Aqualliance v. U.S. Bureau of Reclamation

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

I. INTRODUCTION

Plaintiffs, 1 various water resource management and conservation organizations, challenge Defendants' 2 "10-year water transfer program to move water from sellers located upstream of the Sacramento/San Joaquin Delta ('Delta') to willing buyers south of the Delta" (the "Project"). ECF No. 16, First Amended Complaint ("FAC") at ¶ 2. Specifically, Plaintiffs assert Reclamation's and the Authority's creation and approval of the Project's Final Long-Term Water Transfers Environmental Impact Statement/Environmental Impact Report 3 ("FEIS/R") violated the National *985 Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , the Central Valley Project Improvement Act ("CVPIA"), Public Law 102-575 4 , and the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code §§ 21000 et seq. Plaintiffs also assert FWS's approval of the Project's Final Biological Opinion ("BiOp") and Incidental Take Statement ("ITS") violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. FAC at ¶ 1.

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

II. FACTUAL AND PROCEDURAL BACKGROUND

Reclamation manages the Central Valley Project ("CVP") (Administrative Record ("AR") 5 25427), one of "the largest and most important water projects in the United States." San Luis & Delta-Mendota Water Auth. v. Jewell , 747 F.3d 581 , 591 (9th Cir. 2014) (" San Luis v. Jewell "). "The CVP consists of a series of dams[;] ... 21 reservoirs; 11 hydropower plants; and 500 miles of canals and aqueducts," id. at 594 (citation omitted), that deliver irrigation water to the Sacramento and San Joaquin Valleys, and water to cities and industries in Sacramento, the San Joaquin Valley, and the east and south San Francisco Bay Areas. AR 25427. The key purpose of the CVP is "to transfer water from the Sacramento River [in Northern California] to water-deficient areas in the San Joaquin Valley and from the San Joaquin River to the southern regions of the Central Valley." San Luis v. Jewell , 747 F.3d at 591 (citation omitted).

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

These transfers, which have occurred for decades (AR 25367), are proposed as a means to address the "severe reduction in CVP water supplies" that occur "during dry hydrological years" in the San Francisco Bay Area and the San Joaquin Valley. AR 25365, 25367. The transferred water would be made available through groundwater substitution, cropland idling, crop shifting, reservoir release, and conservation. AR 14786, 25375-25377. The Project would make up to 511,094 acre-feet 6 ("AF") of water available for transfer each year through these measures, depending on hydrological conditions. AR 25461. Buyers and sellers are required to submit CVP transfer proposals to Reclamation, who must approve them. AR 25436; CVPIA § 3405(a)(1). Similarly, *986 transfer proposals with State Water Contractors ("SWC") and transfers that use SWP facilities require approval by the California Department of Water Resources ("DWR"). AR 25444.

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

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

III. STANDARDS OF DECISION

A. NEPA

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

B. APA

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

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

* * *

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

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

* * *

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

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

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

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

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

But "the deference accorded an agency's scientific or technical expertise is not unlimited." Brower v. Evans , 257 F.3d 1058 , 1067 (9th Cir. 2001). Deference is not owed if "the agency has completely failed to address some factor consideration of which was essential to making an informed decision," id. (internal citation and quotation omitted), and courts are not required to defer to an agency conclusion that runs counter to that of other agencies or other individuals with specialized expertise in a particular technical area. See, e.g. , *988 Am. Tunaboat Ass'n v. Baldrige , 738 F.2d 1013 , 1016-17 (9th Cir. 1984) (agency decision under the Marine Mammal Protection Act was not supported by substantial evidence because agency ignored data that was product of "many years' effort by trained research personnel").

C. CEQA 7

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

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

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

D. Summary Judgment

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

As a matter of law, a more traditional summary judgment burden-shifting approach could apply to Plaintiffs' Section 7(a)(2) failure to consult claim(s). 8 However, in practice, the parties present this entire case as one that can be resolved on cross motions for summary judgment based upon the Court's review of the AR. See generally ECF No. 35 (Joint Scheduling Report); see also ECF No. 45 at 6. Judicial review of claims brought under CEQA is also limited to the administrative record.

IV. ANALYSIS

The administrative record in this case is enormous-the FEIS/R alone is over 1,000 pages-and, understandably, the parties' briefs are lengthy, with dozens of issues raised under CEQA, NEPA, and the ESA. While the briefs are generally cogent, they are not flawlessly organized, making the task of teasing out the various threads of *990 argument all the more difficult. The Court has spent many hundreds of hours attempting to address the matters raised as thoroughly as is reasonably possible. It has no intention of doing it twice.

A. CEQA/NEPA Claims

1. CEQA Lead Agency

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

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

The lead agency must independently participate, review, analyze and discuss the alternatives in good faith. Moreover, the agency's opinion on matters within its expertise is of particular value. As the process continues, the lead agency may determine an environmentally superior alternative is more desirable or mitigation measures must be adopted. In sum, the lead agency plays a pivotal role in defining the scope of environmental review, lending its expertise in areas within its particular domain, and in ultimately recommending the most environmentally sound alternative.

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

California Public Resources Code § 21067 defines a " '[l]ead agency' " as "the public agency 9 which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment." In contrast, a " '[r]esponsible agency' means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project." Id. , § 21069. "Where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing an EIR or negative declaration for the project. This agency shall be called the lead agency." 14 Cal. Code Regs. § 15050(a).

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

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

(b) If the project is to be carried out by a nongovernmental person or entity, the lead agency shall be the public agency with the greatest responsibility for *991 supervising or approving the project as a whole.

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

* * *

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

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

CEQA Guidelines § 15051.

