EIR for Diversion of Surplus Flood Flows to Recharge Water Bank Upheld; Exhaustive Quantification of Existing Water Rights Not Necessary for Accurate Project Description or Environmental Settings Analysis

April 20th, 2022

By: Dustin Peterson

In Buena Vista Water Storage Dist. v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576, the Second District Court of Appeal found that an EIR prepared by the Kern Water Bank Authority (KWBA) for a project to divert up to 500,000 acre-feet-per-year (AFY) of water from the Kern River in wet years for underground storage in the Kern Water Bank (Project) was adequate, reversing the trial court.

During periods of high flow in the Kern River, the United States Army Corps of Engineers releases flood flows from the Lake Isabella Reservoir. After flowing downstream past various appropriative water rights holders, these excess flood flows sometimes make it to the Kern River-California Aqueduct Intertie (Intertie), which was designed to alleviate downstream flooding during these events. The water that reaches the Intertie is considered unappropriated, and the Project sought to appropriate some of these flows during years when the water was available, approximately 18% of years on record. To fulfill these objectives, KWBA filed an application for a water right permit to divert the excess water and prepared an EIR analyzing the impacts stemming from the approval of this permit.

Buena Vista Water Storage District (Petitioners) sought to set aside KWBA’s approval of the Project and certification of the EIR. The trial court found that (1) the EIR’s definitions of Project water were inaccurate, unstable, and indefinite, (2) the EIR’s baseline analysis was inadequate because it failed to complete a full quantitative analysis of existing Kern River water rights holders, and (3) that the EIR’s analysis of environmental impacts to existing water rights and groundwater from KWB long-term pumping operations was inadequate. KWBA appealed.

On appeal, KWBA argued that the EIR’s descriptions of Project water and existing water rights satisfied CEQA’s requirements. Even though the EIR described Project water using a number of different terms such as “flood flows,” “unappropriated water,” and “surplus water,” the Court agreed that these terms were consistent and were simply different words to describe the same condition under which Project water historically flowed. Further, the Court held that the open-ended limit of 500,000 AFY for the Project was not an unstable or indefinite description because a project description may use flexible parameters when it is subject to future changing conditions and here water availability would fluctuate from year to year.

The Court also found that a full quantification of existing water rights on the Kern River had not been necessary. The Court cited CEQA Guidelines section 15124, governing the Project Description, noting that nothing in the section required KWBA to give anything more that the general description of the Project’s technical and environmental characteristics.  In rejecting the trial court’s holding, the Court emphasized that a stream-wide adjudication of Kern River water rights had never been quantified and could take decades. The Court found that KWBA had the discretion to rely on historical measurements of water to determine existing physical conditions and that a quantification of existing water rights was not necessary to adequately discuss the environmental setting. As such, the Court held that the Project’s detailed description and environmental settings analysis of existing Kern River water allocations and historical measurements of water met the CEQA requirements that an EIR reflect a “good faith effort” at full disclosure and provided an accurate and complete description of the environmental setting.

With regard to the EIR’s analysis of the Project’s potential impacts to existing Kern River water rights holders, the Court found that, because the Project would only divert unappropriated surplus water that was in excess to proprietary rights, the EIR’s finding of no significant impacts to existing water rights was supported by substantial evidence. Finally, the Court agreed with KWBA that the Project would not have a significant impact on groundwater levels because there were ongoing baseline operations in place at the KWB to ensure that any groundwater recovered during times of drought would not exceed banked quantities. In doing so, the Court noted that preexisting operations are not mitigation measures designed to reduce a project’s impacts, but are part of the ongoing baseline operations. As such, the Court reversed the trial court on all counts.

Key Points:

  • A project description may use a flexible parameter when the project is subject to future changing conditions.
  • Preexisting operations are part of ongoing baseline operations and not mitigation measures designed to reduce project’s impact.