Aqualliance v. U.S. Bureau of Reclamation (287 F. Supp. 3d 969, 2018)

United States District Court for the Eastern District of California 2018-02-15

Conservation

Citations

Full opinion text

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs, various water resource management and conservation organizations, challenge Defendants' "10-year water transfer program to move water from sellers located upstream of the Sacramento/San Joaquin Delta ('Delta') to willing buyers south of the Delta" (the "Project"). ECF No. 16, First Amended Complaint ("FAC") at ¶ 2. Specifically, Plaintiffs assert Reclamation's and the Authority's creation and approval of the Project's Final Long-Term Water Transfers Environmental Impact Statement/Environmental Impact Report ("FEIS/R") violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , the Central Valley Project Improvement Act ("CVPIA"), Public Law 102-575 , and the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code §§ 21000 et seq. Plaintiffs also assert FWS's approval of the Project's Final Biological Opinion ("BiOp") and Incidental Take Statement ("ITS") violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. FAC at ¶ 1.

Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 45, 48, 49, 50. The parties did not request a hearing on the motions and the Court did not set one. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART each of the pending motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Reclamation manages the Central Valley Project ("CVP") (Administrative Record ("AR") 25427), one of "the largest and most important water projects in the United States." San Luis & Delta-Mendota Water Auth. v. Jewell , 747 F.3d 581, 591 (9th Cir. 2014) (" San Luis v. Jewell "). "The CVP consists of a series of dams[;] ... 21 reservoirs; 11 hydropower plants; and 500 miles of canals and aqueducts," id. at 594 (citation omitted), that deliver irrigation water to the Sacramento and San Joaquin Valleys, and water to cities and industries in Sacramento, the San Joaquin Valley, and the east and south San Francisco Bay Areas. AR 25427. The key purpose of the CVP is "to transfer water from the Sacramento River [in Northern California] to water-deficient areas in the San Joaquin Valley and from the San Joaquin River to the southern regions of the Central Valley." San Luis v. Jewell , 747 F.3d at 591 (citation omitted).

The Project "extends from Shasta County in the northern portion of the Sacramento Valley to Kings County in the southern portion of the San Joaquin Valley and extends as far west as Santa Clara County." AR 16700. The Project's stated purpose "is to facilitate and approve voluntary water transfers from willing sellers upstream of the Delta to water users south of the Delta and in the San Francisco Bay Area" when those sales use CVP and/or State Water Project ("SWP") infrastructure. AR 25368, 14786.

These transfers, which have occurred for decades (AR 25367), are proposed as a means to address the "severe reduction in CVP water supplies" that occur "during dry hydrological years" in the San Francisco Bay Area and the San Joaquin Valley. AR 25365, 25367. The transferred water would be made available through groundwater substitution, cropland idling, crop shifting, reservoir release, and conservation. AR 14786, 25375-25377. The Project would make up to 511,094 acre-feet ("AF") of water available for transfer each year through these measures, depending on hydrological conditions. AR 25461. Buyers and sellers are required to submit CVP transfer proposals to Reclamation, who must approve them. AR 25436; CVPIA § 3405(a)(1). Similarly, transfer proposals with State Water Contractors ("SWC") and transfers that use SWP facilities require approval by the California Department of Water Resources ("DWR"). AR 25444.

This case concerns the FEIS/R issued by Reclamation and the Authority, and the BiOp issued by FWS, which evaluate the Project's potential environmental and species-related impacts through 2024. AR 25365 (FEIS/R); AR 047711 (BiOp). The FEIS/R's stated purpose is to "provide a streamlining tool by providing a comprehensive, long-range, project-level view of the potential environment impacts associated with a range of potential transfer activities over a ten-year period, to both expedite approval of water transfers and to reduce participant uncertainty." AR 27451.

Plaintiffs contend, and Defendants dispute, that: "(1) the FEIS/R violates NEPA, (2) the FEIS/R violates CEQA, (3) the FWS's BiOp and [ITS] are arbitrary and capricious, and (4) Reclamation arbitrarily and capriciously failed to re-initiate ESA consultation for impacts to special-status aquatic species" in violation of Section 7 of the ESA. ECF No. 45 at 12.

III. STANDARDS OF DECISION

A. NEPA

NEPA requires that federal agencies prepare "a detailed statement by the responsible official on ... the environmental impact" of any federal actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) ; Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin. , 538 F.3d 1172, 1185 (9th Cir. 2008). NEPA's purpose is twofold: (1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public. Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; Ctr. for Biological Diversity , 538 F.3d at 1185. "NEPA is a procedural statute," designed to ensure "that federal agencies take a 'hard look' at the environmental consequences of their proposed actions before deciding to proceed." Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1051 (9th Cir. 2012) (quoting Methow Valley , 490 U.S. at 350-51, 109 S.Ct. 1835 ). "Although NEPA establishes procedures by which agencies must consider the environmental impacts of their actions, it does not dictate the substantive results of agency decision making." Id. (citing Methow Valley , 490 U.S. at 350, 109 S.Ct. 1835 ). "A court generally must be at its most deferential when reviewing scientific judgments and technical analyses within the agency's expertise under NEPA." Id. (internal citations omitted). The Council of Environmental Quality ("CEQ") has promulgated regulations governing how NEPA is implemented along with specific instructions regarding the preparation of EISs. 40 C.F.R. §§ 1505.1 - 1508.28.

B. APA

The Administrative Procedure Act's ("APA"), 5 U.S.C. §§ 701 - 06, standard of review applies to Plaintiffs' NEPA and ESA claims. San Luis v. Jewell , 747 F.3d at 601. The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Under the APA, the Court shall "hold unlawful and set aside agency action, findings, and conclusions found to be":

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

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(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [and/or]

(D) without observance of procedure required by law[.]

