We granted requests by PCL to submit a brief as an amicus curiae and participate in oral argument.

In mid-2003, while Friends’s appeal from the denial of injunctive relief was before us, the parties in the litigation regarding the Monterey Agreement EIR entered into a settlement agreement, often called “Monterey Plus.” The agreement permitted compliance with the Monterey Agreement pending DWR’s certification of the new EIR, but obliged DWR to include an analysis of the potential environmental effects of the Kern-Castaic transfer. Regarding the action over the Kern-Castaic transfer, the agreement stated: “The Parties agree that jurisdiction with respect to that litigation should remain in [the Los Angeles County Superior Court] and that nothing in this Settlement Agreement is intended to predispose the remedies or other actions that may occur in that pending litigation.”

In December 2003, we affirmed the denial of injunctive relief in an unpublished opinion. (Friends of the Santa Clara River v. Castaic Lake Water Agency (Dec. 1, 2003, B164027) (Friends II).)

2. Castaic’s 2004 EIR

On December 22, 2004, Castaic certified a second EIR, adopted a mitigation program and statement of overriding considerations, and approved the Kern-Castaic transfer. The EIR describes the project as the transfer of 41,000 acre-feet of Table A water from Kern and Wheeler Ridge to Castaic, which also involves the use of SWP facilities elsewhere. According to the EIR, the project “currently is being implemented by an amendment to the SWP water supply contracts of [Castaic] and [Kern] executed in 1999.” It further states that DWR, Kern, and Wheeler Ridge approved the 1999 contract amendments, that the transfer was “contractually completed in 1999,” and that “[n]o permits and other approvals would be required other than the certification of this EIR.” The EIR describes the underlying history, including the Monterey Agreement and Amendments, the decertification of the Monterey Agreement EIR and 1999 EIR, and the Monterey Plus settlement agreement.

Regarding the water transfer, the 2004 EIR contains a section entitled “Areas of Known Controversy,” which states: “The previous EIR on the Project was decertified because it tiered from the Monterey Agreement . . . EIR, which itself [was] decertified as a result of an appellate court decision. The present EIR does not tier from this or any other EIR, and examines environmental impacts that would occur with and without the change in water allocation criteria implemented as part of the Monterey Amendments]. Although the Monterey Amendments] continue[] in operation under the [Monterey Plus settlement agreement], this EIR evaluates a reasonable worst-case scenario of SWP operations without the Monterey Amendments].”

In analyzing the transfer’s environmental impacts, the 2004 EIR examines three “scenarios” regarding the transfer. The EIR states: “The transfer of [the] Table A amount that is the subject of this EIR was implemented under [the] permanent transfer provision of the Monterey Amendments], although the transfer could be implemented under Article 41 of [Castaic’s] original Water Supply Contract.” The EIR further explains: “DWR is in the process of preparing a new EIR for the Monterey Amendments]. Since the Monterey Amendments] change[] the way SWP supplies are allocated among Contractors, this EIR provides three separate analyses of the Project’s impacts to water supply available to [Wheeler Ridge] and [Castaic]. The three analyses represent three possible scenarios for allocating available SWP water supplies among Contractors, and provide an evaluation of the amount of SWP supply that would be associated with the 41,000 [acre-feet] of Table A Amount under each of the allocation scenarios.” The three scenarios examined in the 2004 EIR are: (1) SWP allocation with the Monterey Amendments; (2) SWP allocation without the Monterey Amendments, and with the “agriculture first” reduction provision of article 18(a) in place; and (3) SWP allocation without the Monterey Amendments, but with permanent cutbacks under article 18(b).

The scenarios examine how the water allocation criteria under the pertinent contractual regimes would affect DWR’s delivery of water for the transfer during water shortages. The first scenario assumes that the transfer is implemented under the Monterey Amendments, and addresses the delivery of water under the allocation criteria of the Monterey Amendments. The remaining two scenarios assume that the transfer is implemented under the pre-Monterey Agreement contractual regime, which incorporated different allocation criteria for temporary and permanent shortages. Specifically, the second scenario examines the possibility of temporary shortages, and assesses the delivery of water under article 18(a) of the pre-Monterey Agreement contracts, which concerns temporary shortages; the third scenario contemplates a permanent shortage, and assesses the delivery of water under article 18(b), which concerns permanent shortages.

The 2004 EIR examines the environmental effects of the transfer under all three scenarios for the SWP (and associated facilities), Wheeler Ridge, and Castaic. According to the EIR, the transfer will have no significant impacts on the SWP or the Wheeler Ridge service area. Regarding the Castaic service area, the EIR concludes that the transfer will have some significant indirect impacts (largely associated with new population growth), and proposes mitigation measures to address these impacts.

The 2004 EIR also examines five alternatives to the transfer, including a “[n]o [pjroject” alternative, under which Castaic would obtain neither the 41,000 acre-feet of water nor the contractual rights to it. The remaining alternatives study the impact of relying on groundwater or desalinated seawater, and of receiving less or more than 41,000 acre-feet of SWP water.

