The opinion
Filed 12/31/25
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
DEPARTMENT OF WATER RESOURCES,
C100552
Plaintiff and Respondent,
v. (Super. Ct. No. 34-2020-
00283112-CU-MC-GDS)
THE METROPOLITAN WATER DISTRICT
OF SOUTHERN CALIFORNIA et al.,
Defendants and Appellants.
_______________________________________
SIERRA CLUB et al., (Super. Ct. No. 34-2020-
80003517-CU-WM-GDS)
Plaintiffs and Appellants,
v.
DEPARTMENT OF WATER RESOURCES,
Defendant and Respondent;
THE METROPOLITAN WATER DISTRICT
OF SOUTHERN CALIFORNIA et al.,
Real Party in Interest and Appellants.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part II.
1
APPEAL from a judgment of the Superior Court of Sacramento County, Kenneth
C. Mennemeier, Jr., Judge. Affirmed.
Ann K. B. Carroll and Christopher Martin, General Counsel; Rob Bonta, Attorney
General, Evan Eickmeyer, Supervising Deputy Attorney General, Daniel M. Fuchs, and
Matthew J. Goldman, Deputy Attorneys General; Orrick, Herrington & Sutcliff, Michael
Weed, and Stanley J. Dirks for Plaintiff, Defendant, and Appellant Department of Water
Resources.
E. Robert Wright for Plaintiffs, Defendants, and Appellants Sierra Club California,
Restore the Delta, and Planning and Conservation League.
John Buse and Aruna M. Prabhala for Plaintiffs, Defendants, and Appellants
Center for Biological Diversity and Friends of Stone Lakes National Wildlife Refuge.
Law Office of Adam Keats, Adam Keats for Plaintiffs, Defendants, and
Appellants, Planning and Conservation League, and Restore the Delta.
Best Best & Krieger, Christopher Pisano, Miles Krieger, and Joseph Byrne for
Plaintiff, Defendants, and Appellant Santa Clarita Valley Water Agency.
Freeman Firm, Thomas H. Keeling for Plaintiffs, Defendants, and Appellants
County of San Joaquin, County of Contra Costa, Contra Costa County Water Agency,
County of Solano, County of Yolo, County of Plumas, Plumas County Flood Control and
Water Conservation District, and County of Butte.
Redwine and Sherill, Steven B. Abbott for Plaintiff, Defendants, and Appellant
Coachella Valley Water District.
Brunick, McElhaney & and Kennedy, William J. Brunick and Leland P.
McElhaney for Plaintiff, Defendant, and Appellant Mojave Water Agency.
Varner & Brandt, Scott R. Heil for Plaintiff, Defendants, and Appellant San
Bernardino Valley Municipal Water District.
Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Clark, and
Jamey M.B. Volker for Plaintiffs, Defendants, and Appellants North Coast Rivers
2
Alliance, Winneman Wintu Tribe, Institute for Fisheries Resources, Pacific Coast
Federation of Fishermen’s Association, and San Francisco Crab Boat Owners
Association.
Law Office of Roger B. Moore, Roger B. Moore for Plaintiffs, Defendants, and
Appellants County of San Joaquin, County of Contra Costa, Contra Costa County Water
Agency, County of Solano, County of Yolo, County of Plumas, Plumas County Flood
Control Water Conservation District, and County of Butte.
Musick Peeler & Garrett, Cheryl A. Orr for Plaintiff, Defendant, and Appellant
Tulare Lake Basin Water Storage District.
Kirnpreet Kaur, County Counsel for Plaintiff, Defendant, and Appellant County of
San Joaquin.
Thomas L. Geiger and Stephen M. Siproth, County Counsel for Plaintiffs,
Defendants, and Appellants for County of Contra Costa and Contra Costa County Water
Agency.
Bernadette S. Curry and Carolyn Blacklock, County Counsel for Plaintiff,
Defendant, and Appellant County of Solano.
Philip J. Pogledich and Eric May, County Counsel for Plaintiff, Defendant, and
Appellant County of Yolo.
Bradley J. Stephens, County Counsel for Plaintiff, Defendant, and Appellant
County of Butte.
Joshua M. Brechtel and Sara G. James, County Counsel for Plaintiffs, Defendants,
and Appellants County of Plumas and Plumas County Flood Control and Water
Conservation District.
Law Office of Mark A. Pruner, Mark A. Pruner for Plaintiff, Defendant, and
Appellant Clarksburg Fire Protection District.
Marcia Scully, Robert C. Horton, and Bryan M. Otake; Atkins, Andelson, Loya,
Rudd & Romo, David D. Boyer, and Bryan M. Wheeler; for Defendant, Appellant,
3
Respondent and Real Party In Interest Metropolitan Water District of Southern
California.
Somach Simmons & Dunn, Aaron A. Ferguson, Kelly M. Taber, Michelle E.
Chester, Ellen M. Moskal, and Louinda V. Lacey for Defendants and Respondents
County of Sacramento, Sacramento County Water Agency, and the City of Yuba City.
Timothy A. Bittle, Jonathan M. Coupal, Laura E. Dougherty, and Amy C. Sparrow
for Defendant and Respondent Howard Jarvis Taxpayer Association.
Ruddell, Stanton, Bixler, Mauritson & Evans, Aubrey Mauritson, and Josh T. Fox
for Defendants, Appellants, and Respondents Tulare Lake Basin Water Storage and Oak
Flat Water District.
Young Wooldridge, Steven M. Torigiani and Brett A. Stroud for Defendants and
Respondents Wheeler Ridge-Maricopa Storage District, Semitropic Water Storage
District, Semitropic Improvement District of Semitropic Water Storage District,
Buttonwillow Improvement District of Semitropic Water Storage District, and Pond-Poso
Improvement District of Semitropic Water Storage District.
Klein DeNatale Goldner, Joseph D. Hughes for Defendants and Respondents
Belridge Water Storage, Berrenda Mesa Water District, Lost Hills Water District, and
West Kern Water District.
McMurtrey, Hartsock, Worth & St. Lawrence, Isaac L. St. Lawrence for
Defendants and Respondents Buena Vista Water Storage District, Henry Miller Water
District, and Cawelo Water District.
Richard L. Iger for Defendant and Respondent Kern Delta Water District.
Nossaman, Paul S. Weiland and Benjamin Z. Rubin for Defendant and Respondent
Kern County Water Agency.
Belden Blaine Raytis, Daniel N. Raytis for Defendant and Respondent Rosedale
Rio-Bravo Water Storage District.
4
LeBeau Thelen, Robert G. Kuhs for Defendant and Respondent Tehachapi-
Cummings County Water District.
Diane Freeman, Ammet Nagra, Thomas Y. Lin, Willie Barrera, and Risé A.
Donlon, County Counsel; Lozano Smith, Laurie Avedisian-Favini, Quentin C. Cedar, and
Nisha K. Dale; for Real Party in Interest and Appellant County of Kings.
In this consolidated proceeding, the Department of Water Resources (DWR) seeks
to validate its authority to issue revenue bonds for the planning, acquisition, and
construction of the “Delta Program,” defined as “facilities for the conveyance of water in,
about and through the Sacramento-San Joaquin Delta.” As the legal basis for validation,
DWR relies on Water Code1 section 11260, which authorized DWR to build and operate
the “Feather River Project” as the initial component of the State Water Project. The
features of the Feather River Project, as originally authorized, are not described in
section 11260. Instead, the statute identified the project by reference to three reports
from the 1950’s. (Ibid.) The statute also authorized DWR to make “further
modifications” to the project. (Ibid.) In seeking validation of the bonds, DWR asks us to
sanction the Delta Program as a “further modification” of the Feather River Project under
section 11260.
The respondents in this appeal include environmental groups, state water
contractors, a taxpayer association, public agencies, and other parties (collectively,
respondents) opposed to validation of the bonds.2 Respondents filed a writ petition and
1 Undesignated section references are to the Water Code.
2 In addition to the cross-appealing parties described below, the respondents
include: Howard Jarvis Taxpayers Association, County of Sacramento, Sacramento
County Water Agency, City of Yuba City, Clarksburg Fire Protection District, Oak Flat
Water District, and the following “member units” of the Kern County Water Agency:
Wheeler Ridge-Maricopa Water Storage District, Semitropic Water Storage District (and
5
asserted affirmative defenses challenging DWR’s approval of the bonds based on its
alleged failure to comply with the California Environmental Quality Act (CEQA) (Pub.
Resources Code § 21000 et seq.) and other laws.
The trial court entered judgment denying both the CEQA petition and DWR’s
complaint for validation. The court found that DWR exceeded its authority under section
11260 when it approved the bonds because the definition of the Delta Program is too
vague and uncertain to ascertain whether it qualifies as a “further modification” of the
Feather River Project. As a result, the trial court concluded that DWR was not authorized
to adopt the subject bond resolutions.
DWR and several supporting state water contractors (Metropolitan Water District
of Southern California, Coachella Valley Water District, Mojave Water Agency, San
Bernardino Valley Municipal Water District, and Santa Clarita Valley Water Agency)3
appeal from the portion of the judgment denying validation, arguing, among other things,
that the trial court’s decision is based on an erroneous interpretation of the bond
resolutions.
Respondents and cross-appellants Sierra Club, et al.,4 appeal from the portion of
the judgment denying the CEQA petition and granting summary adjudication in DWR’s
its Semitropic, Buttonwillow, and Pond Poso Improvement Districts), Belridge Water
Storage District, Berrenda Mesa Water District, Lost Hills Water District, West Kern
Water District, Buena Vista Water Storage District, Henry Miller Water District, Cawelo
Water District, Kern Delta Water District, Rosedale-Rio Bravo Water Storage District,
and Tehachapi-Cummings County Water District.
3 For ease of reference, we refer to DWR and the supporting state water contractors
collectively as appellants.