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Id. § 706(A). When assessing claims pursuant to the APA, a court, reviewing only the AR, must determine "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella , 459 F.Supp.2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985) ). In other words, a court's "review is guided by whether the agency's analysis is reasonable and offers sufficient detail to ensure that environmental consequences have been fairly evaluated." Protect Our Communities Found. v. Jewell , 825 F.3d 571, 582 (9th Cir. 2016) (citations and quotation marks omitted).

A reviewing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated in part on other grounds as recognized in Califano v. Sanders , 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Although a court's inquiry must be thorough, the standard of review is highly deferential; the agency's decision is "entitled to a presumption of regularity," and a court may not substitute its judgment for that of the agency. Id. at 415-16, 91 S.Ct. 814.

Courts should defer to the agency on matters within the agency's expertise unless the agency completely failed to address a factor that was essential to making an informed decision. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. , 422 F.3d 782, 798 (9th Cir. 2005). A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency's] action." River Runners for Wilderness v. Martin , 593 F.3d 1064, 1070 (9th Cir. 2010). As the Ninth Circuit explained in River Runners :

In conducting an APA review, the court must determine whether the agency's decision is "founded on a rational connection between the facts found and the choices made ... and whether [the agency] has committed a clear error of judgment." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife , 273 F.3d 1229, 1243 (9th Cir. 2001). "The [agency's] action ... need only be a reasonable, not the best or most reasonable, decision." Nat'l Wildlife Fed'n v. Burford , 871 F.2d 849, 855 (9th Cir. 1989).

River Runners , 593 F.3d at 1070. Reviewing courts must be at their "most deferential" when an agency makes predictions, "within its area of special expertise, at the frontiers of science." Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council , 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). In particular, an agency's "scientific methodology is owed substantial deference." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1066 (9th Cir. 2004), superseded on other grounds by regulation as stated in Defenders of Wildlife v. Zinke , 856 F.3d 1248, 1260 (9th Cir. 2017).

But "the deference accorded an agency's scientific or technical expertise is not unlimited." Brower v. Evans , 257 F.3d 1058, 1067 (9th Cir. 2001). Deference is not owed if "the agency has completely failed to address some factor consideration of which was essential to making an informed decision," id. (internal citation and quotation omitted), and courts are not required to defer to an agency conclusion that runs counter to that of other agencies or other individuals with specialized expertise in a particular technical area. See, e.g. , Am. Tunaboat Ass'n v. Baldrige , 738 F.2d 1013, 1016-17 (9th Cir. 1984) (agency decision under the Marine Mammal Protection Act was not supported by substantial evidence because agency ignored data that was product of "many years' effort by trained research personnel").

C. CEQA

Much like NEPA, CEQA requires California public agencies to conduct an environmental review of discretionary projects they carry out or approve, and to prepare an Environmental Impact Report ("EIR") for any project that may have a significant effect on the environment. Cal. Pub. Res. Code §§ 21151, 21100, 21080. Generally, judicial review in an action to set aside an agency's decision under CEQA "shall extend only to whether there was a prejudicial abuse of discretion." Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova , 40 Cal. 4th 412, 426, 53 Cal.Rptr.3d 821, 150 P.3d 709 (2007) (citation and quotation marks omitted). "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." Id. (citation and quotation marks omitted). A reviewing court "does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document." Laurel Heights Improvement Ass'n v. Regents of Univ. of California , 47 Cal. 3d 376, 392, 253 Cal.Rptr. 426, 764 P.2d 278 (1988), as modified on denial of reh'g (Jan. 26, 1989) (citation and quotation marks omitted).

"[A] reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts." Vineyard , 40 Cal. 4th at 435, 53 Cal.Rptr.3d 821, 150 P.3d 709. The Court reviews "de novo whether the agency has employed the correct procedures, scrupulously enforc[ing] all legislatively mandated CEQA requirements." Id. (citation and quotation marks omitted). For instance, "[w]hen an agency fails to include information mandated by CEQA in the environmental analysis, the agency fails to proceed in a manner required by law." San Diego Citizenry Group v. Cty. of San Diego , 219 Cal. App. 4th 1, 12, 161 Cal.Rptr.3d 447 (2013). But "where the agency includes the relevant information, but the [factual] adequacy of the information is disputed, the question is one of substantial evidence." Id. (emphasis in original). "Substantial evidence" is defined as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made ... is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative [or] evidence which is clearly erroneous or inaccurate ... does not constitute substantial evidence." Save Our Peninsula Comm. v. Monterey Cnty. Bd. of Supervisors , 87 Cal. App. 4th 99, 116-17, 104 Cal.Rptr.2d 326 (2001). "A court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable." Laurel Heights , 47 Cal. 3d at 393, 253 Cal.Rptr. 426, 764 P.2d 278.

"The determination of whether an agency has proceeded in the manner required by law is based on a review of the record as a whole: Where some facts show a failure to comply, but the record as a whole supports a finding of compliance, courts should find compliance based on the evidence in the whole record." San Diego Citizenry , 219 Cal. App. 4th at 12-13, 161 Cal.Rptr.3d 447 (citation and quotation marks omitted). Further, an EIR is presumed adequate under CEQA, and the party challenging the EIR bears the burden of proving its inadequacy. See Rialto Citizens for Responsible Growth v. City of Rialto , 208 Cal. App. 4th 899, 924-25, 146 Cal.Rptr.3d 12 (2012). Thus, "an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden." Defend the Bay v. City of Irvine , 119 Cal. App. 4th 1261, 1266, 15 Cal.Rptr.3d 176 (2004).

D. Summary Judgment

The APA's standard of review applies to Plaintiffs' NEPA claim and ESA Section 7(a)(2) challenge to the substance of the BiOp. San Luis v. Jewell , 747 F.3d at 601. Because review under the APA of such a claim would be limited to the AR, a slightly modified approach to summary judgment is applied, whereby the Court determines "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella , 459 F.Supp.2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985) ).