3. Underlying Challenge to 2004 EIR

In late December 2004, Castaic filed a return to the writ issued by Los Angeles County Superior Court, asserting that the 2004 EIR complied with the writ. On January 24, 2005, PCL and CWIN initiated separate actions in Ventura County Superior Court, seeking administrative mandamus on the ground that the EIR contravened CEQA. Their petitions named Castaic as respondent, and Kern, Wheeler Ridge, and DWR as real parties in interest.

On February 1, 2005, Friends voluntarily dismissed its action with prejudice. Accompanying the dismissal was an explanation from Friends’s counsel, who noted the existence of PCL’s and CWIN’s actions, and stated: “While Friends believes that the new [EIR] neither complies with [CEQA] nor [complies] with the views expressed [in the Friends I opinion], Friends does not desire to initiate an entirely new legal challenge to the 2004 [EIR] due to limited funding of this not-for-profit organization.”

By ex parte application, Castaic sought to vacate the dismissal, arguing that it contravened our directions in Friends I and Friends II, and was intended to assist PCL and CWIN “in their forum shopping exploits in Ventura.” In opposing the application, Friends’s counsel stated: “We can give up, and we have given up. We may not want to, but Friends does not have the financial wherewithal to continue going on contesting new EIR[]s.” The trial court denied the ex parte application. Castaic sought relief from this ruling by petition for writ of mandate, which we denied.

Before the Ventura County Superior Court, Castaic demurred to PCL’s and CWIN’s actions, contending that the doctrine of res judicata barred them, and that only the trial court in the Friends’s action had jurisdiction over PCL’s and CWIN’s claims. In May 2005, the Ventura County Superior Court consolidated the actions. In July 2005, the court concluded that venue was proper in Los Angeles County Superior Court and transferred the actions, but otherwise declined to rule on Castaic’s demurrers.

Following the transfer, the trial court overruled the demurrers, finding the petitions were not barred by res judicata. On April 2, 2007, following trial, the court issued its statement of decision on PCL’s and CWIN’s petitions. The court rejected their principal challenges to the 2004 EIR, but nonetheless found that there was “a hole” in the EIR. Specifically, the court concluded that the EIR did not adequately explain the relevance of the pending Monterey Agreement EIR to the three water delivery scenarios discussed in the 2004 EIR. On May 22, 2007, the trial court issued a peremptory writ directing Castaic to set aside the EIR and cure the identified defect.

DISCUSSION

On appeal, PCL and CWIN renew their contentions of error regarding the 2004 EIR; in the cross-appeal, Castaic, Kern, and Wheeler Ridge (cross-appellants) argue that the doctrine of res judicata precludes appellants’ actions regarding the EIR, and that the trial court erred in determining that the EIR is defective. For the reasons explained below, we conclude that the EIR contains no material defects, and otherwise reject the parties’ contentions.

A. Res Judicata

We begin by examining cross-appellants’ contention that the doctrine of res judicata bars the challenges to the 2004 EIR.

1. Governing Principles

As cross-appellants raised the defense of res judicata by demurrers to PCL’s and CWIN’s petitions, our review follows established principles. “If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. [Citation.] In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. [Citations].” (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299 [243 Cal.Rptr. 390].) Here, the trial court took judicial notice of pertinent records from the Friends action, including Friends’s request to dismiss the action, Castaic’s ex parte application to set aside the dismissal, and the reporter’s transcript from the hearing on the application.

In addressing the demurrers, the trial court was obliged to determine whether the petitions stated a cause of action, accepting as true all material facts properly pleaded in the petitions, and disregarding conclusions of law and allegations contrary to judicially noticed facts. (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 277 [15 Cal.Rptr.3d 373].) We examine the trial court’s determinations on this matter de novo, applying the same principles. (See id. at p. 279.)

Generally, “ ‘[r]es judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation].” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 [123 Cal.Rptr.2d 432, 51 P.3d 297], fn. omitted.) Although the term “res judicata” is often applied to both doctrines, we follow our Supreme Court in limiting its scope to claim preclusion. (Id. at p. 896, fn. 7.)

Claim preclusion applies when “(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202 [24 Cal.Rptr.3d 543] (Federation).) Upon satisfaction of these conditions, claim preclusion bars “not only . . . issues that were actually litigated but also issues that could have been litigated.” (Ibid.)

The focus of our examination is on the bar rule of claim preclusion. Under this rule, “a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 897.) Here, the trial court concluded the rule was inapplicable because the facts—as disclosed by the petitions and the matters of which it had taken judicial notice—established only two of the rule’s three requirements. In overruling the demurrers, the trial court determined that Friends’s voluntary dismissal of its action with prejudice was a retraxit, and as such, constituted a judgment on the merits in Castaic’s favor; moreover, it found that PCL and CWIN asserted the cause of action litigated by Friends. However, the trial court determined that PCL and CWIN were not in privity with Friends.

Like the trial court, we conclude that Friends’s dismissal constituted a judgment for purposes of the bar rule. As explained in Le Parc Community Assn. v. Workers’ Comp. Appeals. Bd. (2003) 110 Cal.App.4th 1161, 1169 [2 Cal.Rptr.3d 408]: “ ‘In the common law, a retraxit was “a voluntary renunciation by plaintiff in open court of his suit and cause thereof, and by it plaintiff forever loses his action.” [Citations.] In California, the same effect is now accomplished by a dismissal with prejudice. [Citations.]’ [Citation.]” However, for the reasons explained below, we conclude that neither the identical-cause-of-action nor the privity requirement was satisfied.