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

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

Plaintiffs cite PCL I in support of their assertion that the Authority "does not have principal responsibility for implementing" the Project-a statewide transfer program between 28 seller agencies, 12 *992 buyer agencies, [ ] DWR, and [Reclamation]." ECF No. 45 at 9 (citing AR 25370-72 (listing buyer and seller agencies) ). The Authority's boundaries are coextensive with its 29 member water service contractors within the western San Joaquin Valley and San Benito and Santa Clara counties. These boundaries do not encompass any of the participating seller agencies, nor two key buyer agencies: the East Bay Municipal Utility District and the Contra Costa Water District. Furthermore, the Authority's purposes and powers are restricted by law to providing benefits to its member organizations. 10 Moreover, the FEIS/R acknowledges that the transfers "require approval from Reclamation and/or [DWR], which necessitate compliance with NEPA and CEQA." AR 25368. It is undisputed that Reclamation serves as the "action agency"-the rough equivalent of a lead agency under CEQA-for purposes of NEPA compliance. See AR 25365. Plaintiffs insist that DWR should play a parallel role for purposes of CEQA because "[f]or water conveyed through the SWP system, DWR must [ ] determine if the transfer can be made without injuring any legal user of water and without unreasonably affecting fish wildlife or other instream beneficial uses and without unreasonably affecting the overall economy or environment of the county from which the water is being transferred." AR 25444.

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

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

The Court finds the situation in CBD v. San Bernardino analogous to the present case. Although some of the transfers at issue in the present case may originate and terminate in water districts outside the Authority's boundaries, the Authority has a more significant role in the overall project than does DWR. The Court agrees with the Authority that it is important to remember that "[w]ater transfers are voluntary actions proposed by willing buyers and sellers and are not initiated by state agencies." ECF No. 48 at 34 (citing AR 27422). DWR will not be a party involved in negotiating the transfers identified in the EIS/EIR, nor will the agency be party to any of the transfer contracts. AR 27422. The Authority, not DWR, has the greatest responsibility for determining the water needs of its members and in helping to obtain necessary water for those needs. See CEQA Administrative Record ("CAR") 11 14; AR 25370-71, 25430-32 "DWR will have a coordination role in the process because it will coordinate with Reclamation on review of potential transfer information packages (to help ensure consistency between CVP-related transfers and non-CVP-related transfers). DWR may also help facilitate transfers through [SWP] facilities in some years." AR 27422. The Court agrees with the Authority that "[t]his is not a role with 'principal responsibility' such that DWR should be the CEQA lead agency." ECF No. 48 at 34. DWR, notably, has no responsibility over transfers that do not pass through its facilities. See AR 25443-44, 27421-22.

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

Plaintiffs make several additional arguments on the lead agency issue that merit serious consideration. First, as mentioned, a lead agency is defined as having "authority to require feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment." CEQA Guidelines at § 15041. Plaintiffs argue that the Authority fails to satisfy this definition because it has no authority over transfers *994 in which it is not involved. ECF No. 51 at 2. More specifically, Plaintiffs emphasize that the FEIS/R relies on the mitigation measures that depend upon DWR for implementation, including "WS-1" and "GW-1", 12 which are designed to reduce impacts to surface water and groundwater supplies.

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

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

The Authority responds that "as lead agency, it adopted mitigation measures that are legally feasible and may be fully enforced by Reclamation through its regulatory authority, in compliance with CEQA," ECF No. 58 at 16. Building on the CEQA Guideline definition of a lead agency as one having "authority to require feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment," CEQA Guideline § 15126.4(a)(2) provides: "Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments. In the case of the adoption of a plan, policy, regulation, or other public project, mitigation measures can be incorporated into the plan, policy, regulation, or project design." Although the Court can locate no cases interpreting these Guidelines provisions in relevant ways, additional guidance can be found in other, similar provisions of CEQA that require mitigation measures be "fully enforceable through permit conditions, agreements, or other measures." Cal. Pub. Res. Code § 21081.6 . Interpreting this related provision, at least one California *995 court has found that an agency may adopt mitigation measures made enforceable through another agency with regulatory authority over the impact being mitigated. Citizens Opposing a Dangerous Env't v. Cnty. of Kern , 228 Cal. App. 4th 360 , 383, 174 Cal.Rptr.3d 683 (2014) (permitting lead agency to rely on a condition requiring compliance with FAA rules and regulations). Accordingly, the Court concludes that a lead agency does not lack "authority" to require feasible changes simply because it lacks ultimate enforcement authority over the mitigation measure. More would be required to demonstrate a mitigation measure is unenforceable.

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

Finally, Plaintiffs are correct that most if not all of the Project's potentially significant impacts to water resources fall outside the boundaries of the Authority's member districts. 13 The Authority counters by citing CEQA Guidelines section 15051(a), which provides: "If the project will be carried out by a public agency, that agency shall be the lead agency even if the *996 project would be located within the jurisdiction of another public agency." Here, the Authority is anticipated to be negotiating transfer agreements with potential sellers on behalf of participating members. AR 27421; see also AR 25442-44 (Authority identified as a common participant in most past water transfers); AR 25370 (Authority members identified as majority of potential buyers for transfers analyzed in FEIS/R). The fact that potentially significant impacts of the Project lie outside the Authority's boundaries does not render them per se an improper lead agency.

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

2. CEQA Project Description

Plaintiffs allege that the Project description violates CEQA because: (1) the description of the timing, amount, location, and frequency of transfers are entirely uncertain; and (2) the FEIS/R's "carriage water" project component improperly conflates a mitigation measure with the project itself and is completely undefined. ECF No. 45 at 12-17. 14

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

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

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

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

(c) A general description of the project's technical, economic, and environmental characteristics, considering the *997 principal engineering proposals if any and supporting public service facilities.

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

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

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

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

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

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

CEQA Guidelines § 15124 (emphasis added).

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

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

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

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

In contrast, Citizens for a Sustainable Treasure Island v. City & County of San Francisco , 227 Cal. App. 4th 1036 , 174 Cal.Rptr.3d 363 (2014), concerned an EIR approving the re-development of Naval Station Treasure Island into a mixed-use community. Project opponents argued that the EIR's project description was "unstable and erratic" and that the plan was nothing more than a "conceptual land use map." Id. at 1052 , 174 Cal.Rptr.3d 363 . The Treasure Island court disagreed, finding that the "EIR made an extensive effort to provide meaningful information about the project, while providing for flexibility needed to respond to changing conditions and unforeseen events that could possibly impact the Project's final design." Id. at 1053 , 174 Cal.Rptr.3d 363 . The EIR described permitted uses of the project area and provided detailed standards that would govern development, including (through incorporation by reference) plans showing street layouts and concepts for the shapes of new buildings and landscapes. Id. The court acknowledged, however, that, "as a matter of necessity at this stage in the planning process, there are many Project features that are subject to future revision, and quite likely will be the subjects of supplemental review before the final Project design is implemented." Id. at 1054 , 174 Cal.Rptr.3d 363 . The court did not fault the EIR "for not providing detail that, due to the nature of the Project, simply does not now exist." Id. (citing CEQA § 15146 ("The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the *999 EIR.").) As Treasure Island points out, courts need not "require[ ] resolution of all hypothetical details prior to approval of an EIR." Id.