4 The cross-appealing respondents consist of the Sierra Club, Center for Biological
Diversity, Planning and Conservation League, Restore the Delta, and Friends of Stone
Lakes National Wildlife Refuge (collectively, Sierra Club); County of San Joaquin,
County of Contra Costa, Contra Costa County Water Agency, County of Solano, County
of Yolo, County of Butte, County of Plumas, and Plumas County Flood Control and
Water Conservation District (collectively, the Public Agencies); North Coast Rivers
6
favor on affirmative defenses alleging violations of CEQA, the Sacramento-San Joaquin
Delta Reform Act of 2009 (the Delta Reform Act) (§ 85000 et seq.), and the public trust
doctrine.
We agree with the trial court that the contours of the Delta Program are too vague
to support the requested validation judgment as a modification of the Feather River
Project. We therefore affirm the judgment denying validation.
FACTUAL AND LEGAL BACKGROUND
A. History of the State Water Project
“The problems surrounding California’s water supply are well documented in
California jurisprudence. The story is one of ‘ “uneven distribution of water resources”
by region and season.’ [Citation.] Precipitation varies widely from year to year, most of
the precipitation occurs in the winter while demand is highest in the summer, and most of
the rain and snow falls in the north while the highest demand for water arises in the
south.” (Planning & Conservation League v. Department of Water Resources (2024)
98 Cal.App.5th 726, 739-740 (Planning & Conservation).)
To address this maldistribution problem, beginning in the early 1920’s state
officials began studying the concept of a statewide water development project. (Ivanhoe
Irrigation Dist. v. All Parties & Persons (1957) 47 Cal.2d 597, 614, reversed by Ivanhoe
v. McCracken (1958) 357 U.S. 275, 293.) These studies culminated in a 1931 report
outlining a coordinated “State Water Plan” for the conservation, development, and
utilization of water resources. (Stats. 1929, ch. 832, § 1, pp. 1761-1762; Stats. 1941,
ch. 1185, §§1, 2, p. 2943; Stats. 1943, ch. 368, pp. 1604-1742.) Two years later, the
Legislature passed the Central Valley Project Act of 1933 (the CVP Act). (Stats. 1933,
Alliance, Winnemem Wintu Tribe, Institute for Fisheries Resources, Pacific Coast
Federation of Fisherman’s Associations, and San Francisco Crab Boat Owners
Association (collectively, North Coast Rivers Alliance); and Tulare Lake Basin Water
Storage District and County of Kings (collectively, Tulare Lake).
7
ch. 1042, p. 2643 et seq.) After its passage, the CVP Act was approved by the voters in a
special referendum election.
1. Enactment of the CVP Act
Section 1 of the CVP Act declared that “the public interest, welfare, convenience
and necessity require the construction in the manner herein provided of a system of works
for the conservation, development, storage, distribution, and utilization of water, with
incidental generation, transmission, and distribution of electrical energy which system of
works is hereby designated as the Central Valley Project, and is hereby specifically
approved and authorized.” (Stats. 1933, ch. 1042, § 1, pp. 2643-2644.) Section 3 of the
act provided that “[t]he construction of said Central Valley Project is, and is hereby
declared to be, a single object, and the units thereof, hereinafter described, collectively
constitute, . . . one project. The construction, operation[,] and maintenance of said
Central Valley Project as herein provided for is hereby declared to be in all respects for
the welfare and benefit of the people of the State, for the improvement of their prosperity
and their living conditions . . . .” (Stats. 1933, ch. 1042, § 3, pp. 2643-2644.)
The CVP Act defined the Central Valley Project system as comprised of six
features, which it refers to as “units.” As proposed, the key features of the project
included a Kennett (now Shasta) Dam to store and regulate water from the Sacramento
River, and a Friant Dam to store and regulate water from the San Joaquin River. (United
States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 99 (Racanelli);
Stats. 1933, ch. 1042, § 4, pp. 2643-2646.) The other “units” described in the CVP Act
consisted of conduits or canals and other works necessary to transfer water from the
Sacramento-San Joaquin Delta (the Delta)5 to the San Francisco Bay Area or southern
5 Formed by the confluence of the State’s two largest rivers, the Delta is a critically
important estuary and wetland ecosystem. (Department of Water Resources
Environmental Impact Cases (2022) 79 Cal.App.5th 556, 564-565 (Environmental Impact
Cases).) It provides habitat for a vast array of aquatic and terrestrial species, offers a
8
San Joaquin Valley. (Stats. 1933, ch. 1042, § 4, pp. 2643-2646.) In addition, section 4 of
the CVP Act stated that the project shall include “[s]uch other units as may be from time
to time added” by the Water Project Authority (DWR’s predecessor) “in furtherance of
the single object contemplated by section 3 of [the] act.” (Stats. 1933, ch. 1042, § 4,
pp. 2643-2646.)
As originally proposed, construction of the Central Valley Project was to be a
state-funded project financed primarily with revenue bonds, to be repaid with revenues
generated by the sale of water and hydroelectric power. (Goodman v. County of Riverside
(1983) 140 Cal.App.3d 900, 909, fn. 6; Stats. 1933, ch. 1042, §§ 6-9, 15-19, pp. 2643-
2648, 2654-2657.) The CVP Act authorized the issuance of revenue bonds in an amount
not to exceed one hundred seventy million dollars for the purpose of defraying the cost of
constructing the project. (Stats. 1933, ch. 1042, p. 2643, § 18, pp. 2656-2657.) However,
amid the Great Depression, the state was unable to market the bonds, so the federal
government took control of the project and began construction. (Westlands Water Dist. v.
United States (E.D.Cal. 2001) 153 F.Supp.2d 1133, 1142; Racanelli, supra,
182 Cal.App.3d at p. 99.)
Today, the Central Valley Project is one of the world’s most extensive water
transport systems, encompassing more than 20 dams and reservoirs and 500 miles of
major canals. (Racanelli, supra, 182 Cal.App.3d at p. 99; Tehama-Colusa Canal
Authority v. United States DOI (E.D.Cal. 2011) 819 F.Supp.2d 956, 967; San Luis &
Delta-Mendota Water Authority v. United States (9th Cir. 2012) 672 F.3d 676, 682.) With
a total storage capacity of more than 12 million acre-feet of water, the Central Valley
variety of recreational activities, and is home to more than half a million people. (Id. at
p. 565; Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1032.) The Delta
also serves as the hub for both of California’s two major water supply systems: The
federal Central Valley Project and California’s State Water Project. (Environmental
Impact Cases, at p. 565.) “More than two-thirds of California residents (approximately
27 million people) and millions of acres of farmland rely on water diverted from the
Delta watershed.” (Delta Stewardship Council Cases, at p. 1033.)
9
Project delivers approximately seven million acre-feet of water annually to over 250
water contractors, primarily for agricultural use in the Central Valley. (Northern
California Water Assn. v. State Water Resources Control Bd. (2018) 20 Cal.App.5th 1204,
1231.)
Although the facilities built by the federal government differ in certain respects
from those described in the CVP Act, the basic structure is the same. In general, water in
the northern Central Valley is impounded and stored at Shasta Lake (and other reservoirs)
and then periodically released into the Sacramento River to augment flows through the
Delta.6 There, the water is transported/channeled to the Tracy Pumping Plant, which lifts
it into the Delta Mendota Canal, which channels the water along the west side of the San
Joaquin Valley for use in the San Luis Unit and Reservoir, before eventually emptying
into the San Joaquin River near the city of Mendota. (North Coast Rivers Alliance v.
Westlands Water Dist. (2014) 227 Cal.App.4th 832, 841, fn. 9; State Water Resources
Control Bd. Cases (2006) 136 Cal.App.4th 674, 692.) Another major feature of the
Central Valley Project is the impound of San Joaquin River water at Friant Dam and the
transportation of that water, via the Friant-Kern and Madera Canals, to contractors in the
San Joaquin Valley. (Racanelli, supra, 182 Cal.App.3d at p. 99; Westlands Water Dist. v.
Patterson (E.D.Cal. 1994) 864 F.Supp. 1536, 1539.)
2. Codification of the California Water Code
In 1943, California codified its water laws in a newly established Water Code.
(California Water Curtailment Cases (2022) 83 Cal.App.5th 164, 189; Stats. 1943,
ch. 368, p. 1604.) In so doing, the Legislature declared that “[t]he provisions of this
code, in so far as they are substantially the same as existing statutory provisions relating
6 Some water also is diverted from the Red Bluff Diversion Dam to the Tehama-
Colusa and Corning Canals. (See Pacific Coast Federation of Fishermen’s Associations
v. Gutierrez (E.D.Cal. 2008) 606 F.Supp.2d 1195, 1231.)
10
to the same subject matter, shall be construed as restatements and continuations thereof,
and not as new enactments.” (Stats. 1943, ch. 368, p. 1604; see California Water
Curtailment Cases, at p. 189.)
The provisions of the CVP Act were codified in Division 6 of Part 3 (§ 11100 et
seq.) of the Water Code. (Stats. 1943, ch. 368, pp. 1604, 1743 et seq.; see, e.g., §§ 11125-
11127, 11200-11290, 11700-11784.) Except as discussed below, the relevant provisions
of the CVP Act have remained substantially the same since they were codified in 1943.
Section 11201 et seq. describes the authorized units of the Central Valley Project.
They include the Shasta Dam, Contra Costa Conduit, San Joaquin Pumping System,
Friant Dam, Madera Canal, Friant-Kern Canal, Tehama-Colusa Conduit, and Tehama-
Butte Conduit.7 (§§ 11205-11251; see Stats. 1943, ch. 368, pp. 1604-1748; Stats. 1941,
ch. 701, § 1, pp. 2215-2217.)