2. Different Causes of Action

We begin with the trial court’s determination that appellants have asserted the same cause of action as Friends. For purposes of the doctrine of res judicata, California law identifies a single cause of action as “the violation of a single primary right.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681 [34 Cal.Rptr.2d 386, 881 P.2d 1083].) “The plaintiff’s primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. [Citation.] The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff’s primary right, the defendant’s corresponding primary duty, and the defendant’s wrongful act in breach of that duty.[] [Citation.]” (Federation, supra, 126 Cal.App.4th at p. 1202.)

As a cause of action is framed by the facts in existence when the underlying complaint is filed, res judicata “is not a bar to claims that arise after the initial complaint is filed.” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155 [25 Cal.Rptr.3d 195] (Allied Fire Protection); see Yager v. Yager (1936) 7 Cal.2d 213, 217 [60 P.2d 422].) For this reason, the doctrine may not apply when “there are changed conditions and new facts which were not in existence at the time the action was filed upon which the prior judgment is based. [Citations.]” (McGaffey v. Sudowitz (1961) 189 Cal.App.2d 215, 217-218 [10 Cal.Rptr. 862].) This exception to the doctrine encompasses claims based on rights that arise after the filing of the complaint in the first action, but before judgment is entered. (Yager v. Yager, supra, 7 Cal.2d at p. 217.) As the court explained in Allied Fire Protection: “These rights may be asserted in a supplemental pleading, but if such a pleading is not filed a plaintiff is not foreclosed from asserting the rights in a subsequent action. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be[,] litigated [citations].’ [Citation.]” (Allied Fire Protection, supra, 127 Cal.App.4th at p. 155.)

An instructive application of these principles is found in Yates v. Kuhl (1955) 130 Cal.App.2d 536 [279 P.2d 563] (Yates). There, the plaintiffs obtained the right to a water supply for their land through a deed from the defendants, who owned adjoining land. (Id. at pp. 537-538.) In the plaintiffs’ first action, they alleged that the defendants had wrongfully cut off the water supply by failing to maintain a dam and weir that diverted water onto the plaintiffs’ land. (Id. at p. 538.) Before judgment was entered in the action, the defendants modified the weir so that it denied water to the plaintiffs’ land. (Id. at pp. 538-539.) The plaintiffs made no attempt to assert a new claim in their first action, in which the trial court issued a judgment in their favor; they filed a new action, and again prevailed. (Ibid.) The appellate court rejected the defendants’ contention that the doctrine of res judicata barred the second action, reasoning that the actions involved separate episodes of misconduct resulting in “successive causes of action arising out of the same general subject matter—the right to the water.” (Id. at p. 540.)

Here, as in Yates, Friends’s action and the underlying actions involve distinct episodes of purported noncompliance regarding “the same general subject matter” (Yates, supra, 130 Cal.App.2d at p. 540), namely, the public’s statutory right to an adequate EIR concerning the Kern-Castaic transfer (Pub. Resources Code, §§ 21100, subd. (a), 21151, subd. (a)). After Friends’s petition challenged Castaic’s defective 1999 EIR, the trial court in Friends’s action ordered it decertified and retained jurisdiction until Castaic certified an EIR that complied with CEQA. Friends was permitted to challenge Castaic’s 2004 EIR by motion or supplemental petition in the original action, or by petition in a new action (City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 971 [187 Cal.Rptr. 379]), but it took neither of these alternatives. As the 1999 EIR and 2004 EIR are factually distinct attempts to satisfy CEQA’s mandates and Friends was not required to litigate the 2004 EIR in its original action, we conclude that Friends’s action and the underlying actions involved different causes of action.

Cross-appellants’ reliance on Federation, supra, 126 Cal.App.4th 1180, is misplaced. There, a city certified an EIR concerning amendments to the city’s general plan, and approved the amended general plan. (126 Cal.App.4th at pp. 1188-1190.) After a public interest group sought administrative mandamus regarding the EIR and amendments to the general plan, the trial court rejected the challenges to the EIR, but ultimately issued a writ directing the city to correct the amendments. (Id. at pp. 1190-1191.) When the city did so, the group again sought administrative mandamus, and asserted new challenges to the EIR. (Id. at pp. 1193, 1204.) The appellate court held that the doctrine of res judicata barred their cause of action regarding the EIR. (Id. at pp. 1202-1205.) In so concluding, the court noted that an “injury,” for purposes of determining a primary right, “is defined in part by reference to the set of facts, or transaction, from which the injury arose.” (Id. at p. 1203.) As the group challenged the same EIR and the material facts had not changed, the court determined that the second action involved the same primary right. (Id. at p. 1204.) Here, unlike the situation in Federation, the two actions address materially different EIR’s, and therefore involve distinct causes of action.