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

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

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

Delta conveyance capacity would be available when conditions for sensitive species are acceptable to NOAA Fisheries and USFWS, typically from July through September, but groundwater substitution and cropland idling crop shifting transfers would be available from April through September. Storing water in Shasta Reservoir from April through June would help facilitate these types of transfers; however, Shasta Reservoir has a very limited capacity to store transfer water from April through June because of downstream temperature requirements. Reclamation is required by [State Water Resources Control Board] Water Rights Orders 90-05/91-01 to meet average daily temperature requirements as far downstream as practical when temperatures could affect fish. To meet requirements, Reclamation must carefully manage the cold water pool in Shasta Reservoir by releasing larger quantities of water earlier in the season; larger flows maintain cooler temperatures for a longer distance downstream. Reducing releases to hold transfer water in storage could affect Reclamation's ability to meet these downstream temperature requirements. Reclamation would only consider storing water for transfers if it would not affect releases for temperature or if it could be "backed up" into another reservoir (by reducing releases from that reservoir). Backing up water may be possible if the Delta is in balanced conditions and instream standards are met. The decision to back up transfer water would be *1000 made on a case-by-case basis, but storage is analyzed in this EIS/EIR so that the analysis is complete in the event Reclamation determines that storage is possible in a specific year.

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

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

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

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

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

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

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

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

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

*1001 would be subject to Reclamation's annual review and approval.

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

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

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

*1002 Program EIRs are designed to work this way under CEQA. "They may be used to address impacts and mitigation measures that apply to the program as a whole to simplify later environmental review for program activities." Ctr. for Biological Diversity v. Dep't of Fish & Wildlife , 234 Cal. App. 4th 214 , 233-34, 183 Cal.Rptr.3d 736 (2015) (" CBD v. DFW ") (citing CEQA Guidelines § 15168(d) ). "They may also be used to consider broad programmatic issues for related actions at an early planning stage when the agency has greater flexibility to deal with basic problems or cumulative impacts." Id. (citing CEQA Guidelines § 15168 (b) ). "The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR." CEQA Guidelines § 15146. "Accordingly, the CEQA Guidelines require an EIR to provide sufficient information in light of what is reasonably feasible." CBD v. DFW , 234 Cal. App. 4th 214 at 233-34, 183 Cal.Rptr.3d 736 .

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

In effect, after a sufficiently comprehensive and specific program EIR has been certified, CEQA allows much of the initial site-specific review to occur outside a formal CEQA process and beyond public view. CEQA does not require the *1003 Department to engage in a public process when it determines whether the impacts from a site-specific project were addressed and adequately mitigated in the program EIR.

Id. at 239 , 183 Cal.Rptr.3d 736 . It just so happened that in CBD v. DFW , DFW had already developed an evaluation protocol to determine, when faced with project-level decisions, whether further site-specific review was needed. The evaluation protocol, the CBD v. DFW court concluded, was "a type of 'written checklist or similar device' " that CEQA allows a public agency to use to document site-specific impacts. Id. However, nothing in CBD v. DFW or the Guidelines requires the program EIR to articulate/define such a checklist. It appears permissible for the public agency to develop and apply such a checklist or similar device upon approval of specific programs (in this case specific transfers).

The Court agrees with the Authority that the FEIS/R in this case uses the CEQA process as it was intended to be used: to describe and analyze a series of individual activities having generally similar impacts that can be mitigated in similar ways.

b. Carriage Water

The FEIS/R indicates that the preferred alternative contains several "Environmental Commitments" which are designed to "avoid potential environmental impacts from water transfers." AR 25478. One such environmental commitment is the use of "carriage water," which, according to the FEIS/R, "will be used to maintain water quality in the Delta." Id.

Some background is helpful. The CVP and SWP facilities only have potential capacity to convey transferred water when doing so will not interfere with CVP and SWP operations, which are, in turn, subject to complex regulatory requirements. See, e.g. , CAR 325 (cautioning potential parties to transfer agreements that transfers can only take place when export capacity is available and that project operations are subject to numerous regulatory requirements); CAR 2305-06 (same). The regulatory requirement most relevant here is State Water Resources Control Board ("SWRCB") Decision 1641 ("D-1641").

SWRCB Decision 1641 and [the related] Water Right Order 2001-05 describe the current water right requirements to implement the flow-dependent objectives outlined in the Bay Delta Plan. In SWRCB Decision 1641, the SWRCB assigned responsibilities to Reclamation and [DWR] for meeting these requirements. These responsibilities require that the [CVP] and [SWP] be operated to protect water quality and that DWR and or Reclamation ensure that the flow dependent water quality objectives are met in the Delta.

AR 25539.

More specifically, D-1641 "includes specific outflow requirements throughout the year, specific export restraints in the spring, and export limits based on a percentage of estuary inflow throughout the year." Nat. Res. Def. Council v. Kempthorne , 506 F.Supp.2d 322 , 340 (E.D. Cal. 2007) (citing the administrative record of that case). The water quality objectives in D-1641 "are designed to protect in-Delta agricultural, municipal and industrial, and fishery uses and vary throughout the year and by water year type .... D-1641 will also protect delta smelt by providing transport, habitat and attraction flows." Id. Under the terms of the "Agreement Between the United States of America and the State of California for Coordinated Operation of the Central Valley Project and State Water Project" ("Coordinated Operations Agreement" or "COA"), transfers can only take place when Reclamation and DWR declare that the Delta is in "balanced conditions." AR 25467. "Balanced *1004 water conditions" exist when storage releases plus unregulated flow equal Sacramento in-basin uses, plus exports. AR 15741; Friant Water Auth. v. Jewell , 23 F.Supp.3d 1130 , 1151 (E.D. Cal. 2014) (citing COA, Art. 3(b) ).