As a matter of law, a more traditional summary judgment burden-shifting approach could apply to Plaintiffs' Section 7(a)(2) failure to consult claim(s). However, in practice, the parties present this entire case as one that can be resolved on cross motions for summary judgment based upon the Court's review of the AR. See generally ECF No. 35 (Joint Scheduling Report); see also ECF No. 45 at 6. Judicial review of claims brought under CEQA is also limited to the administrative record.

IV. ANALYSIS

The administrative record in this case is enormous-the FEIS/R alone is over 1,000 pages-and, understandably, the parties' briefs are lengthy, with dozens of issues raised under CEQA, NEPA, and the ESA. While the briefs are generally cogent, they are not flawlessly organized, making the task of teasing out the various threads of argument all the more difficult. The Court has spent many hundreds of hours attempting to address the matters raised as thoroughly as is reasonably possible. It has no intention of doing it twice.

A. CEQA/NEPA Claims

1. CEQA Lead Agency

For purposes of CEQA, the Authority served as the lead agency for preparation of the EIS/EIR. Plaintiffs argue that the Authority was not the proper CEQA lead agency and that, instead, DWR should have prepared and certified the FEIS/R. ECF No. 45 at 8-12.

"Under CEQA, a lead agency is responsible for determining whether an EIR is required for a project.... The lead agency, with responsibility for the process by which the EIR is written, approved and certified, plays a crucial role." Planning & Conservation League v. Dep't of Water Res. , 83 Cal. App. 4th 892, 903, 100 Cal.Rptr.2d 173 (2000), as modified on denial of reh'g (Oct. 16, 2000) (" PCL I ") (internal quotation and citation omitted).

The lead agency must independently participate, review, analyze and discuss the alternatives in good faith. Moreover, the agency's opinion on matters within its expertise is of particular value. As the process continues, the lead agency may determine an environmentally superior alternative is more desirable or mitigation measures must be adopted. In sum, 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.

Id. at 904, 100 Cal.Rptr.2d 173 (internal citations and quotations omitted).

California Public Resources Code § 21067 defines a " '[l]ead agency' " as "the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment." In contrast, a " '[r]esponsible agency' means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project." Id. , § 21069. "Where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing an EIR or negative declaration for the project. This agency shall be called the lead agency." 14 Cal. Code Regs. § 15050(a).

By regulation, California's Natural Resources Agency promulgated "Guidelines for Implementation of the California Environmental Quality Act" ("CEQA Guidelines"), set forth in Title 14 of the California Code of Regulations. 14 Cal. Code Regs. § 15000 et seq. Among other things, the CEQA Guidelines provide criteria for identifying which agency shall act as the lead agency where two or more public agencies are involved in the process. Under such circumstances, the determination of which agency will be the lead agency is governed by the following criteria:

(a) If the project will be carried out by a public agency, that agency shall be the lead agency even if the project would be located within the jurisdiction of another public agency.

(b) If the project is to be carried out by a nongovernmental person or entity, the lead agency shall be the public agency with the greatest responsibility for supervising or approving the project as a whole.

(1) The lead agency will normally be the agency with general governmental powers, such as a city or county, rather than an agency with a single or limited purpose such as an air pollution control district or a district which will provide a public service or public utility to the project.

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(c) Where more than one public agency equally meet the criteria in subdivision (b), the agency which will act first on the project in question shall be the lead agency.

(d) Where the provisions of subdivisions (a), (b), and (c) leave two or more public agencies with a substantial claim to be the lead agency, the public agencies may by agreement designate an agency as the lead agency. An agreement may also provide for cooperative efforts by two or more agencies by contract, joint exercise of powers, or similar devices.

CEQA Guidelines § 15051.

Plaintiffs rely on PCL I. In that case, the Central Coast Water Authority ("CCWA") served as the CEQA Lead Agency for a project in which "DWR and agricultural urban contractors agreed to a statement of 14 principles, which came to be known as the Monterey Agreement. One of the major goals of the Monterey Agreement was to increase water management flexibility, providing more tools to local water agencies to maximize existing facilities." PCL I , 83 Cal. App. 4th at 901, 100 Cal.Rptr.2d 173 (internal citation and quotation omitted). Among other things, as part of the Monterey Agreement, DWR agreed to transfer control of a state-owned property in Kern County slated for use as a water bank ("Kern Water Bank") to agricultural contractors, provide for permanent sales of water among contractors, provide more flexibility in using certain reservoirs for local use, and provide new rules for transportation of non-SWP water to contractors and for storing water outside a contractor's service area. See id. Purported advantages of the Monterey Agreement to individual water contractors included increased water supply reliability through water transfers, water banking, storage outside service areas, easier transport of non-project water, permanent sales of water among contractors, and use of the Kern Water Bank by agricultural and urban water contractors. See id.

PCL I held that CCWA was not the proper CEQA Lead Agency because "CCWA, a regional water contractor, does not have principal responsibility for implementing the Monterey Agreement, although it may have a substantial state in seeing it implemented." Id. at 906, 100 Cal.Rptr.2d 173. "By contrast, DWR, the state agency charged with the statutory responsibility to build, manage, and operate the SWP, clearly retains the principal responsibility to execute amended long-term contracts, to convey [certain properties planned for use as water banks], and to facilitate the water transfers allowed under the Monterey Agreement." Id. PCL I concluded that DWR's "statewide perspective and expertise," in light of the fact that "allocation of water to one part of the state has potential implications for distribution throughout the system," made DWR the "logical choice for lead agency because it has principal responsibility for implementation of an agreement that substantially restructures distribution of water throughout the state." Id. at 907, 100 Cal.Rptr.2d 173.