3. Lack of Privity

The remaining issue is whether appellants are in privity with Friends. As this court has explained, “[i]n the context of a res judicata determination, privity ‘ “refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] . . . ’ [Citation.] ‘ “[T]he determination of privity depends upon the fairness of binding [a party] with the result obtained in earlier proceedings in which it did not participate. [Citation.] ‘ “Whether someone is in privity with the actual parties requires close examination of the circumstances of each case.” ’ ” ’ [Citation.] ‘This requirement of identity of parties or privity is a requirement of due process of law.’ [Citation.]” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 689-690 [86 Cal.Rptr.3d 39] (Consumer Advocacy Group).)

As Friends undertook its action on behalf of the public, the key question regarding privity is whether Friends adequately acted as appellants’ “ ‘virtual representative.’ ” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1070-1073 [71 Cal.Rptr.2d 77] (Citizens for Open Access).) “A party is adequately represented for purposes of the privity rule ‘if his or her interests are so similar to a party’s interest that the latter was the former’s virtual representative in the earlier action. [Citation.]’ [Citation.] We measure the adequacy of ‘representation by inference, examining whether the . . . party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that. . . party had a strong motive to assert that interest. If the interests of the parties in question are likely to have been divergent, one does not infer adequate representation and there is no privity. [Citations.] If the . . . party’s motive for asserting a common interest is relatively weak, one does not infer adequate representation and there is no privity. [Citation.]’ [Citation.]” (Id. at pp. 1070-1071.) (See Consumer Advocacy Group, supra, 168 Cal.App.4th at p. 692.)

Although Friends and appellants have alleged different causes of action (see pt. C.I., ante), their pursuit of these claims on behalf of the public is sufficient to show a “common interest” in the enforcement of CEQA, for purposes of a privity determination. (See Consumer Advocacy Group, supra, 168 Cal.App.4th at pp. 689-693 [two organizations that alleged distinct causes of action in the public interest under same antipollution statute and against same defendant are nonetheless in privity].) Accordingly, the dispositive question is whether Friends asserted the common interest with adequate vigor.

In examining this question, we look not only at Friends’s allegations in its petition, but at the manner in which Friends conducted and resolved its action. In Citizens for Open Access, some state agencies sued on behalf of the public to secure public access to certain beaches, and entered into a settlement that created public easements. (Citizens for Open Access, supra, 60 Cal.App.4th at pp. 1055-1062.) When a public interest group challenged the settlement in a second action, the trial court ruled that res judicata barred the action. (Id. at p. 1063.) In concluding that the group was in privity with the state agencies in the prior action, the appellate court noted that the agencies had “zealously” pursued the action; in addition, the court determined that “[t]he settlement agreement was the product of a reasonable compromise, and [did] not carry with it even the hint of any abdication of the role of public agent . . . .” (Id. at p. 1072.) Similarly, in Consumer Advocacy Group, an organization sued on behalf of the public under an antipollution statute and entered into a settlement that obliged the defendant to remediate the polluted sites. (Consumer Advocacy Group, supra, 168 Cal.App.4th at p. 692.) As nothing suggested that the organization’s settlement “abandoned its intention to represent the interests of the general public,” we concluded that its litigation displayed a level of care regarding the public’s interest sufficient to create privity with another organization, which had pursued a similar action. (Ibid.) In contrast, when a party’s conduct in an action shows a lack of incentive or resources to litigate a common interest—for example, by failing to appear and thus accepting an unfavorable default judgment—privity is not established. (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 152-153 [46 Cal.Rptr.3d 7] [discussing cases].)

Here, Friends terminated its action through a voluntary dismissal, not through a settlement. In seeking the dismissal and opposing Castaic’s application to vacate the dismissal, Friends stated that it regarded the 2004 EIR as defective, but that it lacked the funds to challenge the 2004 EIR. These statements display an “abdication of the role of public agent” (Citizens for Open Access, supra, 60 Cal.App.4th at p. 1072) and an abandonment of “its intention to represent the interests of the general public” (Consumer Advocacy Group, supra, 168 Cal.App.4th at p. 692). In view of these statements, we cannot infer that the parties are in privity.

Pointing to appellants’ decision to file their petitions in Ventura County rather than intervene in the Friends action, cross-appellants contend that Friends’s explanation for its dismissal was disingenuous. They urge us to find that Friends dismissed its action under an agreement with appellants, who were engaged in “forum shopping.” They further argue that because Friends colluded with appellants in this manner, we should conclude that Friends acted as their representative in dismissing its action.

In advancing this contention, cross-appellants misapprehend our standard of review. The existence of privity ordinarily presents a question of law when the material facts are undisputed. (Victa v. Merle Norman Cosmetics, Inc. (1993) 19 Cal.App.4th 454, 464 [24 Cal.Rptr.2d 117].) Nonetheless, a demurrer based on res judicata is properly sustained only if the pleadings and judicially noticed facts conclusively establish the elements of the doctrine. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [48 Cal.Rptr.2d 87, 906 P.2d 1242].) When the requisite determinations cannot be made on this limited record, the party asserting the defense may attempt to establish them by a motion to dismiss supported by affidavits or in a trial (Garcia v. Garcia (1957) 148 Cal.App.2d 147, 152 [306 P.2d 80]), in which case the trial court’s factual findings are reviewed for the existence of substantial evidence (Best v. Fitzgerald (1947) 81 Cal.App.2d 965, 966-967 [185 P.2d 377]).