The FEIS/R does not explain with any precision how carriage water is calculated. Instead, the mechanism by which carriage water is calculated is outlined in a generic sense as follows:

Carriage water (a portion of the transfer that is not diverted in the Delta and becomes Delta outflow) will be used to maintain water quality in the Delta. Carriage water calculations will also reflect conveyance losses as the water moves from its source to the Delta export pumps and is conveyed from the Delta to buyers. Carriage water is represented as a percent of the transfer that does not reach the buyer, and this percent is calculated during the transfer based on real-time monitoring information in the Delta. Typical carriage water amounts range from 20 to 30 percent for transfers from the Sacramento Valley, and about 10 percent for transfers from the San Joaquin Valley

AR 25478. Put another way, carriage water is defined as "the extra water needed to carry a unit of water across the Delta to CVP/SWP export facilities while maintaining a constant salinity." AR 26419 This means that a certain percentage of any transferred water will be left in the Delta (to serve as outflow) instead of ending up at its transfer destination, with certain other adjustments being made for in-stream losses caused by the cross-Delta conveyance of transfer water. See generally id. However, the FEIS/R acknowledged that "initial estimates for carriage water ... must later be verified and adjusted." AR 26406. In practice, Reclamation and DWR make actual carriage water calculations based upon real-time monitoring information. AR 25478, 27627, 27840. Plaintiffs are correct that no details about the carriage water calculation process are provided.

Several things trouble Plaintiffs about the level of detail provided about the concept of carriage water in the FEIS/R. First, they complain that because the FEIS/R "entirely fails to describe how carriage water will be calculated .... it is not possible to determine the water quality and supply effects of the program." ECF No. 45 at 15 (internal citations omitted). In response to similar comments on the DEIS/R, the Authority added the explanation (quoted above) that "[t]ypical carriage water amounts range from 20 to 30 percent for transfers from the Sacramento Valley and about 10 percent for transfers from the San Joaquin Valley," AR 25478, but without explaining how these estimates were calculated or providing any detail about the carriage water calculation methodology.

Yet, Plaintiffs fail to point to any legal authority that suggests further detail is required. According to the Guidelines, CEQA requires a "general description" of the project's technical characteristics. CEQA Guidelines § 15124. One California appellate court has described this requirement as follows:

"General" means involving only the main features of something rather than details or particulars. (Webster's New Internat. Dict. (3d ed.1986) p. 944.) The "general description" requirement for the technical attributes of a project is consistent with other CEQA mandates to make the EIR a user-friendly document. For example, Guidelines section 15140 states that EIRs must be written in plain language so that decision makers and the public can rapidly understand them. The general description requirement also fosters the principle that EIRs should be prepared early enough *1005 in the planning stages of a project to enable environmental concerns to influence the project's design. A general description of a project element can be provided earlier in the process than a detailed engineering plan and is more amenable to modification to reflect environmental concerns.

The degree of specificity required depends on the type of project. There must be sufficient information to understand the environmental impacts of the proposed project. (Guidelines, § 15146, discussion.) The EIR must achieve a balance between technical accuracy and public understanding. (Guidelines, § 15147, discussion.)

Dry Creek Citizens Coal. v. Cty. of Tulare , 70 Cal. App. 4th 20 , 27-28, 82 Cal.Rptr.2d 398 (1999) (internal case citations omitted). The FEIS/R provides such a general description.

Plaintiffs also argue that the project description is unlawful because the FEIS/R fails to explain how carriage water "will maintain water quality in the Delta." ECF No. 45 at 16. Plaintiffs contend that "the administrative record is clear that water quality in the Delta frequently falls below standards established to protect the beneficial uses of the delta." Id. In support of this assertion, Plaintiffs cite several sources. First, they cite a comment letter submitted by Doug Teeter, of the Butte County Board of Supervisors. See AR 27527. The referenced page provides the text of one aspect of that comment letter, in which Teeter, relying on DWR's own reports, points out that an Index based on Net Delta Outflow ("NDO"), 15 the sum of all inflows and outflows into the Delta used by the CVP and SWP to manage operations, underestimates flow during wet periods and overestimates flow during dry periods. AR 27644. According to Teeter, "the over estimation of [NDO] also results in insufficient carriage water being pulled out of the water transfers to maintain delta water quality and CVP/SWP operational compliance with [other legal requirements]." Id. The FEIS/R responds to Mr. Teeter's comment by indicating that this concern with the measurement tool used to calculate outflow "is something that would apply in both the baseline and the action alternatives" and that "[t]he action alternatives would not affect how the measurement tool works or cause different environmental effects because of the measurement tool." AR 27645. Plaintiffs fail to explain how this response is insufficient or otherwise unreasonable. Put another way, Plaintiffs have failed to explain how any problems they or others may have with the way the NDO works renders the Project's description of carriage water insufficient.

Plaintiffs also cite their own comment letter on the Final EIS/R. ECF No. 45 at 16 (citing AR 30462). In the letter, Plaintiffs argue that the EIS/R "cannot continue to rely on D-1641 standards when these standards are regularly relaxed," and demand that the EIS/R consider how water transfers will impact the environment in years when D-1641 outflow and salinity requirements are relaxed. Id. (citing AR 30462-63); see also AR 27513-14 (similar comment referenced in the EIS/R pointing out that in January 2014, Reclamation and DWR jointly filed a Temporary Urgency Change Petition ("TUCP") to modify D-1641 standards including the Delta Outflow Objective, and objecting that the EIS/R does not evaluate impacts of water transfers on water quality during these extreme conditions). What Plaintiffs appear to be arguing by citing this comment letter is that the project description's reliance on *1006 carriage water is unclear in the context of the regular relaxation of outflow and salinity requirements because it is unclear whether the EIS/R's assertion that carriage water "will maintain water quality" means water quality will be maintained at the then-existing level of quality (i.e., at the level set by the then-present water quality requirements, as modified by any TUCP), or whether that term is being used in some other way, such as to mean the water will be used to achieve additional gains in water quality. See ECF No. 45 at 16 (questioning whether during times when water quality is relaxed "carriage water [will] maintain that impaired condition ... or will it achieve condition by making repairs").