Section 11290 provides that the project also shall include “such other units as may
be from time to time added by [DWR] to the units specifically enumerated.” It states that
“[DWR] may add additional units which are consistent with and which may be
constructed, maintained, and operated as a part of the project and in furtherance of the
single object contemplated by this part.” (§ 11290; Stats. 1943, ch. 368, pp. 1604-1749.)
Section 11700 codified DWR’s authority to issue bonds to finance the construction
of Central Valley Project units. As amended, it provides that DWR “may, from time to
time, issue bonds” for the purpose of “providing money and funds to pay the cost and
expense of carrying out any of the objects and purposes” of the CVP Act. (§ 11700.) The
bonds authorized by the CVP Act are “revenue bonds,” to be secured solely by revenues
received from the use or operation of the project. (§ 11720; see §§ 11721, 11722.) The
bonds “shall not constitute or be a debt, liability, or obligation of the State” or its general
fund. (§ 11721.)
7 The Legislature subsequently added other units to the project. (See, e.g., § 11252.)
11
3. The Feather River Project
After World War II, California experienced a period of tremendous population
growth, prompting concerns about the adequacy of California’s water supplies and flood
control protection. (Towner, The Role of the State (1957) 45 Cal. L.Rev. 725, 728.) The
Legislature responded to these concerns in 1945 by creating a water resources board and
directing it to conduct a comprehensive investigation of the water resources of California.
(O’Connor, Cal. Research Bur., Issue Summary: Financing the State Water Project (June
1994), p. B4 (O’Connor); Stats. 1945, ch. 1514, pp. 2827-2830, 2832.) The water
resources board’s work culminated in a master plan for the conservation, distribution, and
utilization of California’s water resources called the “California Water Plan.” (O’Connor,
supra, at p. B4; § 10004 et seq.)
In 1951, to further the purposes of the California Water Plan, the water resources
board and State Department of Public Works Division of Water Resources (Division of
Water Resources) prepared a report (State Water Resources Board and State Department
of Public Works Division of Water Resources, Report on Feasibility of Feather River
Project and Sacramento-San Joaquin Delta Diversion Projects Proposed as Features of
the California Water Plan, (May 1951)) (the 1951 Report) on a specific water
development proposal designated as the “Feather River and Sacramento-San Joaquin
Delta Diversion Projects” (hereafter, the Feather River Project). (O’Connor, supra, at
p. B4.) The Feather River Project proposed a multi-purpose dam and reservoir on the
Feather River near Oroville (complete with a hydroelectric power plant and afterbay); a
“Delta Cross Channel” to carry water from the Sacramento River to the Delta; an
aqueduct to transport water from the Delta to Alameda and Santa Clara Counties; and
another aqueduct to transport water from the Delta to the San Joaquin Valley and
Southern California. (O’Connor, at pp. B4-B5.) The stated objectives of the project were
to increase flood protection, produce hydroelectric power, control salinity, preserve fish
12
and wildlife, and “firm” the supply of water in the Delta for export to areas in the west
and south.
Based on the 1951 Report, the Legislature authorized construction of the Feather
River Project as a separate, state-operated “unit” of the Central Valley Project.
(§§ 11200, 11260; Stats. 1951, ch. 1441, pp. 3401-3402; Racanelli, supra,
182 Cal.App.3d at p. 100.) The features of the Feather River Project were not described
in the statute (§ 11260). (Stats. 1951, ch. 1441, p. 3401.) Instead, the Legislature
identified the project’s features by reference to the facilities described in the 1951 Report.
(Ibid.) However, recognizing that the project described in the 1951 Report was not final,
the Legislature authorized DWR to make “modifications” to such facilities. (§ 11260.)
In 1955, the Division of Water Resources submitted an updated report on the
Feather River Project (State of California Department of Public Works, Division of Water
Resources, Program for Financing and Constructing the Feather River Project as the
Initial Unit of the California Water Plan (Feb. 1955)) (the 1955 Report), which made
modifications to the facilities described in the 1951 Report. Among other things, the
1955 Report modified the project to include the San Luis Reservoir on the west side of
the San Joaquin Valley. It also discussed changes to the Oroville Dam and Power Plant
and to the proposed route for the Feather River Project Aqueduct. The Legislature
subsequently incorporated these changes into section 11260. (Stats. 1956 1st Ex. Sess.,
ch. 54, § 1, p. 429.)
In 1959, DWR (as successor to the Division of Water Resources) submitted a third
update on the Feather River Project (State of California Department of Water Resources,
Feather River and Delta Diversion Projects Preliminary Summary Report on
Investigation of Alternative Aqueduct Systems to Serve Southern California (Feb. 1959))
(the 1959 Report), which further considered the routes by which surplus Delta water
would be delivered to Southern California. In 1959, the Legislature also incorporated
this report into section 11260. (Stats. 1959, ch. 2043, p. 4723.)
13
As amended, section 11260 describes the authorized Feather River Project
facilities by reference to all three reports. Specifically, it provides: “The units set forth in
[the 1951 Report], as modified in the [1955 Report], . . . and as further modified by the
recommendations contained in [the 1959 Report], and subject to such further
modifications thereof as [DWR] may adopt, . . . may be constructed by the department
and maintained and operated by it to such extent and for such period as the department
may determine, as units of the Central Valley Project separate and apart from any or all
other units thereof.” (§ 11260)
The features described as the Feather River Project in the 1951, 1955, and 1959
Reports comprise the initial unit of the statewide water storage and delivery system
known as the State Water Project. (State Water Resources Control Bd. Cases, supra,
136 Cal.App.4th at p. 693; In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1154.) The
Legislature has, from time-to-time authorized other units to be constructed, maintained,
and operated as part of the State Water Project or federal Central Valley Project. For
example, in 1957, the Legislature amended sections 11200 and 11270 to authorize the
North Bay Aqueduct as an additional unit of the State Water Project. (Stats. 1957,
ch. 2252, §§1-3, pp. 3917-3918; see also Stats. 1959, ch. 1750, §§1-3, pp. 4212-4213
[Hogan Dam], Stats. 1959, ch. 1774, §§1-3, pp. 4258-4259 [Black Butte Dam and
Reservoir].)
4. The Burns-Porter Act and State Water Contracts
Although the Feather River Project was initially authorized in 1951, it was not
until almost a decade later that the Legislature enacted the legislation necessary to begin
meaningful construction on the project. (In re Bay-Delta etc., supra, 43 Cal.4th at
p. 1155.)
In 1959, the Legislature enacted the California Water Resources Development
Bond Act (the Burns-Porter Act) (§ 12930 et seq.), which—after voter ratification—
authorized the issuance of $1.75 billion in general obligation bonds (§§ 12935-12936) to
14
provide funding for the State Water Project. (Alameda County Flood Control & Water
Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163,
1174; §§ 12931, 12934, subd. (d).)
As specified in the Burns-Porter Act, the object of the legislation was to “provide
funds to assist in the construction of a State Water Resources Development System.”
(§ 12931.) Section 12931 defines such system as being comprised of: (1) the “State
Water Facilities” as defined in subdivision (d) of section 12934; (2) “such additional
facilities as may now or hereafter be authorized by the Legislature” as a part of the
Central Valley Project or California Water Plan; and (3) “such other additional facilities
as [DWR] deems necessary and desirable to meet local needs, including, but not
restricted to, flood control, and to augment the supplies of water in the Sacramento-San
Joaquin Delta and for which funds are appropriated pursuant to this chapter.” (§ 12931;
Metropolitan Water Dist. of Southern Cal. v. Marquardt (1963) 59 Cal.2d 159, 172.)
Section 12934, subdivision (d), in turn, defines the term “ ‘State Water Facilities’ ”
by referring to the facilities authorized by section 11260 of the CVP Act, including the
Oroville Dam and related dams and reservoirs; “[f]acilities for the generation and
transmission of electrical energy;” and an “aqueduct system” which will transport water
from the Delta to the west and south. (§ 12934, subd. (d)(2), (5).)
Although the bonds issued under the Burns-Porter Act are general obligation
bonds backed by the State, revenue anticipated from the sale of water and power made
available by the State Water Project is pledged for payment of principal and interest on
the bonds. (61 Ops. Cal. Atty. Gen. 373 (1978); §§ 11454-11455, 11625, 12936-12937.)
To generate such revenue, the Burns-Porter Act directs DWR to enter into contracts for
the sale, delivery, or use of water and power. (§ 12937, subd. (b).) DWR currently has
long-term contracts with 29 local government contractors. (Planning & Conservation,
supra, 98 Cal.App.5th at p. 742.)
15
“Under the contracts, each contractor has participation rights in the State Water
Project, including the right to receive a certain portion of available State Water Project
supplies. ‘The amount of water available depends on rainfall, snowpack, runoff,
reservoir capacity, pumping capacity, and regulatory and environmental restrictions.’
[Citation.] In return for those rights, the contractors pay a proportional share of the costs
of developing, operating, and maintaining the State Water Project regardless of the
amount of water they receive. [Citation.] The contractors that receive water also make
payments attributable to the amount [of water] received. [Citation.] These contractor
payments pay for both project operating costs and the public bonds issued to build the
system.” (Planning & Conservation, supra, 98 Cal.App.5th at pp. 742-743.)
Section 12937 of the Burns-Porter Act provides that state water contracts are
entered into for the direct benefit of the holders of the bonds; the income and revenues
derived from such contracts are pledged to the purposes of the act; and the contracts shall
not be impaired by subsequent acts of the Legislature so long as any authorized bonds are
outstanding. (§ 12937, subd. (b).) The act also provides that all revenues generated by
the system are declared to constitute a “trust fund” and are pledged for the following
purposes in the following priority: (1) payment of the reasonable costs of the annual
maintenance and operation of the system itself; (2) payment of the principal and interest
on the bonds issued under the act; (3) transfer to the California Water Fund as
reimbursement for funds utilized for construction of the [State Water Project]; and (4) any
surplus revenues “shall . . . be deposited in a special account in the California Water
Resources Development Bond Fund and . . . available for expenditure by [DWR] for
acquisition and construction of the [State Water Project].” (§ 12937, subd. (b); Goodman
v. County of Riverside, supra, 140 Cal.App.3d at p. 911.) Thus, payments received from
state water contractors are irrevocably pledged for the purposes of running the State
Water Project and paying any outstanding Burns-Porter Act bonds. (61 Ops. Cal. Atty.