Here, the pleadings and judicially noticed facts raise conflicting inferences regarding Friends’s motive for the dismissal, which is critical to the determination of privity. This factual conflict cannot be resolved on demurrer. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, supra, 91 Cal.App.4th at p. 882 [“The appropriate setting for resolving facts reasonably subject to dispute is the adversary hearing.”].) Nor did the trial court do so. We decline to resolve this factual dispute for the first time on appeal.

Pointing to Mooney v. Caspari (2006) 138 Cal.App.4th 704 [41 Cal.Rptr.3d 728] (Mooney), cross-appellants contend that for purposes of privity, the adequacy of representation is determined solely by the alignment of the parties’ interests, regardless of the purported representative’s conduct. We disagree. In Mooney, the plaintiff’s business partner unsuccessfully sued his counsel for malpractice related to a contract in which the plaintiff and the partner had identical interests. (Mooney, supra, 138 Cal.App.4th at p. 713.) The plaintiff later sued his own lawyer for failing to file a timely malpractice action against his partner’s counsel, who the plaintiff alleged had also represented him regarding the contract. (Id. at pp. 713-716.)

In holding that the judgment in the partner’s malpractice action barred the plaintiff’s suit, the Mooney court concluded that the partner had adequately represented the plaintiff in the prior action, as they shared interests and motives, and the plaintiff had vigorously aided his partner in the action. (Mooney, supra, 138 Cal.App.4th at pp. 719-720.) The court rejected the plaintiff’s contention that the representation was inadequate due to the partner’s failure to offer some meritorious arguments and evidence, reasoning that privity does not depend on the identity of evidence or arguments, or on the result obtained. (Id. at p. 721.) However, nothing in Mooney suggests that a party may expressly abandon its role as representative while preserving privity. As we have explained, in dismissing its action, Friends stated that it could no longer act as a representative. In sum, the trial court properly overruled cross-appellants’ demurrers on the grounds of res judicata.

B. Adequacy of the 2004 EIR

We turn to the parties’ contentions regarding the 2004 EIR. Under CEQA, an EIR must be prepared before a public agency approves any project that may have a significant effect on the environment. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 687-688 [125 Cal.Rptr.2d 745].) CEQA and its related regulations—ordinarily called “Guidelines” (Cal. Code Regs., tit. 14, § 15001 et seq.)—define an EIR as “an informational document” whose purpose “is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.” (Pub. Resources Code, § 21061; see Guidelines, § 15003, subds. (b)-(e).) As explained below, we discern no deficiency in the 2004 EIR.

1. Standard of Review

“In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citations.]” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-27 [53 Cal.Rptr.3d 821, 150 P.3d 709], fn. omitted (Vineyard).)

“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the substantive CEQA issues . . . by independently determining whether the administrative record demonstrates any legal error by the [agency] and whether it contains substantial evidence to support the [agency]’s factual determinations.” (Vineyard, supra, 40 Cal.4th at p. 427.)

2. Appellants’ Contentions

We begin with appellants’ challenges to the 2004 EIR. Their principal contention is that only DWR may properly conduct an environmental review of the Kem-Castaic transfer; in addition, they argue that the 2004 EIR misrepresents the relevance of the pending Monterey Agreement EIR to the Kem-Castaic transfer, and contains related errors regarding the project and its alternatives.

a. Relationship of DWR’s Review of Monterey Agreement to Kern-Castaic Transfer

Appellants contend that Castaic, in preparing the 2004 EIR, has usurped DWR’s duties as the lead agency conducting the environmental review of the Monterey Agreement. Under CEQA, a lead agency is “the public agency which has the principal responsibility for carrying out or approving a project which may have significant effect upon the environment.” (Pub. Resources Code, § 21067.) The crux of appellants’ contention is that DWR must examine the transfer because it is a part of the project under review by DWR, namely, the Monterey Agreement and the contractual regime implemented under it. For the reasons explained below, we disagree.

CEQA imposes requirements regarding (1) the time at which a project is defined and (2) the breadth of the definition. Because the EIR is intended to inform an agency’s decision regarding the project, CEQA requires that “[a]n accurate, stable and finite description” of the project be established “early enough in the planning stages of [the] project to enable environmental concerns to influence the project’s program and design, yet late enough to provide meaningful information for environmental assessment.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 738 [270 Cal.Rptr. 650].) Moreover, to enhance protection of the environment, CEQA defines “project” broadly to encompass “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Guidelines, § 15378, subds. (a), (c).) This definition precludes “piecemeal review which results from ‘chopping a large project into many little ones— each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences.’ ” (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 370 [7 Cal.Rptr.2d 307], quoting Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284 [118 Cal.Rptr. 249, 529 P.2d 1017].)