Plaintiffs cite PCL I in support of their assertion that the Authority "does not have principal responsibility for implementing" the Project-a statewide transfer program between 28 seller agencies, 12 buyer agencies, [ ] DWR, and [Reclamation]." ECF No. 45 at 9 (citing AR 25370-72 (listing buyer and seller agencies) ). The Authority's boundaries are coextensive with its 29 member water service contractors within the western San Joaquin Valley and San Benito and Santa Clara counties. These boundaries do not encompass any of the participating seller agencies, nor two key buyer agencies: the East Bay Municipal Utility District and the Contra Costa Water District. Furthermore, the Authority's purposes and powers are restricted by law to providing benefits to its member organizations. Moreover, the FEIS/R acknowledges that the transfers "require approval from Reclamation and/or [DWR], which necessitate compliance with NEPA and CEQA." AR 25368. It is undisputed that Reclamation serves as the "action agency"-the rough equivalent of a lead agency under CEQA-for purposes of NEPA compliance. See AR 25365. Plaintiffs insist that DWR should play a parallel role for purposes of CEQA because "[f]or water conveyed through the SWP system, DWR must [ ] determine if the transfer can be made without injuring any legal user of water and without unreasonably affecting fish wildlife or other instream beneficial uses and without unreasonably affecting the overall economy or environment of the county from which the water is being transferred." AR 25444.

The Court does not believe PCL I is analogous to the present case. Among other things, the Project does not involve a statewide policy document that implicates in significant ways the way DWR operates and contracts with water users. The Court believes that Center for Biological Diversity v. Cty. of San Bernardino , 247 Cal. App. 4th 326, 201 Cal.Rptr.3d 898 (2016), as modified (May 18, 2016) (" CBD v. San Bernardino "), provides more relevant guidance. That case concerned an EIR for a project planned to be managed by a private, nonprofit entity, the Fenner Valley Mutual Water Company, formed by a private company, Cadiz, Inc., in cooperation with several public water agencies. The project had several components: construction of a number of wells on land owned by Cadiz within the County of San Bernardino; extraction of groundwater from those wells; export of that water via an underwater conveyance pipeline for eventual delivery to the public agencies; and the potential for the public agencies to send surplus surface water to the project site to be held in storage in the groundwater basin. Id. at 333, 201 Cal.Rptr.3d 898. Santa Margarita Water District ("SMWD") served as the lead agency, with the County of San Bernardino serving as a responsible agency. Id. at 332, 201 Cal.Rptr.3d 898. The project planned for water from the project to go to customers of public agencies located in Los Angeles, Orange (where SMWD is located), Riverside, San Bernardino, and Ventura Counties. Id. at 333, 201 Cal.Rptr.3d 898.

Plaintiffs in CBD v. San Bernardino argued that the County of San Bernardino should have been the lead agency because it was "in the best position to objectively balance the benefits and risks of the project, rather than the purchaser of the water." Id. at 339, 201 Cal.Rptr.3d 898. The court determined that because the Project will be carried out, in part, by a public agency, SMWD "was properly designated as the lead agency under [CEQA Guidelines § 15051(a) ]" and had the "greatest responsibility for supervising the project as a whole " under CEQA Guidelines § 15051. Id. at 340, 201 Cal.Rptr.3d 898 (emphasis in original). This was despite the fact that a certain percentage of the water to be transferred would be transferred from one place outside SMWD's boundaries to another place outside SMWD's boundaries.

The Court finds the situation in CBD v. San Bernardino analogous to the present case. Although some of the transfers at issue in the present case may originate and terminate in water districts outside the Authority's boundaries, the Authority has a more significant role in the overall project than does DWR. The Court agrees with the Authority that it is important to remember that "[w]ater transfers are voluntary actions proposed by willing buyers and sellers and are not initiated by state agencies." ECF No. 48 at 34 (citing AR 27422). DWR will not be a party involved in negotiating the transfers identified in the EIS/EIR, nor will the agency be party to any of the transfer contracts. AR 27422. The Authority, not DWR, has the greatest responsibility for determining the water needs of its members and in helping to obtain necessary water for those needs. See CEQA Administrative Record ("CAR") 14; AR 25370-71, 25430-32 "DWR will have a coordination role in the process because it will coordinate with Reclamation on review of potential transfer information packages (to help ensure consistency between CVP-related transfers and non-CVP-related transfers). DWR may also help facilitate transfers through [SWP] facilities in some years." AR 27422. The Court agrees with the Authority that "[t]his is not a role with 'principal responsibility' such that DWR should be the CEQA lead agency." ECF No. 48 at 34. DWR, notably, has no responsibility over transfers that do not pass through its facilities. See AR 25443-44, 27421-22.

Plaintiffs argue that while the Authority "has a duty to comply with CEQA for its water transfers, [it] has no 'principal responsibility' for other entities' water transfers in which [the Authority] has no role at all." ECF No. 51 at 1. This is true, but does not mean that DWR provides "greater legal, policy, and technical responsibility" for the Project as a whole. As explained above, the Authority's role is somewhat more significant than DWR's overall. That is all the law requires, particularly in light of CBD v. San Bernardino , which demonstrates by way of example that a lead agency can still qualify as such even though it has little to no control over implementation of some aspects of the project.

Plaintiffs make several additional arguments on the lead agency issue that merit serious consideration. First, as mentioned, a lead agency is defined as having "authority to require feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment." CEQA Guidelines at § 15041. Plaintiffs argue that the Authority fails to satisfy this definition because it has no authority over transfers in which it is not involved. ECF No. 51 at 2. More specifically, Plaintiffs emphasize that the FEIS/R relies on the mitigation measures that depend upon DWR for implementation, including "WS-1" and "GW-1", which are designed to reduce impacts to surface water and groundwater supplies.

Under WS-1, a streamflow depletion factor will be applied to transfers "to mitigate potential water supply impacts from the additional groundwater pumping due to groundwater substitution transfers." AR 25526. "The streamflow depletion factor equates to a percentage of the total groundwater substitution transfer that will not be credited to the transferor and is intended to offset the streamflow effects of the added groundwater pumping due to transfer. Id. "The exact percentage of the streamflow depletion factor will be assessed and determined on a regular basis by Reclamation and DWR in consultation with buyers and sellers based on the best technical information available at that time." Id. "Reclamation and DWR require the imposition of a streamflow depletion factor because they will not move transfer water if doing so will violate the no injury rule." AR 25526-27.