The record belies any confusion Plaintiffs may be attempting to sow. What the EIS/R means by "maintaining water quality in the Delta" is relatively straightforward, at least on a conceptual level. It is a mechanism for maintaining balanced conditions when exports take place. AR 15749 ("Carriage water is defined as the extra water needed to carry a unit of water across the Delta to CVP/SWP export facilities while maintaining a constant salinity."). The DEIS/R explains how water quality relates to the concept of balanced conditions:

The Delta can be in either a balanced or surplus condition. Balanced conditions, as defined in COA, are those periods when DWR and Reclamation agree that releases from upstream reservoirs plus unregulated flow approximately equals the water needed to meet Sacramento Valley in-basin uses plus exports. Conversely, excess or surplus conditions are periods when it is agreed that releases from upstream reservoirs plus unregulated flow exceed Sacramento Valley in-basin uses plus exports. Sacramento Valley in-basin uses include Delta water quality .

AR 15741 (emphasis added). Accordingly, if Delta water quality standards are relaxed, the part of the balanced water equation made up by Sacramento Valley in-basin uses would change, making it possible (at least in theory) to export more water while maintaining balanced conditions. But, even if Delta water quality standards are relaxed, carriage water still serves the purpose of maintaining balanced conditions (i.e., to maintain salinity at whatever point the water quality standards require) whenever transfer water is to be exported from the CVP/SWP export facilities. Carriage water "maintain[s] water quality in the Delta" by preventing shifts in salinity that would be caused by the process of exporting transfer water. While the explanation of this arrangement could have been more direct, the Court does not agree that the FEIS/R is unlawful because it fails to explain how carriage water "will maintain water quality in the Delta." On this ground, Plaintiffs' motion for summary judgment is DENIED and the Authority's cross-motion is GRANTED.

c. Does Description of Carriage Water as an Environmental Commitment Improperly Compress Analyses of Impacts and Mitigation Measures?

Plaintiffs argue that the way in which carriage water is described in the project as an "environmental commitment" improperly compresses the analysis of impacts and mitigation measures into a single issue, in violation of a principle set forth in Lotus v. Department of Transportation , 223 Cal. App. 4th 645 , 655-656, 167 Cal.Rptr.3d 382 (2014). Lotus concerned an EIR issued under CEQA for a highway construction project through old growth redwood forest. Id. at 647-48 , 167 Cal.Rptr.3d 382 . The project called for the removal of six trees; the placement of fill within the structural root zone of 41 others; and excavation within the structural *1007 root zone of still another 58 trees. Id. at 649 , 167 Cal.Rptr.3d 382 . Certain "avoidance minimization and/or mitigation measures" were incorporated into the project to "avoid and minimize impacts as well as to mitigate expected impacts," including, among other things, increased invasive plant removal, ensuring an arborist is present to monitor any ground disturbing construction activities, the use of specified tools/machinery to minimize disturbance, the implementation of certain procedures whenever roots need to be cut, the use of certain types of construction materials to minimize impacts to roots, and the provision of watering to impacted trees for the entire summer following construction. Id. at 650-51 , 167 Cal.Rptr.3d 382 . Ultimately, in part because of the above-described avoidance minimization and/or mitigation measures, the EIR concluded there would be no significant environmental effects caused by the project. Id. at 651 , 167 Cal.Rptr.3d 382 .

The court found the EIR unlawful on several grounds. Primarily, the EIR failed to establish a standard of significance and ignored a State Park Natural Resources Handbook that cautioned that "there should be no construction activities in the Structural Root Zone of a protected tree." Id. at 654-55 , 167 Cal.Rptr.3d 382 . In addition, and of particular importance to this case, the EIR was also defective because it incorporated the proposed mitigation measures into its description of the project before concluding that any potential impacts from the project were less than significant. Id. at 655-56 , 167 Cal.Rptr.3d 382 . The "avoidance, minimization and/or mitigation measures," as they were characterized in the Lotus EIR, were not "part of the project," but, rather, were "mitigation measures designed to reduce or eliminate the damage to the redwoods anticipated from disturbing the structural root zone of the trees by excavation and placement of impermeable materials over the root zone." Id. at 656 , 167 Cal.Rptr.3d 382 . In this way, the EIR improperly "compress[ed] the analysis of impacts and mitigation measures into a single issue," thereby "disregard[ing] the requirements of CEQA." Id. Lotus explains that it this type of failure is dangerous because, among other things, the lack of analysis and findings about the extent of impacts makes it impossible to determine if the mitigation measures are sufficient:

The EIR fails to indicate which or even how many protected redwoods will be impacted beyond the tolerances specified in the handbook and, by failing to indicate any significant impacts, fails to make the necessary evaluation and findings concerning the mitigation measures that are proposed. Absent a determination regarding the significance of the impacts to the root systems of the old growth redwood trees, it is impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered. Should Caltrans determine that a specific tree or group of trees will be significantly impacted by proposed roadwork, that finding would trigger the need to consider a range of specifically targeted mitigation measures, including analysis of whether the project itself could be modified to lessen the impact.

Id.

In the present case, Plaintiffs argue that the FEIS/R makes a similar error by utilizing carriage water as a "pseudo-project component" to avoid full analysis of potentially significant water quality impacts. ECF No. 45 at 16-17. Plaintiffs characterize carriage water as "mitigation for the Project's water quality impacts," but complain that incorporating carriage water into the project description prevents a meaningful analysis of the Project's potentially significant impacts and the effectiveness *1008 of any mitigation measures proposed to address those impacts. Id. at 17. As the Lotus court explained, "[t]he distinction between elements of a project and measures designed to mitigate impacts of the project may not always be clear." 223 Cal. App. 4th at 656 n.8, 167 Cal.Rptr.3d 382 . Lotus uses as an example the use of "cement treated permeable base" employed to "minimize the thickness of the structural section [of roadway], provide greater porosity, minimize compaction of roots, and minimize thermal exposure to roots from Hot Mix Asphalt paving," which "might well be considered to define the project itself," explaining that it "would be nonsensical to analyze the impact of using some other composition of paving and then to consider use of this particular composition as a mitigation measure." Id. In contrast, "the same cannot be said of most of the 'avoidance, minimization and/or mitigation measures' [employed by the Lotus EIR], such as the restorative planting and replanting, invasive plant removal, and use of an arborist and of specialized equipment. These are plainly mitigation measures and not part of the project itself." Id.