Reconciling these requirements is problematic when a project lays the foundation for subsequent—but perhaps uncertain—activity. In Laurel Heights, supra, 47 Cal.3d 376, our Supreme Court examined the appropriate balance between these competing concerns in addressing the extent to which an EIR must encompass “future action related to the proposed project.” (Id. at p. 395.) There, the University of California bought an office building with the long-term goal of fully occupying it, but its EIR considered only the consequences of operating a research facility in a portion of the building. (Id. at pp. 388-390.) In concluding that the EIR was defective, the court stated: “[A]n EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project. Of course, if the future action is not considered at that time, it will have to be discussed in a subsequent EIR before the future action can be approved under CEQA.” (Id. at p. 396.) Regarding the first circumstance, the court elaborated: “We do not require prophecy. . . . Nor do we require discussion in the EIR of specific future activity that is merely contemplated or a gleam in a planner’s eye.” (Id. at p. 398.)

We conclude that DWR’s environmental review of the Monterey Agreement does not encompass the Kern-Castaic transfer. To begin, nothing before us suggests that the Monterey Agreement, viewed as a CEQA project, included the Kern-Castaic transfer when the original Monterey Agreement EIR was prepared and certified in 1995. The Monterey Agreement, as executed in December 1994, laid the foundation for a new contractual regime between DWR and its contractors, and freed water provided to agricultural suppliers for transfer to urban suppliers. However, the specific contractual developments for the Kern-Castaic transfer—which involves some of this water—culminated in March 1999, shortly before the certification of Castaic’s 1999 EIR. As the Kem-Castaic transfer was no more than “a gleam in a planner’s eye” at the time of the Monterey Agreement, the transfer fell outside the original Monterey Agreement EIR, and was properly considered in a separate EIR. (Laurel Heights, supra, 47 Cal.3d at pp. 396-398.)

We also conclude that the decertification of the 1995 Monterey Agreement EIR and its aftermath have not brought the transfer within the compass of the new Monterey Agreement EIR. At the outset, we note that neither the decision in Planning & Conservation League—which directed the decertification of the 1995 Monterey Agreement EIR—nor the subsequent Monterey Plus settlement agreement purports to place the transfer under DWR’s review. However, these facts alone do not settle whether the events following the decertification of the 1995 Monterey Agreement have operated to bring the transfer within the scope of DWR’s review.

After the 1995 Monterey Agreement EIR and Castaic’s 1999 EIR were vacated as defective, the Monterey Amendments and the Kern-Castaic transfer remained operative pending the preparation of new EIR’s. Generally, the fact that a project is allowed to proceed while an adequate EIR is prepared does not diminish CEQA’s requirements: the agency preparing the new EIR “must begin anew the analytical process required under CEQA,” and may not rely on “post hoc rationalizations” in approving the project. (Laurel Heights, supra, 47 Cal.3d at pp. 424-425.) Accordingly, we must examine whether the implementation of the transfer prior to the certification of DWR’s Monterey Agreement EIR placed the transfer within the project under review by the DWR.

We find guidance on this question from Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712 [12 Cal.Rptr.2d 785] (Del Mar Terrace), disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576, footnote 6 [38 Cal.Rptr.2d 139, 888 P.2d 1268]. In that case, the California Department of Transportation (Caltrans) proposed to build a highway that would form part of the state highway system, and a city joined Caltrans in planning a segment of the highway within the city’s jurisdiction. (Del Mar Terrace, at pp. 720-721.) When lack of funding and other problems hindered the highway’s development, the city, acting as lead agency, certified an EIR for the highway segment. (Id. at pp. 721-725.) The appellate court concluded that the EIR did not constitute improper “piecemeal” review under CEQA, reasoning that the highway segment had “substantial independent utility” (that is, “local utility” independent of the full highway), and that uncertainties existed regarding the ultimate completion of the full highway. (Del Mar Terrace, at pp. 731-737.) The court stated: “Where . . . environmental review of one project includes in general terms discussion of the potential effects of an anticipated future project, which is still contingent upon the happening of events which are currently outside the powers of the decision makers to cause, we do not believe such an EIR can be said to have failed to fulfill its purpose of providing adequate, complete, and good faith efforts at full disclosure of information about the effect which the proposed project is likely to have on the environment.” (Id. at pp. 736-737.)

Here, as in Del Mar Terrace, the Kern-Castaic transfer has significant independent or local utility, in view of its benefits to Castaic’s service area and relative autonomy from the Monterey Agreement. As we elaborate below (see pt. B.2.C., post), although the Monterey Agreement, in fact, facilitated the transfer, there is substantial evidence (1) that the transfer could have been implemented under the pre-Monterey Agreement contractual regime, and (2) that the parties intend to continue the transfer, regardless of the outcome of DWR’s environmental review of the Monterey Agreement. Moreover, as explained below, Castaic’s 2004 EIR adequately reflects the potential environmental effects of the Monterey Agreement, the approval of which is “outside [Castaic’s] powers” (Del Mar Terrace, supra, 10 Cal.App.4th at p. 736), as well as the controversy attached to the transfer arising from DWR’s review.