Mitigation measure GW-1 requires monitoring of groundwater and/or surface water levels during transfers to, among other things, avoid potential effects to other legal users of water and mitigate significant environmental effects. AR 25759. Pursuant to GW-1, potential sellers must submit well data "for Reclamation and, where appropriate, DWR review, as part of the transfer approval process."Id. The record does support Plaintiffs' position that the Authority has no legal mandate to ensure groundwater and surface water impacts felt in other jurisdictions are fully mitigated or avoided. In contrast, DWR does have some role to play in overseeing groundwater management under California's Sustainable Groundwater Management Act ("SGMA"). Under SGMA, local agencies are tasked with creating Groundwater Sustainability Plans ("GSP") that must comport with requirements set forth in SGMA. See Cal. Water Code. §§ 10723, 10727.2. DWR oversees this process in various ways. See Cal. Water Code § 10733.8 (DWR must review GSPs or permitted alternatives every five years, assess whether the GSP complies with SGMA, and may include "recommended corrective actions to address any deficiencies").

The Authority responds that "as lead agency, it adopted mitigation measures that are legally feasible and may be fully enforced by Reclamation through its regulatory authority, in compliance with CEQA," ECF No. 58 at 16. Building on the CEQA Guideline definition of a lead agency as one having "authority to require feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment," CEQA Guideline § 15126.4(a)(2) provides: "Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments. In the case of the adoption of a plan, policy, regulation, or other public project, mitigation measures can be incorporated into the plan, policy, regulation, or project design." Although the Court can locate no cases interpreting these Guidelines provisions in relevant ways, additional guidance can be found in other, similar provisions of CEQA that require mitigation measures be "fully enforceable through permit conditions, agreements, or other measures." Cal. Pub. Res. Code § 21081.6. Interpreting this related provision, at least one California court has found that an agency may adopt mitigation measures made enforceable through another agency with regulatory authority over the impact being mitigated. Citizens Opposing a Dangerous Env't v. Cnty. of Kern , 228 Cal. App. 4th 360, 383, 174 Cal.Rptr.3d 683 (2014) (permitting lead agency to rely on a condition requiring compliance with FAA rules and regulations). Accordingly, the Court concludes that a lead agency does not lack "authority" to require feasible changes simply because it lacks ultimate enforcement authority over the mitigation measure. More would be required to demonstrate a mitigation measure is unenforceable.

Plaintiffs also argue that reliance on the Authority as lead agency prejudiced the environmental document by undermining the efficacy of these critical mitigation measures, "since key elements of each mitigation measure are illegally deferred to future DWR review and approval." ECF No. 45 at 10. This is a complaint about the structure and nature of the mitigation measures. Plaintiffs would be able to raise the same or similar complaint (i.e., that key elements are illegally deferred to future review) about the mitigation measures even if DWR were the lead agency. The Court does not find this to be a basis for finding the Authority is not the proper lead agency for this Project.

Finally, Plaintiffs are correct that most if not all of the Project's potentially significant impacts to water resources fall outside the boundaries of the Authority's member districts. The Authority counters by citing CEQA Guidelines section 15051(a), which provides: "If the project will be carried out by a public agency, that agency shall be the lead agency even if the project would be located within the jurisdiction of another public agency." Here, the Authority is anticipated to be negotiating transfer agreements with potential sellers on behalf of participating members. AR 27421; see also AR 25442-44 (Authority identified as a common participant in most past water transfers); AR 25370 (Authority members identified as majority of potential buyers for transfers analyzed in FEIS/R). The fact that potentially significant impacts of the Project lie outside the Authority's boundaries does not render them per se an improper lead agency.

In sum, the Authority is a proper lead agency for the Project. Plaintiffs' motion for summary judgment on this ground is DENIED and the Authority's cross-motion GRANTED.

2. CEQA Project Description

Plaintiffs allege that the Project description violates CEQA because: (1) the description of the timing, amount, location, and frequency of transfers are entirely uncertain; and (2) the FEIS/R's "carriage water" project component improperly conflates a mitigation measure with the project itself and is completely undefined. ECF No. 45 at 12-17.

Generally, "[a]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." County of Inyo v. City of Los Angeles , 71 Cal. App. 3d 185, 193, 139 Cal.Rptr. 396 (1977). "Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal ... and weigh other alternatives in the balance." Id. at 192-93, 139 Cal.Rptr. 396. A project description that gives conflicting signals to decision makers and the public about the nature and scope of the project is fundamentally inadequate and misleading. San Joaquin Raptor Rescue Center v. County of Merced , 149 Cal. App. 4th 645, 655-656, 57 Cal.Rptr.3d 663 (2007) (finding conflict in EIR for mining project, where project description indicated no increases in mine production were being sought, yet also provided for substantial increases in mine production).

However, CEQA explicitly cautions courts against interpreting CEQA in a manner that imposes requirements beyond those explicitly stated in the statute or in the Guidelines. Cal. Pub. Res. Code § 21083.1. The CEQA Guidelines explain that "[t]he description of the project shall contain the following information but should not supply extensive detail beyond that needed for evaluation and review of the environmental impact":

(a) The precise location and boundaries of the proposed project shall be shown on a detailed map, preferably topographic. The location of the project shall also appear on a regional map.

(b) A statement of the objectives sought by the proposed project. A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary. The statement of objectives should include the underlying purpose of the project.

(c) A general description of the project's technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.

(d) A statement briefly describing the intended uses of the EIR.

(1) This statement shall include, to the extent that the information is known to the lead agency,

(A) A list of the agencies that are expected to use the EIR in their decision-making, and

(B) A list of permits and other approvals required to implement the project.