Gen. 373 (1978); Warne v. Harkness (1963) 60 Cal.2d 579, 584.)
16
Notably, the pledge and priority provisions of the Burns-Porter Act did not repeal
the provisions of the CVP Act authorizing the issuance of revenue bonds and the pledging
of revenues for the payment of such bonds. (Warne v. Harkness, supra, 60 Cal.2d at
pp. 584-585, 588.) The Burns-Porter Act “expressly continues, rather than precludes, the
operation of the [CVP Act].” (Warne, at pp. 584-585.) It declares that any facilities
financed under the act “shall be acquired, constructed, operated, and maintained pursuant
to the provisions of the [CVP Act].” (§ 12931.) Citing this language, the California
Supreme Court rejected a claim that DWR’s authority to issue revenue bonds under the
CVP Act was terminated by the Burns-Porter Act. (Warne, at p. 585.) Instead, the
California Supreme Court ruled that “the two acts can and should be reconciled by
construing the pledge and priority provisions of the Burns-Porter Act as applying to
revenues from facilities constructed with funds made available under that act but as
having no application to revenues from facilities financed under the [CVP Act].” (Id. at
pp. 585, 589-590.) In other words, revenues from facilities financed with CVP Act bonds
are removed from the operation of the pledge and priority provisions of the Burns-Porter
Act. Accordingly, construction of State Water Project facilities has proceeded under both
the CVP Act and the Burns-Porter Act. (Planning & Conservation, supra,
98 Cal.App.5th at p. 742.)
Today, the State Water Project consists of a series of 21 dams and reservoirs, 5
power plants, and 16 pumping plants, which stretch from Lake Oroville in Butte County
to Lake Perris in Riverside County. (Planning & Conservation, supra, 98 Cal.App.5th at
p. 741.) Under the State Water Project, water stored behind Oroville Dam is released into
the Sacramento River and flows to the Delta. In the Delta, a portion of the project water
is diverted to the North and South Bay Aqueducts for delivery to the Bay Area. A greater
portion of the project water is lifted by pumping plants into the California Aqueduct for
transport to Central and Southern California. (Racanelli, supra, 182 Cal.App.3d at
p. 100; State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 693.)
17
5. Delta Conveyance Facility Proposals
One of the principal objectives of the State Water Project is to collect surplus
water from “wet” areas in the north and transport it to “dry” areas in the west and south.
The Delta, located on the western edge of the Central Valley, is critical in achieving this
objective because it serves as a natural point of convergence for California’s water
delivery system. (Delta Stewardship Council Cases, supra, 48 Cal.App.5th at pp. 1031,
1033; §§ 85002, 85004.) Upon being released from the Oroville Dam, surplus water
from Northern California is carried by river systems to the Delta, where it is controlled
and diverted to aqueducts for delivery to other parts of the state. In this sense, the Delta
estuary is used as a physical “pool” to supply the water needed for export to other areas.
To facilitate exports from the Delta, the original Feather River Project proposed
the “Delta Cross Channel” facility, which was designed to “convey water flowing down
the Sacramento River to the westerly channels of the San Joaquin Delta.” The proposed
Delta Cross Channel was never constructed, however.
In 1959, when the Burns-Porter Act was enacted, the Legislature did not include
the Delta Cross Channel in its description of the authorized “State Water Facilities.”
Instead, the Legislature described the prospective Delta features more broadly as
“[m]aster levees, control structures, channel improvements, and appurtenant facilities in
the Sacramento-San Joaquin Delta for water conservation, water supply . . . , transfer of
water across the Delta, flood and salinity control, and related functions.” (§ 12934, subd.
(d)(3).) At the time, DWR “had not developed a construction plan for [any] Delta
facilities.”
In 1960, shortly after voters ratified the Burns-Porter Act, DWR published a report
evaluating potential Delta facilities. (Department of Water Resources, Bulletin No. 76,
Report to the California State Legislature on the Delta Water Facilities as an Integral
Feature of the State Water Resources Development System (Dec. 1960).) The report
stated that the objectives of the proposed Delta facilities were to provide adequate water
18
supplies throughout the Delta, transport water across the Delta without undue loss or
deterioration in quality, provide flood and seepage control to Delta islands, provide
improved vehicular transportation access, and minimize effects on existing recreation
development and enhance recreation growth. The report evaluated four options: (1) a
Chipps Island Barrier Project, which would involve a floodway structure, fishway, and
navigation locks near the city of Pittsburgh; (2) a Single Purpose Delta Water Project,
which would direct virtually all Sacramento River flows down Georgiana Slough and the
Mokelumne River; (3) a Typical Alternative Delta Water Project, which would be a
variation of option two with additional flood protection along the Mokelumne River; and
(4) a Comprehensive Delta Water Project, which would be a variation of option three
with additional flood protection along Old River. The report recommended the Single
Purpose Delta Water Project be adopted as a feature of the State Water Project, but that
recommendation was not accepted. Consequently, in 1961, DWR, the United States
Bureau of Reclamation (the Bureau), and the United States Army Corps of Engineers
formed an Interagency Delta Study Committee to formulate a “mutually acceptable plan
of improvement.”
In 1963, the Bureau introduced to the Interagency Delta Study Committee the
concept of a “Peripheral Canal” as an “alternative” project. The proposed Peripheral
Canal consisted of a 43-mile-long isolated canal that would divert water from the
Sacramento River near Hood and convey it to the Clifton Court Forebay, near the Tracy
pumping plant. (Planning & Conservation, supra, 98 Cal.App.5th at p. 746.) In 1966,
DWR adopted Project Order No. 12, Peripheral Canal (Mar. 1966), designating the
Peripheral Canal as a State Water Project facility.
Initially, California sought to build the Peripheral Canal on a cooperative basis
with the Bureau. However, unable to secure Congressional authorization, DWR decided
to move forward with the canal as a state-only project. The Legislature passed an act
authorizing the construction of the Peripheral Canal in 1980, but the legislation was
19
short-lived. In 1982, voters rejected the Peripheral Canal in a referendum election.
(Planning & Conservation, supra, 98 Cal.App.5th at p. 746.)
After the Peripheral Canal’s defeat, DWR temporarily shifted its focus back to
“through-Delta” water transfer facilities, investigating options such as the “New Hope
Cross Channel-South Delta Intake Channel,” “New Hope Cross Channel-Enlarged
Clifton Court Forebay,” and “Enlarged North Delta Channels-Enlarged Clifton Court
Forebay.”
In 2006, DWR began working on a proposal known as the Bay Delta Conservation
Plan, which consisted of a new isolated conveyance facility plus a long-term habitat
conservation plan for the greater Delta. (Environmental Impact Cases, supra,
79 Cal.App.5th at pp. 565-566.) The new conveyance facility would consist of two
tunnels designed to divert water from the Sacramento River in the north Delta and convey
it approximately 35 miles to the south Delta near the existing pumps. (Ibid.) “The ‘twin
tunnels’ were not intended to replace the existing through-Delta conveyance system, but
to instead create a second facility that could be operated in conjunction with existing
facilities, adding flexibility and resiliency to the water supply system.” (Id. at p. 566.)
In 2013, DWR and the Bureau (among others) issued a draft Environmental
Impact Report (EIR) for the Bay Delta Conservation Plan (CEQA; Cal. Code Regs., tit.
14, § 15000 et seq.). (Environmental Impact Cases, supra, 79 Cal.App.5th at p. 566.) In
2015, in response to comments on the draft EIR, DWR altered the project, replacing the
proposed Bay Delta Conservation Plan with the alternative “WaterFix” project. (Ibid.)
Although the proposed water conveyance facilities were essentially unchanged, the new
California WaterFix project decoupled the conservation plan elements. (Ibid.)
In July 2015, DWR issued a partially recirculated draft EIR for the revised project.
(Environmental Impact Cases, supra, 79 Cal.App.5th at p. 566.) “Notably, a single
tunnel conveyance was included among the alternatives analyzed . . . in the EIR.” (Ibid.)
20
In July 2017, DWR certified a final EIR, approved the California WaterFix project, and
adopted resolutions authorizing revenue bond financing. (Ibid.)
In August 2017, lawsuits were filed challenging the California WaterFix project.
(Environmental Impact Cases, supra, 79 Cal.App.5th at p. 567.) “Although the
allegations vary, in general, the lawsuits alleged that [DWR] violated CEQA by failing to
adequately and accurately describe the project; defining project objectives too narrowly;
using an improper baseline; piecemealing the environmental analysis; failing to
adequately identify, analyze, and mitigate the project’s impacts (especially to water
quality and hydrology); failing to consider a reasonable range of alternatives; failing to
recirculate the final EIR; failing to adequately consult with stakeholders and meaningly
respond to public comments; and adopting findings that are not supported by substantial
evidence. [The plaintiffs] also alleged violations of the Sacramento-San Joaquin Delta
Reform Act of 2009 (§ 85000 et seq.), the public trust doctrine, and the California
Endangered Species Act. (Fish & G. Code, § 2050 et seq.)” (Ibid.)
In 2019, while the lawsuits were pending, California’s newly elected Governor
announced that he did not support the California WaterFix project’s dual tunnel proposal
and directed DWR to instead pursue a single tunnel conveyance. (Environmental Impact
Cases, supra, 79 Cal.App.5th at p. 564.) Following that announcement, DWR decertified
the California WaterFix EIR, vacated its findings, and rescinded the associated project
approvals. (Id. at p. 568.) Less than a week later, DWR rescinded the resolutions
authorizing revenue bond financing for the California WaterFix project. (Ibid.) As a
result, the lawsuits were dismissed. (Id. at p. 569.)