Plaintiffs argue that "[c]arriage water serves only to mitigate or avoid the project's otherwise adverse water quality and supply impacts, serving no integral function of a water transfer." POR at 5. Carriage water does have the purpose of mitigation. It is defined as "a portion of the transfer that is not diverted in the Delta and becomes Delta outflow" and is used to maintain balanced Delta conditions to avoid salinity intrusion. AR 25478. However, the existence of "balanced conditions" is a pre-requisite for any transfers to occur under the project. In other words, the existence of balanced conditions is part of "the project itself," Lotus , 223 Cal. App. 4th at 656 n.8, 167 Cal.Rptr.3d 382 . It is logical therefore to consider the deduction of carriage water to be part of the project as well. It would be "nonsensical" to eliminate carriage water from the description of the Project, as this would prevent satisfaction of one of the project's pre-requisites. 16

Accordingly, Plaintiffs' motion for summary judgment on this issue is DENIED; the Authority's cross-motion is GRANTED. Whether or not the FEIS/R adequately evaluates Project impacts and proposes sufficient mitigation measures is a separate question.

3. Description of Project's Environmental Setting

a. CEQA Challenges to Description of Project's Environmental Setting

Plaintiffs next make a series of arguments under the heading "the EIS/R failed to legally describe the project's environmental setting." ECF No. 45 17-22. 17 "[A]n EIR must delineate environmental *1009 conditions prevailing absent the project, defining a 'baseline' against which predicted effects can be described and quantified." Neighbors for Smart Rail v. Exposition Metro Line Const. Auth. , 57 Cal. 4th 439 , 447, 160 Cal.Rptr.3d 1 , 304 P.3d 499 (2013) (internal citation omitted). "[T]he baseline for an agency's primary environmental analysis under CEQA must ordinarily be the actually existing physical conditions rather than hypothetical conditions that could have existed under applicable permits or regulations." Id. at 448 , 160 Cal.Rptr.3d 1 , 304 P.3d 499 (internal citation omitted).

Plaintiffs assert that the DEIS/R omitted numerous "crucial existing environmental features." ECF No. 45 at 17. According to Plaintiffs, after circulating the Draft for public comment, the FEIS/R "recogniz[ed] some, but not all, of these errors, ... included significant revisions to its descriptions of the existing environmental conditions, but failed to recirculate this significant new information for public review and comment." Id. The Court interprets Plaintiffs' argument as having two parts. First, Plaintiffs appear to be asserting that, despite the significant revisions, the FEIS/R nonetheless still failed to describe lawfully the Project's environmental setting. Second, Plaintiffs argue that the Authority should have re-circulated the FEIS/R for public comment. Plaintiffs make separate sets of arguments in connection with the FEIS/R's description of (a) existing groundwater levels 18 and (b) existing groundwater contamination.

(1) Description of the Existing Groundwater Levels

It is somewhat difficult to tell whether Plaintiffs intend to challenge the content of the FEIS/R's description of the Project's environmental setting in connection with groundwater levels. Plaintiffs critique at length the content of the DEIS/R's discussion of groundwater elevations and other conditions related to the volume of accessible groundwater, and then concede that the FEIS/R makes "substantial revisions" thereto. ECF No. 45 at 20. Plaintiffs also take care to point out that after additional information was added to the DEIS/R, the document concluded that "[c]omparisons of spring groundwater levels in the last decade (Spring 2004 to Spring 2014) indicate steep declines in groundwater levels up to 40 feet." AR 25627. Plaintiffs do indicate that "the picture would have been bleaker still had the EIS/R disclosed groundwater conditions in the fall, rather than disclosing only spring levels immediately following winter rains," ECF No. 45 at 20 (citing AR 30459), and assert that the FEIS/R omitted any evaluation of deep well data, id. (citing AR 27894). But, Plaintiffs do not explain how these omissions of fall and deep well data render the FEIS/R's description of existing environmental conditions legally inadequate. Rather, they return to the argument that the " new data added to the FEIS/R , showing 10 years of declining groundwater levels in the Sacramento Valley (and omitting any deep well data, AR

*1010 27894), resulting in a slew of wells running dry in 2014, show a very different existing environmental condition than the resilient and ever-recharging groundwater levels the [F]EIS/R describes." ECF No. 45 at 20. It is impossible to tell whether Plaintiffs, in pointing to the "resilient and ever-recharging groundwater levels the EIS/R describes," are referring to the DEIS/R or the FEIS/R. Moreover, they do not provide a citation to the FEIS/R that presents picture of "resilient and ever-recharging groundwater levels." 19 In sum, Plaintiffs fail to point out with any specificity how or why the description of the groundwater levels in the FEIS/R is inadequate.

Similarly, Plaintiffs argue, generically, that the "steep decline" in groundwater levels significantly calls into question the effectiveness of mitigation measure GW-1, but fail (at least in this section of their brief) to explain why this might be the case. ECF No. 45 at 20. Plaintiffs also argue that the FEIS/R fails to consider a concurrent decline in surface water connected to the groundwater basins in question. ECF No. 45 at 21 (citing 27813 (showing FEIS/R's failure to address comment letter pointing to data that tends to show "stream accretion generally decreases at approximately the same rate as groundwater pumping increases") ). But, again, Plaintiffs fail to elaborate upon this point in any way. It is not the Court's obligation to flesh out a parties' argument. The Court is left with no choice but to conclude that Plaintiffs have not met their burden to establish that the FEIS/R fails to adequately describe existing environmental conditions related to groundwater levels.

Plaintiffs' argument morphs into a somewhat different one in their reply, arguing, for example, that "in continuing to rely on its modeled baseline for its impact analysis, the [F]EIS/R ignores the dramatic depletion of groundwater levels in parts of Glenn, Colusa and Tehama County within the Sacramento Valley; 135 wells in the Sacramento Valley groundwater basin were reported to have gone dry in 2014 alone." Doc 51 at 7 (citing AR 27426). The cited page of the AR (27426) is part of one of the Common Responses to comments contained in Appendix J of the FEIS/R. In Common Response 4, the FEIS/R presents the data in question indicating that 135 wells went dry. Plaintiffs' separate argument that these new additions required recirculation is discussed below. To the extent Plaintiffs are challenging what the FEIS/R did with this information in its analysis, that issue is misplaced in the context of a challenge to the way the project describes the environmental setting. 20

(2) Is Recirculation Required in Light of Changes Made to the DEIS/R Pertaining to Information about Groundwater Levels?