Appellants suggest that in Friends I, this court determined that the Kern-Castaic transfer was properly part of the project under DWR’s review. They are mistaken. In addressing whether Castaic’s 1999 EIR tiered off the original Monterey Agreement EIR, we placed special emphasis on the 1999 EIR’s express admission that it did so. (Friends I, supra, 95 Cal.App.4th at p. 1386.) We also noted that the 1995 Monterey Agreement EIR characterized itself as a “ ‘program’ EIR,” and that the 1999 EIR stated that the transfer might be viewed as one of the projects “ ‘evaluated on a programmatic basis in the Monterey Agreement EIR.’ ” (Id. at pp. 1377, 1384.) However, as we did not examine whether the Monterey Amendments, viewed as a CEQA project, encompassed the transfer, our decision contains no determination on the matter. (People v. Banks (1993) 6 Cal.4th 926, 945 [25 Cal.Rptr.2d 524, 863 P.2d 769] [language contained in a judicial opinion is “ ‘ “to be understood in the light of the facts and issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citation.]” ’ ”].)

Appellants contend that CEQA’s demand for informed decisionmaking mandates either (1) that DWR conduct the environmental review of the transfer or (2) that Castaic await the outcome of DWR’s review of the Monterey Agreement before approving the transfer. This contention fails in light of Vineyard, supra, 40 Cal.4th 412. There, a county approved an EIR for a real estate development. (Id. at pp. 421-424.) The EIR lacked a full analysis of future water supplies, and stated that any such analysis must await the environmental review of a pending master plan for the supply of water to the area encompassing the development. (Id. at p. 440.) In concluding that the EIR improperly tiered off a future EIR for the master plan, our Supreme Court explained that CEQA obliged the county to assess the master plan’s environmental impact in the development’s EIR, even if this “might result in subsequent duplication,” or, alternatively, to defer action until the master plan had been reviewed and approved. (40 Cal.4th at pp. 440-441.) In view of Vineyard, Castaic could properly certify the 2004 EIR prior to the new Monterey Agreement EIR, provided that the 2004 EIR adequately assesses the environmental impact of the Monterey Agreement, to the extent necessary for a fully informed decision regarding the Kern-Castaic transfer. As explained below (see pt. B.2.C., d. & e., post), we see no deficiencies in the 2004 EIR.

b. Lead Agency

Appellants contend that DWR, not Castaic, is the appropriate lead agency to conduct a review of the Kern-Castaic transfer. Generally, “the lead agency plays a pivotal role in defining the scope of environmental review, lending its expertise in areas within its particular domain, and in ultimately recommending the most environmentally sound alternative.” (Planning and Conservation League, supra, 83 Cal.App.4th at p. 904, quoting Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at pp. 736-737.) Appellants contend that Castaic lacks the requisite expertise, as the 2004 EIR relies on DWR’s computer models regarding SWP water supplies in assessing the three scenarios relevant to the transfer (that is, the scenarios based on water allocations with and without the Monterey Amendments). In addition, they argue that DWR has superior expertise regarding the scenarios because they hinge on the implementation of the Monterey Agreement, for which DWR is conducting the environmental review. We disagree.

Under CEQA, when a project involves two or more public agencies, ordinarily only one agency can serve as the lead agency. (Guidelines, §§ 15050, 15051.) CEQA thus distinguishes lead agencies from responsible agencies: whereas the lead agency has “principal responsibility” for the project, a responsible agency is “a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.” (Pub. Resources Code, §§ 21067, 21069.) Regarding this distinction, the CEQA guidelines provide that when a project involves two or more public agencies, the agency “carrying] out” the project “shall be the lead agency even if the project [is] located within the jurisdiction of another public agency.” (Guidelines, § 15051, subd. (a).)

Under these principles, courts have concluded that the public agency that shoulders primary responsibility for creating and implementing a project is the lead agency, even though other public agencies have a role in approving or realizing it. (Eller Media Co. v Community Redevelopment Agency (2003) 108 Cal.App.4th 25, 45-46 [133 Cal.Rptr.2d 324] [community agency charged with responsibility for redevelopment measures within designated area was lead agency regarding billboard placement, even though city issued building permits for billboards]; Friends of Cuyamaca Valley v. Lake Cuyumaca Recreation & Park Dist. (1994) 28 Cal.App.4th 419, 426—429 [33 Cal.Rptr.2d 635] [state agency that determined duck hunting policy, rather than wildlife district that enforced it, was lead agency regarding duck hunting policy]; City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 971-973 [3 Cal.Rptr.2d 643] [state agency that created pesticide pollution control plan, rather than water district that enforced it, was lead agency regarding plan].)

We agree with the trial court that Castaic, rather than DWR, has “carried out” the Kem-Castaic transfer within the meaning of CEQA (Guidelines, § 15051, subd. (a)). As the trial court remarked, “[t]he . . . transfer is a project separate in time from the Monterey Amendments, now Monterey Plus. The core of the project is a local transfer of water between Castaic and Wheeler Ridge. Castaic alone had the responsibility to determine the water needs of its service area and to obtain the necessary water for those needs. Castaic negotiated and entered into the transfer contract with Wheeler Ridge. Castaic performed the contract by obtaining private investors who paid . . . [for] Wheeler Ridge’s water, and by taking delivery from DWR.” As the trial court noted, the fact that DWR has approved the transfer and supplies the water does not make it the lead agency, as DWR is obliged by statute to facilitate such transfers (Wat. Code, § 109).