6. The Proposed “Delta Conveyance Project”
In January 2020, DWR published a Notice of Preparation of an EIR for an isolated
single tunnel “Delta Conveyance Project” (hereafter, the Conveyance Project).
(Department of Water Resources, Notice of Preparation, Notice of Preparation of
Environmental Impact Report for the Delta Conveyance Project (Jan. 15, 2020).) As
21
described in the Notice of Preparation, the fundamental purpose of the Conveyance
Project is to “restore and protect” the reliability of State Water Project (and potentially
Central Valley Project) water deliveries south of the Delta. The Conveyance Project is
also intended to achieve the following objectives: address the foreseeable consequences
of climate change and extreme weather events; minimize water supply disruption due to
seismic events; protect the ability to deliver water when hydrologic conditions permit,
consistent with the requirements of state and federal law; and provide operational
flexibility to improve aquatic conditions in the Delta.
As proposed, the Conveyance Project would divert up to 6,000 cubic feet per
second of water from the Sacramento River in the north Delta and convey it
(approximately 42 miles) in tunnels and shafts to pump facilities in the south Delta. The
Notice of Preparation states that the new conveyance facilities would be used to increase
DWR’s ability to capture water during high flow events, while complying with all state
and federal regulatory requirements necessary to protect biological resources and
beneficial uses. The Notice of Preparation states that construction of the Conveyance
Project, if approved, would take approximately 13 years and would include new intake
facilities on the Sacramento River, connecting tunnels and shafts, forebays, a pumping
plant, and south Delta conveyance facilities that would extend to the existing State Water
Project pumping plant. Implementation of the Conveyance Project also “may involve”
modifications to one or more of the existing state water contracts.
In connection with the proposed Conveyance Project, DWR entered into an
(amended and restated) joint exercise of powers agreement with several state water
contractors to manage the design and construction of the Conveyance Project. DWR also
began negotiating state water contract amendments addressing cost and water
management issues related to the Conveyance Project, including planning and
environmental review costs.
22
In 2022, DWR issued a draft EIR for the Conveyance Project. In 2023, DWR
issued its final EIR.8 In addition to the proposed project (and a “no project” option), the
final EIR analyzed eight alternative projects. Every alternative proposed a conveyance
facility that would operate in conjunction with the existing south Delta export facilities to
create a “dual conveyance” system. (Italics omitted.)
PROCEDURAL BACKGROUND
B. The Bond Resolutions
In August 2020, DWR adopted the Delta Program General Bond Resolution (State
of California Department of Water Resources, Delta Program Revenue Bond General
Bond Resolution, No. DWR-DPRB-1, (Aug. 6, 2020)), the First Supplemental Resolution
(State of California Department of Water Resources, First Supplemental Resolution
Providing for the Issuance of Delta Program Revenue Bonds Series A, No DWR-DPRB-
2, (Aug. 6, 2020)), and the Second Supplemental Resolution (State of California
Department of Water Resources, Second Supplemental Resolution Providing for the
Issuance of Delta Program Revenue Bonds Series B, No DWR-DPRB-3, (Aug. 6, 2020))
(collectively, the Bond Resolutions) authorizing “Delta Program Revenue Bonds” and
establishing the terms and conditions under which DWR may issue such bonds. The
Bond Resolutions generally authorize the issuance of revenue bonds to fund and/or
reimburse (1) the costs of the environmental review, planning, engineering, and design of
water conveyance facilities that may be proposed for approval as part of the “Delta
Program,” and (2) if such facilities are approved by DWR, the costs of acquiring and
constructing those facilities.
The First and Second Supplemental Resolutions authorize the issuance of two
series of revenue bonds for specified purposes. The First Supplemental Resolution
authorizes the issuance of “Series A” bonds to pay for (or reimburse) the planning costs
8 DWR’s approval of the final EIR is the subject of separate litigation.
23
incurred before the acquisition and construction of any Delta Program facilities. The
Second Supplemental Resolution authorizes the issuance of “Series B” bonds to pay or
reimburse any “[c]apital [c]osts,” including acquisition and construction costs, for Delta
Program facilities.
The term “Delta Program” is defined in the Bond Resolutions as “facilities for the
conveyance of water in, about and through the Sacramento-San Joaquin Delta, subject to
such further specification thereof as [DWR] in its discretion may adopt.” The Bond
Resolutions further provide that “Delta Program facilities may include, but are not
limited to, water diversion intake structures located on the Sacramento River and a tunnel
to convey water to Banks Pumping Plant.”
Section 802 of the Delta Program General Bond Resolution provides that payment
of the bonds is secured by a first and direct charge and lien upon the “Revenues and all
money and securities held, and accounts established, under [and subject to the terms and
conditions of, the Bond Resolutions].” The term “Revenues” is defined to mean “all
moneys received” by DWR: (1) “under the Water Supply Contracts resulting from the
portion of the Delta Program the Capital Costs of which are paid or reimbursed with the
proceeds of the Bonds or earnings from the investment of proceeds of the Bonds . . . ” (2)
“from any other legally available source which [DWR] in its discretion determines to be
Revenues and so designates in a Certificate . . . filed with the Treasurer;” and (3) as
“income from the deposit or investment of moneys held in the Revenue Fund pursuant to
[the Bond Resolutions].” Section 805 Delta Program General Bond Resolution provides
that DWR “shall charge and collect amounts under the Water Supply Contracts sufficient
to return the costs of the Delta Program for which Bonds have been authenticated and
delivered without regard to whether or not [DWR] is able to construct, acquire or operate
any Delta Program facilities.”
In connection with the approval of the Bond Resolutions, DWR staff prepared a
memorandum explaining that while the Bond Resolutions would provide financing for
24
the proposed Conveyance Project, they would not commit DWR to approving that project
or any other water conveyance facility. (Vinay Behl, Chief Div. of Fiscal Services, DWR,
Spencer Kenner, Chief Counsel, DWR, mem. to Karla A. Nemeth, Director of DWR, July
30, 2020.) The staff memorandum also explains that adoption of the Bond Resolutions
would not involve the “ ‘approval’ ” of a “ ‘project’ ” for purposes of CEQA and that any
indirect environmental effects that may result are “too conceptual, diffuse, and
speculative to allow for meaningful environmental review.”
Regarding DWR’s authority to adopt the Bond Resolutions, the staff memorandum
suggests DWR is authorized to approve the Delta Program as “modifications” to the
Feather River Project under section 11260 of the CVP Act. DWR did not adopt a project
order modifying the Feather River Project to include the Conveyance Project or the Delta
Program.
C. The Validation Action
“ ‘[S]tatutory validation actions are designed to provide expedient, uniform
procedures by which public agencies can obtain binding judgments as to the validity of
public financing commitments such as “bonds, warrants, contracts, obligations or
evidence of indebtedness . . . .’ [Citation.] ‘They are expedited because they require
validation proceedings to be filed within 60 days of the public agency’s action (Code Civ.
Proc., §§ 860, 863) [and] are “given preference over all other civil actions” (id., § 867).’
[Citation.] ‘They are definitive because they are in rem proceedings that . . . result in a
judgment that is “binding . . . against the world” [citations], and cannot be collaterally
attacked, even on constitutional grounds.’ ” (Westlands Water Dist. v. All Persons
Interested (2023) 95 Cal.App.5th 98, 124; see California Commerce Casino, Inc. v.
Schwarzenegger (2007) 146 Cal.App.4th 1406, 1420-1421; Friedland v. City of Long
Beach (1998) 62 Cal.App.4th 835, 843; Code Civ. Proc., §§ 860, 864; Gov. Code,
§ 17700.)
25
DWR filed its validation complaint on August 6, 2020, seeking to validate its
authority under sections 11260 and 11700 of the CVP Act to (1) adopt and approve the
Bond Resolutions; (2) issue revenue bonds to pay and/or reimburse the costs to review,
plan, design, and, if and when appropriate, acquire and construct, any water conveyance
facilities proposed as part of the Delta Program; and (3) pledge revenues from the Delta
Program to secure repayment of the bonds.
Several state water contractors filed answers in support of validation. Numerous
other parties filed answers opposing validation. The opponents challenged the allegations
of the complaint and raised affirmative defenses based on DWR’s alleged failure to
comply with CEQA, the Delta Reform Act, and other laws. Sierra Club also filed a
petition for writ of mandate alleging that DWR’s approval of the Bond Resolutions
violated CEQA. The trial court subsequently consolidated the validation action and
CEQA writ proceeding for all purposes, designating the CEQA proceeding as the lead
case.
In December 2021, the trial court heard cross-motions for summary judgment and
summary adjudication on the CEQA-related claims and affirmative defenses. In January
2022, the trial court denied the motions filed by the parties opposing validation, and
granted DWR’s cross-motions, ruling that DWR did not need to complete environmental
review under CEQA before adopting the Bond Resolutions. Sierra Club, moved for a
new trial and for reconsideration of the January 2022 ruling. The trial court denied the
new trial motion, granted reconsideration, and reaffirmed its ruling in favor of DWR
North Coast Rivers Alliance, and DWR subsequently filed cross-motions for
summary judgment on the affirmative defenses related to alleged violations of the Delta
Reform Act and public trust doctrine. In addition, Howard Jarvis Taxpayers Association
filed a motion for summary adjudication relating to whether the bonds proposed for the
Delta Program constitute pre-Proposition 13 (Cal. Const. art. XIII A, as approved by
voters, Primary Elec. (June 6, 1978) voter-approved indebtedness and whether local
26
agencies would have authority to pay for the bonds by overriding Proposition 13’s one
percent cap on property taxes. The trial court denied the motions filed by North Coast
Rivers Alliance and Howard Jarvis Taxpayers Association and granted DWR’s cross-
motion.