The FEIS/R describes the "affected environment/existing conditions" to include *1011 "Redding Area Groundwater Basin; Sacramento Valley Groundwater Basin; San Joaquin Valley Groundwater Basin; Santa Clara Valley Groundwater Basin; and Gilroy-Hollister Valley Groundwater Basin." AR 25600. The majority of groundwater substitution pumping proposed by the Project would occur in the Sacramento Valley Groundwater Basin. AR 25463-66, AR 25601. Commenters raised the concern that the DEIS/R had failed to characterize accurately and sufficiently the groundwater resources in these basins. For example, U.S. EPA's comments succinctly articulate the asserted failure of the DEIS/R:

The DEIS is internally inconsistent in defining and treating baseline/existing groundwater elevations. The characterization of existing groundwater conditions uses data sets that conclude at dates ranging from 1995 to 2013, and none include data from the 2013-2014 critical drought year. Where older, outdated data are used, it is possible that recent trends in groundwater elevation or land subsidence are not represented in the analysis. The current drought is perhaps the most severe the state has ever experienced and would be the relevant baseline for additional impact from the proposed action, slated to commence in 2015. According to the [DWR's] November 2014 Drought Update, over 50 percent of monitored wells in the Central and Sacramento Valleys have experienced groundwater level decreases of 2.5 feet or more from spring of 2013 to spring of 2014, with over 20% experiencing decreases of more than 10 feet. For the period from spring 2010 to spring 2014, nearly 30% of monitored wells have experienced declines in excess of 10 feet. While the most severe declines occur in the San Joaquin basin, precipitous declines are none-the-less prevalent across a majority of the sellers' service area. Due to these recent declines, some of the monitored wells in the sellers' service area may have reached historic low levels. Consequently, we are concerned that the extent of, or potential for, land subsidence may be greater than is reflected in the DEIS.

AR 27462; see also AR 27890-27891 (similar comment submitted by Plaintiffs).

It is undisputed that the FEIS/R made revisions to the description of groundwater levels. See AR 25625-25666 (adding dozens of maps and charts to describe existing conditions); see also AR 27813 ("Section 3.3.1.3, Affected Environment has been revised to clarify the impacts of current drought conditions to the groundwater resources within the area of analysis."). For example, the FEIS/R states:

Change in groundwater elevation figures for (a) Spring 2013 to Spring 2014, (b) Spring 2004 to Spring 2014, and (c) Spring 2010 to Spring 2014 indicate groundwater levels have decreased within the Sacramento Valley. As shown in Figure J-1 below, water year (WY) 2014 was one of the driest years on record since 1977 and it was preceded by a dry and a critical year. Spring 2014 groundwater levels have changed between +5 and -20 feet within the Sacramento Valley in comparison to Spring 2013. Comparisons of spring groundwater levels in the last decade (Spring 2004 to Spring 2014) indicate groundwater levels have declined as much as 40 feet in parts of Glenn, Colusa and Tehama County within the Sacramento Valley.

AR 27424. The FEIS/R characterizes this data as demonstrating a "steep decline." AR 25672. Likewise, the FEIS/R acknowledged that surface water flows declined alongside groundwater levels. AR 27813 ("[S]tream accretion generally decreases at approximately the same rate as groundwater pumping increases.").

Plaintiffs argue that all of the above changes warranted recirculation of *1012 the EIR. If the lead agency adds "significant new information" to an EIR subsequent to the close of the public comment period but prior to certification of the final EIR, CEQA requires that the lead agency provide a new public comment period. Cal. Pub. Res. Code § 21092.1 . The CEQA Guidelines describe "significant new information" as including "a disclosure showing that":

(1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.

(2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance.

(3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project's proponents decline to adopt it.

(4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.

CEQA Guidelines § 15088.5(a)(emphasis added). In contrast, "[r]ecirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR." Id. at § 15088.5(b). "[R]ecirculation is not required simply because new information is added." S. Cty. Citizens for Smart Growth v. Cty. of Nevada , 221 Cal. App. 4th 316 , 328, 164 Cal.Rptr.3d 68 (2013). " '[T]he final EIR will almost always contain information not included in the draft EIR' given the CEQA statutory requirements of circulation of the draft EIR, public comment, and response to these comments prior to certification of the final EIR." Id. ( quoting Laurel Heights Improvement Ass'n. v. Regents of University of Cal. , 6 Cal.4th 1112 , 1124, 26 Cal.Rptr.2d 231 , 864 P.2d 502 (1993) (" Laurel Heights II ") ). "Recirculation was intended to be an exception, rather than the general rule." Laurel Heights II , 6 Cal. 4th at 1132 , 26 Cal.Rptr.2d 231 , 864 P.2d 502 . "Courts must defer to an agency's explicit or implicit decision not to recirculate a draft EIR so long as it is supported by substantial evidence." San Francisco Baykeeper, Inc. v. California State Lands Comm'n , 242 Cal. App. 4th 202 , 224, 194 Cal.Rptr.3d 880 (2015) (internal citation and quotation omitted). "[A]n agency's determination not to recirculate is given substantial deference and is presumed to be correct." Id. (internal citations and quotations omitted). Thus, the appellant bears the burden of proving substantial evidence does not support the agency's decision not to recirculate an EIR. Id.

In its resolution certifying the FEIS/R under CEQA, the Authority made an affirmative finding that the new information added to the FEIS/R "adds detail about existing groundwater conditions, but does not change the conclusions drawn regarding impacts of water transfers." CAR 5-6; see also CAR 22-27 (CEQA findings regarding project that summarize potential impacts, including impacts from groundwater substitution, which "could decrease flows in surface water bodies following a transfer while groundwater basins recharge," and finding that proposed mitigation measure WS-1 would reduce this impact to a "less than significant" level).