We see no error in the trial court’s determinations, which establish that Castaic is better positioned than DWR to assess the environmental impact of the transfer. Although DWR approved the transfer and cooperates in its implementation by supplying water (and information about water supplies), Castaic is the project’s prime mover. Moreover, because Wheeler Ridge would receive the underlying water from the Delta in the absence of the transfer, the transfer’s principal impacts tend to fall within Castaic’s service area. In addition, as explained above (see pt. B.2.a., ante), the fact that DWR is preparing the Monterey Agreement EIR does not preclude Castaic from reviewing the transfer, despite its relationship to the Monterey Amendments. Indeed, DWR, which is charged with the preparation of the Monterey Agreement EIR, agrees that Castaic is the correct lead agency for the transfer.

Planning & Conservation League, relied upon by appellants, does not hold otherwise. There, the appellate court concluded that DWR’s “statewide perspective and expertise” as manager of the SWP made it the “logical choice” to assess the environmental impacts of the Monterey Agreement, which affects the SWP as a whole. (Planning and Conservation League, supra, 83 Cal.App.4th at pp. 906-907.) In contrast, Castaic’s preeminent role regarding the transfer renders it the logical choice for lead agency, in view of the transfer’s confined scope.

c. Significance of the Pending Monterey Agreement EIR

Appellants contend that the 2004 EIR’s project definition improperly represents the transfer as a fait accompli prior to adequate CEQA review. The 2004 EIR states that the project “currently is being implemented by an amendment to the SWP water supply contracts of [Castaic] and [Kern] executed in 1999”; that the transfer was “contractually completed in 1999”; and that “[n]o permits and other approvals would be required other than the certification of this EIR.” Pointing to these statements, appellants argue that the 2004 EIR improperly describes the transfer as final, despite its relationship to the outcome of DWR’s assessment of the Monterey Agreement. For the reasons explained below, we reject their contention.

Generally, “ ‘[t]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA.’ [Citation.]” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-722 [32 Cal.Rptr.2d 704], quoting Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 829 [173 Cal.Rptr. 602].) Under CEQA’s standards for the adequacy of EIR’s, an EIR must “be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences.” (Guidelines, § 15151.) When an agency preparing an EIR is obliged to examine future events that are difficult to forecast, the agency “must use its best efforts to find out and disclose all that it reasonably can.” (Guidelines, § 15144.) To the extent an EIR addresses controversial matters implicating expertise, the EIR “should summarize the main points of disagreement.” (Guidelines, § 15151.)

In examining an EIR under these standards, we “look[] not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151; see Laurel Heights, supra, 47 Cal.3d at p. 406.) “Our role . . . , as a reviewing court, is not to decide whether [the agency] acted wisely or unwisely, but simply to determine whether the EIR contained sufficient information about a proposed project, the site and surrounding area and the projected environmental impacts arising as a result of the proposed project or activity to allow for an informed decision . . . .” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th at p. 718.)

When an EIR omits information, “[t]he relevant inquiry is whether there has been ‘a prejudicial abuse of discretion.’ [Citation.] The absence of information in an EIR ‘does not per se constitute a prejudicial abuse of discretion. [Citation.] A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. [Citation.]’ [Citation.] There is ‘no presumption that error is prejudicial.’ [Citation.]” (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 748 [22 Cal.Rptr.2d 618].)

In SCOPE, supra, 157 Cal.App.4th 149, the appellate court addressed an issue similar to that before us. There, the County of Los Angeles certified an EIR for a real estate development project whose water supply derived from the Kern-Castaic transfer. (Id. at pp. 152-153.) The EIR described the legal history surrounding the Monterey Agreement and the transfer through to the Monterey Plus settlement agreement; characterized the transfer as a “permanent acquisition” of water; and asserted that the transfer could have occurred in the absence of the Monterey Agreement. (Id. at pp. 155-156.)

The EIR further stated: “ ‘Although [Castaic is] not a party [to the Monterey Agreement EIR litigation], an adverse final judgment invalidating the Monterey Agreement could affect [Castaic’s] completed acquisition of the 41,000 [acre-feet], which could in turn impair [Castaic’s] supply of SWP water through its contracts with DWR and other SWP contractors. Nevertheless, [Castaic] believes that an adverse outcome in the Monterey Agreement litigation is not likely to adversely affect [Castaic’s] water supplies over the long-term because (a) [Castaic] believes that such a result is unlikely to “unwind” executed and completed agreements with respect to the permanent transfer of SWP water amounts; (b) existing SWP water supply contract provisions allow such transfers (without the need for the Monterey Agreement); and (c) existing law enables [Castaic] to enter into contracts outside the context of the Monterey Agreement.’ ” (SCOPE, supra, 157 Cal.App.4th at pp. 155-156.)

The court in SCOPE rejected the contention that the EIR inadequately disclosed the extent to which the transfer was “not final and permanent.” (SCOPE, supra, 157 Cal.App.4th at pp. 156-157, 160.) The court stated; “[T]he EIR discloses that the Monterey Agreement litigation makes the Kern-Castaic transfer legally uncertain. The EIR states that a judgment invalidating the Monterey Agreement could affect Castaic’s acquisition of the 41,000 acre feet of water. The EIR concludes, h