The remaining validation issues proceeded to a bench trial conducted from May
15, 2023, through May 8, 2023. On August 25, 2023, the trial court issued its tentative
decision, concluding that DWR exceeded its delegated authority under the CVP Act when
it adopted the Bond Resolutions.
On January 16, 2024, the trial court affirmed its tentative decision and issued a
final statement of decision. The same day, the court entered a judgment dismissing the
CEQA petition and denying validation. This appeal followed.
REQUESTS FOR JUDICIAL NOTICE
Respondents Sierra Club, has filed a request for judicial notice of select pages of
the December 21, 2023, Executive Summary and final EIR for the Conveyance Project.
Appellants have requested judicial notice of DWR’s, Management of the California State
Water Project, Bulletin 132-2021, July 2024, Chapters 1 and 2. We grant both requests.
(Evid. Code, § 452, subds. (c) & (h).)
DISCUSSION
I
Validation Action
A. Arguments of the Parties
As discussed, section 11700 of the CVP Act authorizes DWR to issue revenue
bonds “[f]or the purpose of providing money and funds to pay the cost and expense of
carrying out any of the objects and purposes” of the act. Per section 11260, the objects
and purposes of the CVP Act include the Feather River Project. The Feather River
Project, in turn, is defined by the three reports referenced in section 11260, “subject to
such further modifications thereof” as DWR may adopt. (§ 11260.) DWR relied on these
27
statutes in adopting the Bond Resolutions to authorize the issuance of bonds for the
planning, review, and possible construction of the Delta Program.
The question presented in this appeal is whether the Delta Program, as defined in
the Bond Resolutions, qualifies as a “further modification” of the Feather River Project,
such that it falls within DWR’s delegated authority under section 11260. (See United
Farm Workers of America v. Agricultural Labor Relations Bd. (1995) 41 Cal.App.4th
303, 314 [an administrative agency is vested only with the powers expressly conferred by
the Legislature and cannot exceed those powers].) In denying validation, the trial court
reasoned that the Bond Resolutions were not within DWR’s delegated authority because
the definition of the Delta Program was overbroad and “untethered to the objectives,
purposes, and effects of the Feather River Project unit” of the CVP Act.
Appellants argue that the trial court erred in concluding that DWR lacks authority
to adopt the Bond Resolutions. Specifically, they contend that the trial court erred by
construing the definition of the Delta Program in isolation and limiting DWR’s
“modification” authority to minor or incremental changes. Viewed in the context of the
Bond Resolutions as a whole, appellants argue that the definition of the Delta Program—
facilities that convey water “in, about and through” the Delta—necessarily has a definite
and limited purpose, of moving water north to south for purposes of the State Water
Project. So construed, appellants contend that the Delta Program is an authorized
“modification” of the Feather River Project because any conveyance in, about, and
through the Delta will serve the function and purpose of the Feather River Project to
conserve surplus water in areas of abundance and convey such water to areas of
deficiency in the southern and western parts of the state. Thus, contrary to the trial
court’s ruling, appellants argue that the Bond Resolutions fall squarely within its lawful
authority under sections 11260 and 11700.
Further, to the extent there is any ambiguity in the definition of the Delta Program,
appellants argue that the trial court failed to apply contract interpretation principles and
28
consider extrinsic evidence that conclusively establishes the meaning of the Delta
Program and the purpose of the Bond Resolutions. Such extrinsic evidence includes that
(1) the Feather River Project is a key part of the statewide system of water conservation
and conveyance facilities designed to conserve water in northern areas for transfer and
distribution to areas of deficiency in the south and west; (2) the revenues pledged toward
repayment of the bonds derive from payments by state water contractors, so the proposed
Delta Program must provide water/services for which the state water contractors are
required to pay; (3) most of the state water contractors are located west and south of the
Delta and would not pay for a modification to the State Water Project that did not move
water to their service areas; (4) DWR has previously evaluated and proposed, as
“modifications” to the Feather River Project, “alternative” facilities for conveying water
from the north to south Delta, including the Peripheral Canal, California WaterFix, and
the currently-proposed Conveyance Project; (5) in the trial court proceedings, the parties
understood that the Delta Program was about moving water from the Sacramento River to
the pumping stations in the south Delta.
Respondents, in opposition, argue that the Delta Program is too ill-defined to
support validation. They argue that the language and history of section 11260
demonstrate that it was intended to grant DWR only limited discretion to approve modest
modifications (based on physical or engineering conditions) to the features of the Feather
River Project approved by the Legislature. Further, they contend any such modifications
must be consistent with the Feather River Project’s stated objective of “firm[ing]” the
supply of surplus waters in the Delta. Since nothing in the Bond Resolutions would limit
the use, direction, or purpose of waters conveyed by future Delta Program facilities,
respondents argue it is impossible to ascertain whether the Delta Program facilities will
be consistent with the features, scope, and purpose of the Feather River Project. Thus,
the definition is too vague and uncertain to support validation.
29
B. Standard of Review
The scope of DWR’s authority to “modify” the Feather River Project under section
11260 and its application to the Delta Program presents a question of law, which we
review de novo. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 604;
Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, 505.)
When interpreting a statute, our fundamental task is to determine the Legislature’s
intent so as to effectuate the purpose of the law. (Martinez v. Combs (2010) 49 Cal.4th
35, 51.) “In this search for what the Legislature meant, ‘[t]he statutory language itself is
the most reliable indicator, so we start with the statute’s words, assigning them their usual
and ordinary meanings, and construing them in context. If the words themselves are not
ambiguous, we presume the Legislature meant what it said, and the statute’s plain
meaning governs. On the other hand, if the language allows more than one reasonable
construction, we may look to such aids as the legislative history of the measure and
maxims of statutory construction. In cases of uncertain meaning, we may also consider
the consequences of a particular interpretation, including its impact on public policy.’ ”
(Ibid.)
Consistent with section 11126, we “liberally construe” the provisions of the CVP
Act to effectuate the purposes and objects of that act.
C. Analysis
Here, we conclude that DWR’s definition of the Delta Program exceeds the scope
of its authority under section 11260. Although section 11260 gives DWR authority to
modify the Feather River Project unit, the statute does not give DWR authority to add or
construct new “units” of the State Water Project. Such authority is instead found in
section 11290, which provides that DWR “may add additional units which are consistent
with and which may be constructed, maintained, and operated as a part of the [Central
Valley Project] . . . .” (§ 11290.)
30
Crucially, appellants rely not on section 11290 as authority for the Delta Program,9
but instead on section 11260. As a result, appellants must show that the Delta Program
qualifies as a “further modification” to the existing Feather River Project unit. At
minimum, this means the Delta Program must be tethered to the objectives, purposes, and
effects of the Feather River Project. The problem here is that the contours of the Delta
Program are so ill-defined that it is impossible to ascertain whether any future Delta
Program facilities will serve the objectives, purposes, and effects of the Feather River
Project, or instead constitute a new and different “unit” of the State Water Project. Thus,
we will affirm the trial court’s conclusion that the definition of the Delta Program is too
vague and uncertain to support validation.
1. Section 11260
We begin our analysis by examining the language of section 11260 in the context
of the statutory scheme of which it is a part. This leads us to the following observations:
First, the CVP Act of 1933 established the “Central Valley Project” as a single
integrated “project” consisting of multiple subsidiary “units.” (See United States v.
Gerlach Live Stock Co. (1950) 339 U.S. 725, 733; §§ 11104, 11125, 11200-11201.) It
defined and prescribed the authorized “units” in section 4 of the act. (Stats. 1933,
ch. 1042, § 4, pp. 2643-2646.) At the time, the authorized units included the Kennett
(now Shasta) Dam, Friant Dam, Contra Costa Conduit, San Joaquin Pumping System,
Madera Canal, and Friant-Kern Canal. (Ibid.) The CVP Act also empowered DWR’s
predecessor agency to “add additional units consistent with and which may be
constructed, maintained and/or operated as a part of said Central Valley Project . . . in
9 At the hearing on the merits, DWR explained that it was not relying on section
11290 because it would not be able to pledge revenues from a new “unit” to repayment of
the revenue bonds.
31
furtherance of the single object contemplated by . . . [the CVP Act].” (Stats. 1933,
ch. 1042, § 4, pp. 2644-2646.)
Second, with the enactment of the Water Code in 1943, the description of the
Central Valley Project was codified in Chapter 2, Division 6, of Part 3 (§ 11200 et seq.).
Importantly, each “unit” of the Central Valley Project was described in a separate article
within that chapter. For example, article 4 (§ 11220) described the “San Joaquin
Pumping System” unit,10 (Stats. 1943, ch. 368, pp. 1604-1747), and article 2 (§§ 11205-
11209) described the Shasta Dam unit. (Stats. 1943, ch. 368, pp. 1604-1747.) DWR’s
authority to “add additional units” was codified in article 10 (§ 11290).
Third, in 1951, the Legislature added article 9.5 to the CVP Act (§ 11260),
designating the Feather River Project as an additional “unit” of the Central Valley Project
and one that may be constructed, maintained, and operated by DWR “separate and apart”
from the units of the federal Central Valley Project. (Stats. 1951, ch. 1441, § 2, p. 3401;
California Farm Bureau Federation v. State Water Resources Control Bd. (2011)
51 Cal.4th 421, 429-430 & fn. 9; Alameda County Flood Control & Water Conservation
Dist. v. Department of Water Resources, supra, 213 Cal.App.4th at p. 1197.) As amended
in 1959, section 11260 describes the facilities which comprise the Feather River Project
unit by reference to the 1951, 1955, and 1959 Reports, “subject to such further
modifications thereof” as DWR may adopt. (§ 11260.)