(C) A list of related environmental review and consultation requirements required by federal, state, or local laws, regulations, or policies. To the fullest extent possible, the lead agency should integrate CEQA review with these related environmental review and consultation requirements.

(2) If a public agency must make more than one decision on a project, all its decisions subject to CEQA should be listed, preferably in the order in which they will occur. On request, the Office of Planning and Research will provide assistance in identifying state permits for a project.

CEQA Guidelines § 15124 (emphasis added).

a. Timing, Amount, Location, and Frequency of Transfers

While the FEIS/R lists each of the entities anticipated to buy and sell transfer water, and places an upper limit on the amount of water transferred, Plaintiffs argue that the FEIS/R omits critical details about the timing, amount, location, and frequency of transfers. ECF No. 45 at 12. Plaintiffs suggest that the FEIS/R is unlawful because it "lacks the necessary stable and discrete project description required for a project-level review." ECF No. 45 at 14. Under CEQA, "a program EIR is distinct from a project EIR, which is prepared for a specific project and must examine in detail site-specific considerations." Ctr. for Sierra Nevada Conservation v. County of El Dorado , 202 Cal. App. 4th 1156, 1184, 136 Cal.Rptr.3d 351 (2012). Plaintiffs argue that the FEIS/R cannot provide "in detail site-specific considerations" because it does not identify any single site-specific project, ECF No. 45 at 14, and does not set forth with any certainty whether transfers would occur, nor to what use the ultimate transfer water may be put. AR 27977-27979.

Plaintiffs somewhat conflate two standards. As discussed above, "[a]n accurate, stable and finite project description is the sine qua non " of every"informative and legally sufficient EIR." County of Inyo , 71 Cal. App. 3d at 193, 139 Cal.Rptr. 396. At the same time, but not to be confused with the requirement for an "accurate stable and finite project," CEQA draws a distinction between a "program EIR" and a "project EIR," the latter being appropriate: "for a specific project and must examine in detail site-specific considerations." Sierra Nevada Conservation , 202 Cal. App. 4th at 1184, 136 Cal.Rptr.3d 351 ; see also Guidelines § 15160 (explaining how the content of an EIR may be "tailored to different situations and intended uses"). The level of specificity required in an EIR is determined by the nature of the project and the "rule of reason." City of Irvine v. Cnty. of Orange , 238 Cal. App. 4th 526, 540, 189 Cal.Rptr.3d 279 (2015) (internal citation and quotation omitted). When evaluating an EIR, a court should "look to the substance of the EIR, not its nominal title." Id. Therefore, an EIR must provide an accurate, stable and finite project description and must do so at an appropriate level of detail under the circumstances.

Teasing apart these two lines of authority, the first question is whether the FEIS/R provides an "accurate, stable and finite project description." County of Inyo , 71 Cal. App. 3d at 193, 139 Cal.Rptr. 396. Plaintiffs suggest that the FEIS/R runs afoul of this standard because it lacks "the ability to provide details as to the time, location, and quantity of any actual transfer over the next 10 years." ECF No. 45 at 14. But, this misses the point of County of Inyo . In that case, the EIR described a project to increase pumping from a groundwater basin within the Owens Valley, with the water being "destined solely for 'unanticipated uses' " within the Owens Valley itself. County of Inyo , 71 Cal. App. 3d at 190, 139 Cal.Rptr. 396. Yet, the EIR went on to discuss proposals "far broader than the initially described project," including at times referring to the project as part of the larger operation of the regional Los Angeles Aqueduct System and describing plans to export additional water outside the Owens Valley. Id. This moving target rendered the project description unlawful because "[t]he defined project and not some different project must be the EIR's bona fide subject.... [T]he selection of a narrow project as the launching pad for a vastly wider proposal frustrated CEQA's public information aims." Id. at 199-200, 139 Cal.Rptr. 396. Other cases applying County of Inyo likewise find project descriptions unlawful where the EIR's description of a project's scope, size, or magnitude demonstrates internal inconsistencies. See San Joaquin Raptor , 149 Cal. App. 4th at 655, 57 Cal.Rptr.3d 663 (finding project description unlawful where draft EIR represented that project would not significantly increase pre-existing mine's annual production, while proposed permit that would be approved by final EIR would allow for more than doubling of mine production); Communities for a Better Env't v. City of Richmond , 184 Cal. App. 4th 70, 84, 108 Cal.Rptr.3d 478 (2010) (" CBE v Richmond ") (finding project description inadequate where project proponent provided conflicting descriptions of oil refinery project, leading to confusion over whether project would allow refinery to process a more pollution-intensive petroleum product).

In contrast, Citizens for a Sustainable Treasure Island v. City & County of San Francisco , 227 Cal. App. 4th 1036, 174 Cal.Rptr.3d 363 (2014), concerned an EIR approving the re-development of Naval Station Treasure Island into a mixed-use community. Project opponents argued that the EIR's project description was "unstable and erratic" and that the plan was nothing more than a "conceptual land use map." Id. at 1052, 174 Cal.Rptr.3d 363. The Treasure Island court disagreed, finding that the "EIR made an extensive effort to provide meaningful information about the project, while providing for flexibility needed to respond to changing conditions and unforeseen events that could possibly impact the Project's final design." Id. at 1053, 174 Cal.Rptr.3d 363. The EIR described permitted uses of the project area and provided detailed standards that would govern development, including (through incorporation by reference) plans showing street layouts and concepts for the shapes of new buildings and landscapes. Id. The court acknowledged, however, that, "as a matter of necessity at this stage in the planning process, there are many Project features that are subject to future revision, and quite likely will be the subjects of supplemental review before the final Project design is implemented." Id. at 1054, 174 Cal.Rptr.3d 363. The court did not fault the EIR "for not providing detail that, due to the nature of the Project, simply does not now exist." Id. (citing CEQA § 15146 ("The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR.").) As Treasure Island points out, courts need not "require[ ] resolution of all hypothetical details prior to approval of an EIR." Id.