Since DWR already had the authority to add new units under section 11290, it is
evident the Legislature intended DWR’s “further modifications” authority in section
10 It provided: “The unit designated as the San Joaquin Pumping System consists of
a channel or canal with all necessary dams, pumping plants, conduits, and other works
which the [Department] determines to be necessary to convey a supply of water for
irrigation and other beneficial uses from the lower Sacramento River into the San Joaquin
Delta, and also adequate to convey and transport not less than 3,000 cubic feet of water
per second from a point on the lower San Joaquin River southerly to the mouth of Fresno
Slough.” (Stats. 1943, ch. 368, pp. 1604-1747.)
32
11260 to be more circumscribed. Exactly how much more circumscribed is subject to
reasonable dispute. On one hand, as the trial court explained, the commonly understood
meaning of the word “modification” connotes a moderate or incremental change which
“introduces new elements into the details, or cancels some of them, but leaves the general
purpose and effect of the subject-matter intact.” (Oxford English Dict. Online (2025)
<https://www.oed.com/dictionary/modifi-cation_n?tab=meaning_and_use#36537263>
[as of Dec. 29, 2025]; Webster’s 3d New Internat. Dict. 1452 (1965) p. 798; see Black’s
Law Dict. (6th ed. 1990) p. 1004, col. 1; Biden v. Nebraska (2023) 600 U.S. 477, 494;
MCI Telecommunications Corp. v. AT&T Co. (1994) 512 U.S. 218, 225; Peralta v.
Hispanic Business, Inc. (9th Cir. 2005) 419 F.3d 1064, 1072.) Under this view, the
“further modifications” language grants DWR only limited discretion to approve minor
modifications that would become necessary based on physical or engineering conditions
encountered during construction.
On the other hand, appellants argue that the “further modification” authority must
be construed in light of the expansive modifications to the Feather River Project
previously approved by the Legislature and the broad authority delegated to DWR to
carry out the CVP Act. They contend this shows the Legislature intended DWR to have
essentially plenary authority to determine what facilities are necessary to carry out the
Feather River Project.
We deem it unnecessary to delve into the nuances of this question. For purposes
of this appeal, it is sufficient that we conclude (1) DWR’s authority to make “further
modifications” to the Feather River Project under section 11260 is not so broad as to
permit DWR to add entirely new and different “units” to the State Water Project; and
(2) at minimum, any “further modifications” must be consistent with the Feather River
Project’s features and tethered to its purposes, objectives, and effects.
We reach this conclusion based mainly on a comparison of the language in
sections 11260 and 11290. But we find additional support for our conclusion in other
33
sections of the CVP Act, namely those in which the Legislature gave DWR the authority
to make “modifications” to other “units” of the Central Valley Project or State Water
Project. For example, section 11270 (article 9.7), which approved the North Bay
Aqueduct as an additional unit of the State Water Project, provides: “The unit of the
North Bay Aqueduct as set forth in Bulletin No. 60 . . . , subject to such modification
thereof as the department may adopt, . . . may be constructed by the department and
maintained and operated by it . . . as a feature of the California Water Plan, and as a unit
of the Central Valley Project, separate and apart from any or all other units thereof.”
(§ 11270, italics added; Stats. 1957, ch. 2252, § 2, pp. 3917-3918.) Likewise, section
11252 (article 9.1) provides: “The unit designated as Hogan Dam and Reservoir,
substantially in accordance with the recommendations of the Chief of Engineers in House
Document No. 545, 78th Congress, Second Session, . . . subject to such further
modifications thereof as the department may adopt, . . . may be constructed, maintained,
and operated separate and apart from any or all other units thereof.” (§ 11252, italics
added.) Further, section 11276 (article 9.9) provides: “Black Butte Dam and Reservoir,
substantially in accordance with the recommendations of the Chief of Engineers in House
Document Numbered 649, 78th Congress, Second Session, . . . subject to such
modifications thereof as the department may adopt, . . . may be constructed and operated
separate and apart from any or all other units thereof.” (§ 11276, italics added.) In each
instance, the Legislature established a new “unit” as described in a referenced report or
document, “subject to” modification by DWR. This demonstrates the Legislature’s intent
to limit DWR’s “modifications” authority to the “unit” designated in that section.
Section 11260 uses the words “modifications thereof” to refer to the Feather River
Project unit described in the three reports mentioned in the statute. It follows that, to
support validation, DWR must show the Delta Program qualifies as a “further
modification” to that unit. DWR lacks the authority to approve a new State Water Project
“unit” under the guise of a “further modification” of the Feather River Project.
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2. The Feather River Project
Next, we consider what are the features, purposes, and objectives of the Feather
River Project. As discussed, section 11260 does not itself describe the components of the
project. (§ 11260.) Instead, the statute identifies the Feather River Project by reference
to three reports issued in the 1950’s. (Ibid.) As the trial court held, the reports describe
the project in “two distinctly different fashions” in terms of its “ ‘major features’ ” and
“its purposes and objectives.”
There is no dispute concerning the original features of the Feather River Project.
They include the Oroville Dam (with hydroelectric power plant and afterbay), a “Delta
Cross Channel” to carry water from the Sacramento River to the Delta, the San Luis
Reservoir and Forebay, Buena Vista Forebay, Quail Lake Afterbay, various pumping
stations, and conveyance systems (including aqueducts and canals) to transport water
from the Delta to the Bay Area and Southern California.
Appellants disagree, however, about the Feather River Project’s purposes and
objectives. Appellants argue that the Feather River Project has a single “primary
purpose,” which is the same as the State Water Project: to conserve surplus water in
areas of abundance in the northern part of the state and convey it to areas of deficiency in
the south and southwest of the state. In contrast, respondents contend that the Feather
River Project has multiple objectives, which include: increasing flood protection,
producing hydroelectric power, controlling salinity in the Delta, preserving fish and
wildlife, and “firm[ing]” the supply of excess waters in the Delta available for export.
Respondents contend the 1951, 1955, and 1959 Reports show the purpose of the Feather
River Project is not simply to convey water from north to south, but also to stabilize and
preserve the Delta estuary by boosting “through Delta” flows.
Respondents have the better argument. Even if we accept that water conservation
and redistribution were a primary objective of the Feather River Project, the evidence
shows that the project additionally was designed with the secondary objective of
35
preserving and increasing water flows through the Delta to control salinity, protect fish
and wildlife, and “firm” the supply of surplus water available for export.
3. The Delta Program Definition
We conclude our analysis by inquiring whether the Delta Program, as defined by
the Bond Resolutions, qualifies as a “further modification” to the Feather River Project,
i.e., whether it is aligned with the Feather River Project’s features and serves its same
purposes, objectives, and effects.
As the trial court noted, the Delta Program definition consists of two sentences.
“The first is worded broadly and generically. It does not identify any specific facilities to
be modified, nor does it identify any specific public work to be constructed. In contrast,
the second sentence refers to potential structures, but does so merely for illustrative
purposes (i.e., the facilities ‘may include’). [¶] [W]ith reference to the contemplated
water conveyance facilities, the definition imposes no apparent limitations. It restricts
neither the direction nor the purpose of the contemplated water conveyance. . . . [T]he
definition would appear to confer on DWR nearly infinite authority as to the direction,
purposes, and objectives of any water conveyance facilities, as they would be subject to
‘further specification . . . as DWR may in its discretion adopt.’ ”
The trial court concluded that the definition renders the Bond Resolutions too
vague and uncertain to support a validation judgment because it “leaves the door open”
for DWR to approve water conveyance facilities wholly unrelated to the Feather River
Project. We agree.
The Delta Program’s scope is so opaque and ill-defined as to afford DWR nearly
unlimited discretion to specify the facilities for which the bonds will be issued. There is
nothing in the definition that restricts the use of the water, its direction, or its purpose.
There is no requirement that Delta Program facilities even serve the broader purposes of
the State Water Project. As long as the facility proposes to convey water in, about, and
36
through the Delta, the Bond Resolutions would give DWR authority to issue an unlimited
amount of bonds to finance the work.11
Consequently, we agree with respondents that DWR exceeded its delegated
authority when it adopted the Bond Resolutions. The mere fact that a Delta Program
facility will convey water in, about, and through the Delta area is insufficient to
demonstrate that the facility is a “further modification” of the Feather River Project.
Validating the Bond Resolutions would essentially give DWR carte blanche to issue
bonds for any Delta conveyance facility it may choose, irrespective of whether the
facility has any connection to the Feather River Project, as defined.
Appellants argue that the meaning of the Delta Program must be construed in the
context of the pledge to repay the bonds with revenues received under the state water
contracts. They contend the pledge of revenues shows that the Delta Program facilities
must serve the State Water Project purposes for which DWR can properly impose charges
under the state water contracts. However, just because DWR intends to use revenue from
the state water contracts to repay the bonds does not establish that DWR has the statutory
authority to approve the Delta Program as a “further modification” of the Feather River
Project. Moreover, the fact that the pledge of revenues was included in the Bond
Resolutions says nothing about whether DWR had the authority to make that pledge in
the first instance.12 We note that multiple parties opposed to validation, including several
state water contractors, challenged the lawfulness of the pledge of revenues.
11 Although the Delta Program definition uses the phrase “in, about and through” the
Delta, the illustrative example given in the Bond Resolutions (of a tunnel from the
Sacramento River to the Banks Pumping Plant) demonstrates that the water need not be
conveyed “in” and “through” the Delta estuary itself to meet that definition.
12 As discussed, the pledge and priority provisions of the Burns-Porter Act apply to
revenues from facilities constructed with funds made available under that act. (Warne v.
Harkness, supra, 60 Cal.2d at p. 586.) All such revenues are declared to constitute a trust
37
Appellants additionally argue that by referring to section 11260 in the recitals to
the Bond Resolutions, DWR “clearly” signaled that the Delta Program is intended to be a
“further modification” of the Feather River Project.13 But this is circular reasoning.
Citing section 11260 as authority does not ipso facto mean that any Delta Program
conveyance will be a “further modification” of the Feather River Project.14 It simply
begs the question of whether the Delta Program, as defined in the Bond Resolutions,
comports with section 11260.
We likewise reject appellants’ contention that the second sentence of the Delta
Program definition—stating that the Delta Program facilities may include water diversion
intake structures and a tunnel to convey water to the pumping plant—informs its
meaning. This “illustrative” language merely identifies potential facilities that DWR may
consider in the future as part of the Delta Program; it does not delimit the scope of
DWR’s discretion.
Appellants additionally argue that the trial court erred by failing to consider
extrinsic evidence establishing that the Delta Program is a lawful “further modification”
of the Feather River Project. However, absent an affirmative showing that the trial court
failed to properly weigh the evidence that it was required to consider, we must presume
that the trial court correctly performed its duties. (Election Integrity Project California,
Inc. v. Lunn (2025) 108 Cal.App.5th 443, 449; Evid. Code, § 664; see Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) In any event, appellants have failed to show
fund and are pledged for the purposes set forth in the Burns-Porter Act. (Warne, at
p. 585; § 12937, subd. (b).)
13 The Bond Resolutions recite that the “Delta Program shall be maintained and
operated by the Department separate and apart from all other units of the Central Valley
Project,” but reach no conclusion about whether the conveyance facilities contemplated
by the Delta Program are a “modification” of a Central Valley Project unit.
14 Indeed, in the trial court, DWR argued that “[s]ection 11260 itself imposes no
standard or boundary on the Department’s discretion . . . .”
38
that the cited extrinsic evidence establishes that the Delta Program is a “further
modification” of the Feather River Project.
To begin, appellants cannot rely on the Delta Cross Channel to justify the Delta
Program. As one of the original features of the Feather River Project, the Delta Cross
Channel involved a proposal to excavate a new channel from the Sacramento River to
Georgiana Slough, along with dredging existing channels, to transport water naturally,
north to south, from the Sacramento River to the San Joaquin River delta. The Delta
Cross Channel never contemplated a wholesale diversion of water around or under the
Delta.15 In contrast, there is no language in the Bond Resolutions limiting the direction,
purposes, and objectives of the Delta Program facilities. The Bond Resolutions would
give DWR nearly unfettered discretion to finance any Delta conveyance facility, even one
that is completely unrelated to the Delta Cross Channel. Thus, the Delta Program cannot
be justified as a “further modification” of the Delta Cross Channel.
For similar reasons, we find irrelevant DWR’s history of evaluating “alternative”
methods of moving water north to south through the Delta, such as the Peripheral Canal
and the California WaterFix. Even if we assume DWR had the authority to adopt such
conveyances as modifications of the Feather River Project and/or State Water Project16—
15 The Burns-Porter Act illustrates this point. In describing the features of the State
Water Project, the act refers not to the Delta Cross Channel, but to “[m]aster levees,
control structures, channel improvements, and appurtenant facilities in the Sacramento-
San Joaquin Delta . . . .” (§ 12934, subd. (d)(3).) This supports the conclusion that the
Delta diversion features contemplated by the Feather River Project consisted of Delta
channel improvements and appurtenant facilities, not isolated conveyance facilities.
16 We acknowledge that DWR adopted project orders purporting to authorize the
Peripheral Canal and California WaterFix as “modifications” of the Feather River Project
and Central Valley Project, respectively, under section 11260. But DWR’s authority to do
so was never adjudicated, and while its interpretation of section 11260 is entitled to
consideration and respect, it is not binding. (Associated General Contractors of
California, Inc. v. Department of Industrial Relations (2025) 108 Cal.App.5th 243, 266.)
“The court, not the agency, has final responsibility for interpreting the law.” (Ibid.)
39
an issue we need not decide—this has no bearing on whether the nebulous Delta Program
is a further modification of the Feather River Project. Stated differently, even if DWR
had the authority to approve the Peripheral Canal and California WaterFix project
proposals, this would not establish that DWR has the authority to approve any facility for
the conveyance of water in, about, and through the Delta as a modification under section
11260.
Nor do we find it relevant that DWR already commenced CEQA review of a
particular Delta Program facility (i.e., the Conveyance Project). Appellants did not seek
validation of bond financing for the Conveyance Project or any specific Delta
conveyance facility. Instead, appellants relied on the broadly worded Delta Program
definition, which essentially gives DWR discretion to authorize bonds for any facilities
conveying water in, about, and through the Delta, irrespective of its connection (if any) to
the Feather River Project.
Finally, it is immaterial that some state water contractors have agreements with
DWR to contribute to the costs of evaluating potential Delta conveyance facilities. The
fact that some state water contractors may be willing to support the evaluation of new
Delta conveyance facilities is not evidence that the Delta Program, as defined, constitutes
a “further modification” of the Feather River Project within the meaning of section
11260.
In sum, we agree that DWR exceeded its delegated authority when it adopted the
Bond Resolutions. Even liberally construing section 11260, DWR’s authority to make
“further modifications” to the Feather River Project is not so broad as to allow any Delta
conveyance facility. At a minimum, any such “modification” must be aligned with the
Furthermore, the Legislature’s adoption of a bill designating the Peripheral Canal as a
new “unit” to the Central Valley Project undermines the argument that DWR had the
power to authorize the Peripheral Canal without legislative approval under section 11260.
(See also § 12251 [authorizing DWR to exercise powers under CVP Act to construct
Feather River recreation project].)
40
Feather River Project’s features and serve its purposes, objectives, and effects. The
problem with the Delta Program’s definition is that it is so amorphous that it is
impossible to ascertain whether future Delta Program facilities will be consistent with the
features, scope, and purpose of the Feather River Project as defined in section 11260. Or,
as the trial court held, the definition of the Delta Program fails because it is “untethered
to the objectives, purposes, and effects of the Feather River Project unit.” Accordingly,
we find the definition too opaque to support the requested validation judgment.
In addition, aside from the overly broad definition of the Delta Program, we share
the concerns expressed by some respondents that a judgment validating these Bond
Resolutions could improperly foreclose future challenges related to the bonds. For
example, the Bond Resolutions pledge to repay the bonds using “Revenues,” broadly
defined to include not only monies received under state water contracts, but also monies
received from “any other legally available source which [DWR] in its discretion
determines to be Revenues . . . .” This is problematic because a judgment validating the
Bond Resolutions could be construed as an adjudication that DWR has the discretion to
determine what is (and what is not) a “legally” available source of revenues. No such
determination can be made on the record before us.
Likewise, section 805 of the Bond Resolutions provides that DWR “shall charge
and collect amounts under the Water Supply Contracts sufficient to return the costs of the
Delta Program for which Bonds have been authenticated and delivered . . . .” A judgment
validating this language could be construed as adjudicating the question of whether DWR
has the contractual right to charge state water contractors for Delta Program capital costs.
In the trial court, DWR conceded that this is a contentious issue and DWR sought to
“tailor” the validation judgment to avoid it. But DWR’s authority to charge state water
contractors for the costs of the Delta Program—either under existing contracts or
amended contracts—is an integral component of the bond financing arrangement. (See
Graydon v. Pasadena Redevelopment Agency (1980) 104 Cal.App.3d 631, 645.)
41
Removing that issue from the scope of the validation judgment would mean that the
primary method of repaying the bonds would remain unsettled and subject to challenge.
Such a result is at odds with the purpose of the validation statutes. (See Friedland v. City
of Long Beach, supra, 62 Cal.App.4th at p. 842.) We are not persuaded that the
validation process can be conducted in such a piecemeal fashion. (Katz v. Campbell
Union High School Dist. (2006) 144 Cal.App.4th 1024, 1032; Westlands Water Dist. v.
All Persons Interested, supra, 95 Cal.App.5th at p. 126.)
For all these reasons, we conclude DWR has failed to meet its burden of
demonstrating that the Delta Program is within the scope of its delegated authority under
section 11260. Because DWR’s authority to issue bonds to finance the Delta Program is
derivative of its argument that the Delta Program is an authorized “modification” of the
Feather River Project under section 11260, we affirm the trial court’s decision to deny
validation of the Bond Resolutions. In view of our holding, it is unnecessary to address
the merits of Howard Jarvis Taxpayers Association’s argument that the Bond Resolutions
cannot be validated because the proposed bonds would violate the state debt limit set
forth in article XVI, section 1 of the California Constitution.
II
Cross-Appeals
Respondents Sierra Club, North Coast River Alliance, Tulare Lake, and the Public
Agencies cross-appeal from the trial court’s orders denying respondents’ motions for
summary judgment/adjudication and granting DWR’s cross-motions for summary
judgment/adjudication, as to the claims and affirmative defenses involving CEQA, the
Delta Reform Act, or the public trust doctrine.
Appellants argue that the cross-appeals should be dismissed as untimely because
the respective notices of appeal were filed after the 30-day time limit in Code of Civil
Procedure section 870, subdivision (b). If the appeals are not dismissed, appellants
contend they should be denied on the merits.
42
In light of our decision to affirm the judgment denying validation of the Bond
Resolutions, we need not and do not reach any of the issues relating to the cross-appeals,
including the timeliness of the notices of appeal. (Gonzalez v. Munoz (2007)
156 Cal.App.4th 413, 419 [an appellate court will not review questions that are moot and
only of academic importance]; see Quantification Settlement Agreement Cases (2011)
201 Cal.App.4th 758, 842.)
DISPOSITION
The judgment denying validation is affirmed. Respondents shall recover their
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
\s\ ,
Krause, J.
We concur:
\s\ ,
Duarte, Acting P. J.
\s\ ,
Renner, J.
43