Here, the FEIS/R identifies the purpose of the project: to facilitate voluntary water transfers to CVP contractors to help meet shortfalls in contract amounts. AR 25368. The FEIS/R identifies potential buyers and sellers, AR 25370-72, and provides the maximum potential transfer that is covered by the FEIS/R for each seller, for a total maximum of 511,094 Acre Feet ("AF"). AR 25372. The service area of each potential buyer is described, AR 25370-71, and the potential sellers are grouped into "area[s] of analysis," AR 25372, which the FEIS/R utilizes in its analyses. AR 25485, 25487, 25540. The FEIS/R also identifies the maximum volume of water that may be transferred through the Delta in any given year (up to 600,000 AF in critical years or dry years following dry or critical years). AR 25375. Finally, the FEIS/R explains that the "transfer window" covered by the FEIS/R is July to September. Id. In addition, transfer operations are described by seller geographic region. For example, potential sales from willing sellers on the Sacramento River are described in detail as follows:

Potential sellers on the Sacramento River include Conaway Preservation Group, LLC, Cranmore Farms, LLC, Glenn-Colusa Irrigation District (ID), Pelger Mutual Water Company (MWC), Pleasant Grove-Verona MWC, Reclamation District 108, Reclamation District 1004, Sycamore MWC, and Te Velde Revocable Family Trust, which may provide water made available through groundwater substitution or crop idling shifting actions. Anderson Cottonwood ID, Eastside MWC, Natomas MWC, and River Garden Farms plan to transfer water made available through groundwater substitution only.

Potential sellers receive CVP water that is stored upstream from their service areas in Shasta Reservoir, a CVP facility Releases from Shasta Reservoir may be routed through or around the Shasta Power Plant to the Sacramento River, where flows are reregulated by Keswick Dam.

Delta conveyance capacity would be available when conditions for sensitive species are acceptable to NOAA Fisheries and USFWS, typically from July through September, but groundwater substitution and cropland idling crop shifting transfers would be available from April through September. Storing water in Shasta Reservoir from April through June would help facilitate these types of transfers; however, Shasta Reservoir has a very limited capacity to store transfer water from April through June because of downstream temperature requirements. Reclamation is required by [State Water Resources Control Board] Water Rights Orders 90-05/91-01 to meet average daily temperature requirements as far downstream as practical when temperatures could affect fish. To meet requirements, Reclamation must carefully manage the cold water pool in Shasta Reservoir by releasing larger quantities of water earlier in the season; larger flows maintain cooler temperatures for a longer distance downstream. Reducing releases to hold transfer water in storage could affect Reclamation's ability to meet these downstream temperature requirements. Reclamation would only consider storing water for transfers if it would not affect releases for temperature or if it could be "backed up" into another reservoir (by reducing releases from that reservoir). Backing up water may be possible if the Delta is in balanced conditions and instream standards are met. The decision to back up transfer water would be made on a case-by-case basis, but storage is analyzed in this EIS/EIR so that the analysis is complete in the event Reclamation determines that storage is possible in a specific year.

Because of the limitations associated with storing transfer water, crop idling transfers would be more difficult to implement Cropland idling cannot be started partway through the irrigation season, so the water made available from April through June would bypass the pumps and become Delta outflow if it cannot be stored. Sacramento River sellers and buyers would generally prefer water transfer options that are more flexible, such as starting groundwater substitution pumping when Delta pumping capacity for transfers is available.

Proposed sellers divert water from various locations along the Sacramento River or the Sutter Bypass. If a seller shifts from using surface water to groundwater when a transfer is implemented, river flows would not decrease from Shasta Reservoir to the point of diversion absent transfers. River flow would then increase from the seller's usual diversion point downstream to the buyer's point of diversion because water is not diverted for use until it reaches the Delta.

If Reclamation determines that it can store water in Shasta Reservoir, the flows in the Sacramento River between Shasta Reservoir and the point of diversion absent transfers would decrease from April through June. Flows downstream of the point of diversion would not change during this period.

AR 25468-69. Finally, the FEIS/R indicates that "water would be used only to help meet existing demands and would not serve any new demands in the buyers' service areas." AR 14788; see also AR 26116 ("Transfers would be used to serve existing demands in the contractors' service areas."). Critically, unlike in County of Inyo , Plaintiffs have not pointed to and the Court cannot identify any way in which the project description shifts throughout FEIS/R, or any way in which the analysis evaluates a project that is different than the project described.

Similarly, Plaintiffs argue that "without the ability to provide details as to the time, location, and quantity of any actual transfer over the next 10 years, the [F]EIS/R lacks the necessary stable and discrete project description required for project-level review." ECF No. 45 at 14. But, as Treasure Island explains, it is perfectly permissible for a CEQA document to evaluate the upper end of a range of impacts, while leaving undescribed some "detail that, due to the nature of the Project, simply does not now exist." Treasure Island , 227 Cal. App. 4th at 1054, 174 Cal.Rptr.3d 363. Plaintiffs' complaint would have more traction if it appeared as though the FEIS/R was intended to be a project-level review. A review of the record reveals, however, that it is not.

EPA raised concerns about the level of detail in the Draft EIS/R ("DEIS/R"), stating in its comments:

The level of detail missing from the [DEIS/R], particularly with regard to the specific provisions of likely transfer actions ..., results in an EIS document more appropriate to a programmatic analysis. Without further details regarding these aspects of the proposed project, EPA believes the [FEIS/R] will not be sufficient to support project-level decision-making.

AR 27456. The FEIS/R indicates that this concern was "addressed" by allowing "project-level decision-making" as described in "Common Response 14," id. , which in turn states, in pertinent part:

Implementation of the range of potential water transfers analyzed in this EIS/EIR (annual and multiyear, if any)

would be subject to Reclamation's annual review and approval.

Reclamation's Potential Action is to review and approve potential transfer activities, if appropriate, based on detailed review of the specific proposed transfer. Reclamation is not soliciting potential buyers or sellers for transfers. The potential buyers and sellers listed in this document could seek to transfer up to the maximum quantities analyzed in this EIS/EIR using this document for NEPA and CEQA compliance, or could propose other transfers outside of this range subject to appropriate environmental review and compliance with any other applicable requirements. Buyers and sellers must implement measures incorporated into the Proposed Action to avoid or reduce potential environmental impacts to obtain Reclamation approval of the transfer. Reclamation technical experts review all proposed transfers prior to approval of the transfer to ensure that impacts of the proposed transfer are within the scope of analysis in this EIS/EIR (or require the preparation of further environmental documentation in the event that new or substantially more severe adverse impacts are presented by the proposed transfer). Reclamation ensures that the identified mitigation measures are implemented through review of monthly reports, field visits, and necessary coordination with transfer participants. Reclamation and [the Authority] have developed a Mitigation, Monitoring, and Reporting Plan, which is included in Appendix K of the Final EIS/EIR. The requirements of monitoring and mitigation as they apply to each individual transfer will be included in the transfer approval.

Reclamation will review each water transfer proposal with a view to the proposal's adequacy in addressing the technical information needed. To fully consider the proposal, site specific conditions may require additional information and considerations beyond that described in current guidance (such as including the Technical Information Document for Preparing Water Transfer Proposals, which is jointly prepared by DWR and Reclamation). This EIS/EIR does not predetermine those needs or those facts and does not foreclose the requirement and consideration of additional information (or further environmental review if necessary based on the potential for new or more severe environmental effects). The final quantity of water, if any, to be transferred is dependent on numerous factors, including future changes in hydrologic conditions, export capacity available for transfer water, negotiations between buyers and sellers, and Reclamation approval. Additional information regarding the process by which individual transfer proposals would be presented, evaluated, and potentially approved, can be found on Reclamation's website at http://www.usbr.gov/mp/watertransfer/ and DWR's website at http://www.water.ca.gov/watertransfers/proposals.cfm.

AR 27451-52 (emphasis added). The Court interprets this language in the FEIS/R as an admission by its authors that it does not provide specific, project-level authorization for any particular transfer. Rather, each transfer will be evaluated to determine whether that transfer is consistent with the parameters of the FEIS/R or whether, alternatively, site-specific conditions require additional evaluation beyond that provided in the FEIS/R itself. The Court finds this to be a reasonable approach, providing an appropriate level of detail under the circumstances. The FEIS/R is what it is and provides CEQA approval only for what it describes and evaluates.

Program EIRs are designed to work this way under CEQA. "They may be used to address impacts and mitigation measures that apply to the program as a whole to simplify later environmental review for program activities." Ctr. for Biological Diversity v. Dep't of Fish & Wildlife , 234 Cal. App. 4th 214, 233-34, 183 Cal.Rptr.3d 736 (2015) (" CBD v. DFW ") (citing CEQA Guidelines § 15168(d) ). "They may also be used to consider broad programmatic issues for related actions at an early planning stage when the agency has greater flexibility to deal with basic problems or cumulative impacts." Id. (citing CEQA Guidelines § 15168 (b) ). "The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR." CEQA Guidelines § 15146. "Accordingly, the CEQA Guidelines require an EIR to provide sufficient information in light of what is reasonably feasible." CBD v. DFW , 234 Cal. App. 4th 214 at 233-34, 183 Cal.Rptr.3d 736.

Plaintiffs concede that it is "the contents, not the label, of an EIR [that is] of key concern," but insist that even if the Court construes the FEIS/R as a programmatic document, it is inadequate as such because it lacks necessary programmatic safeguards. ECF No. 51 at 4. The CEQA Guidelines provide specific guidance for public agencies that rely on a program EIR to avoid preparing subsequent EIRs; the public agency must examine site-specific program activities "in the light of the program EIR to determine whether an additional environmental document must be prepared." CEQA Guidelines § 15168(c). More specifically, "[i]f a later activity would have effects that were not examined in the program EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration." Id. at § 15168(c)(1). In contrast, "[i]f the agency finds that ... no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required. Id. at § 15168(c)(2). In addition "[a]n agency shall incorporate feasible mitigation measures and alternatives developed in the program EIR into subsequent actions in the program." Id. at § 15168(c)(3). Finally, "[w]here the subsequent activities involve site specific operations, the agency should use a written checklist or similar device to document the evaluation of the site and the activity to determine whether the environmental effects of the operation were covered in the program EIR." Id. at § 15168(c)(4). Plaintiffs point out that in CBD v. DFW , which involved the review of a program EIR concerning stocking of fish in high alpine lakes and that practice's impact on native frog species, the California Department of Fish and Wildlife ("DFW") used a protocol to "evaluate each stocking location within the range of a [frog] species in a stepwise fashion to determine whether interactions between stocked trout and [frog] species may occur. If the biologist determines a significant impact is likely, the Department will cease stocking at that location unless and until it develops and implements an aquatic biodiversity management plan for that location." 234 Cal. App. 4th at 229, 183 Cal.Rptr.3d 736. Plaintiffs suggest that the CBD v. DFW court treated the presence of the evaluation protocol as a pre-requisite to upholding the program EIR. The Court does not read CBD v. DFW to impose such a pre-requisite. In fact, CBD v. DFW reasoned:

In effect, after a sufficiently comprehensive and specific program EIR has been certified, CEQA allows much of the initial site-specific review to occur outside a formal CEQA process and beyond public view. CEQA does not require the Department to engage in a public process when it determines whether the impacts from a site-specific project were addressed and adequately mitigated in the program EIR.

Id. at 239, 183 Cal.Rptr