The Authority emphasizes that the FEIS/R "is intended to assess environmental conditions resulting from implementation of the range of potential transfer activities under the Proposed Action for a 10-year period." AR 27429. The FEIS/R therefore focused on "whether there exists within the period of analysis *1013 any 10-year period that is representative of a reasonable worst-case condition for Sacramento Valley hydrology." Id. The average Sacramento Valley combined annual runoff is approximately 17.8 million acre-feet ("MAF") and the average for the ten-year period from 2004-2014 was only 15.7 MAF. AR 27428. Yet, the period from 1985-1994 was even drier (12.7 MAF), with the driest ten-year period on record being 1928-1937 (12.3 MAF). Id. The FEIS/R summarizes the situation as follows:

Though the Sacramento Valley and other parts of California are currently noticing declining groundwater level trends, past groundwater trends are indicative of groundwater levels declining moderately during extended droughts and recovering to pre-drought levels after subsequent wet periods.

AR 27424.

Plaintiffs argue that the new data added to the FEIS/R, showed persistently declining groundwater levels in the Sacramento Valley, resulting in a "slew of wells running completely dry at the time the [F]EIS/R was published." ECF No. 45 at 23 (emphasis added). In support of this assertion, Plaintiffs cite a large section of the FEIS/R, see id. (citing AR 25625-25666), containing, among other things, graphs (or "hydrographs") depicting groundwater elevations of "select monitoring wells across the Sacramento Valley." AR 25626. Plaintiffs make no effort to explain their interpretation of this information in any detail. The Court's own review of the material, along with additional supporting graphs in Appendix L, see AR 28256-28344, reveals a more nuanced situation, consistent with the FEIS/R's statements. For example, the FEIS/R describes the data from shallow wells as showing "show long term trends that are either increasing stable or decreasing depending on the well. Several wells also show the recovery of groundwater levels following drought periods." AR 25626. With respect to intermediate wells, the FEIS/R presents a mixed picture:

The hydrographs ... show similar long term trends as the shallow wells (i.e., increasing, stable, or decreasing). Similar to the shallow wells several intermediate wells show recovery of groundwater levels in wetter periods following drought conditions. A number of the wells ... show recent groundwater levels at or below historic low levels. However, some of these wells also show levels above historic low levels.

Id. Finally, with respect to deep wells, "a number ... show long term declining water level trends." AR 25626. But, the FEIS/R explains that "most of the [deep] wells shown in [the relevant] figure have a shorter measurement record." Id. Moreover, "the recovery of water levels during drought periods can be seen in the hydrograph" for at least one deep water well. AR 25727. To succeed on their claim that re-circulation is required, Plaintiffs must demonstrate that substantial evidence does not support the Authority's implied conclusion that these new hydrographs do not present evidence of " new significant environmental impact would result from the project," or a " substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance," either of which would trigger the requirement for re-circulation. CEQA Guidelines § 15088.5(a). 21 Taken at face value, the FEIS/R's evaluation of the new information suggests that the new data is equivocal on any long-term trends *1014 in groundwater levels. Plaintiffs make no effort to demonstrate with any specificity why the FEIS/R's characterization of the new hydrographs is inaccurate.

Plaintiffs do point to some generic references that suggest, overall, groundwater levels in the Sacramento Valley are decreasing because drawdown rates are exceeding recovery rates. See AR 27894 (letter in which Plaintiffs comment on the DEIS/R, pointing out, among other things: "Although regional measured groundwater levels are purported to 'recover' during the winter months (Technical Memorandum 3), data from Spangler (2002) indicate that recovery levels are somewhat less than levels of drawdown, suggesting that, in general, water levels are declining"); AR 29306 (groundwater model manual stating: "Some locales show the early signs of persistent declines in groundwater level, including northern Sacramento County, areas near Chico, and on the far west side of the Valley in Glenn County, where water demands are met primarily, and in some locales exclusively, by groundwater"). However, these general references do not overcome the presumption of correctness that applies to the Authority's determination, based on evaluation of specific data, not to re-circulate. See Baykeeper , 242 Cal. App. 4th at 224 , 194 Cal.Rptr.3d 880 . Plaintiffs' motion for summary judgment that the new information added to the FEIS/R regarding groundwater levels required re-circulation is DENIED; the Authority's cross-motion is GRANTED.

(3) Description of Existing Groundwater Contamination

Plaintiffs next argue that the FEIS/R failed to describe accurately existing groundwater contamination. For example, the DEIS/R concluded that any additional pumping of groundwater resulting from the project "is not expected to be in locations or at rates that would cause substantial long-term changes in groundwater levels that would cause changes to groundwater quality." AR 15069; AR 25704 (same language repeated in FEIS/R); see also AR 25754 ("Inducing the movement or migration of reduced quality water into previously unaffected areas through groundwater pumping is not likely to be a concern unless groundwater levels and or flow patterns are substantially altered for a long period of time. Groundwater extraction pumping under the Proposed Action would be limited to short-term withdrawals during the irrigation season. Consequently effects from the migration of reduced groundwater quality would be less than significant."). Plaintiffs argue that the DEIS/R's conclusion could not be supported without disclosing information about the location of contaminated groundwater and their proximity and interactivity with proposed groundwater pumping. See ECF No. 45 at 21. But, again, they admit that the FEIS/R added significant new information describing these contaminated sites to the FEIS/R, see AR 25673-25674, including the following paragraph:

Figure 3.3-16 below shows the active and open "clean-up" sites from SWRCB's GeoTracker database. The Sacramento Valley has 481 active clean-up program sites, 234 leaking underground tanks (UST) sites, 54 Military sites (includes military privatized UST sites), and one land disposal site as of December 29, 2014 (SWRCB 2014). These sites are in various stages of open investigation which includes site assessment, remediation, and/or monitoring. Most of the clean-up sites shown in Figure 3.3-16 are clustered around urban areas.

AR 25673.

Plaintiffs again argue that this new information is "significant new information" requiring recirculation under CEQA because *1015 "the added mapping and information shows contaminated groundwater sites that were not previously identified." ECF No. 45 at 22. Plaintiffs argue that this constitutes significant new information because "it reveals for the first time what the [DEIS/R] ignored, i.e. that some sources of groundwater might actually be contaminated." Id. This is not accurate. The DEIS/R does address the issue within Section 3.2 (Water Quality) as follows:

Groundwater substitution transfers could introduce contaminants that could enter surface waters from irrigation return flows . Groundwater substitution transfers would use groundwater for irrigation instead of surface water. The amount of groundwater substituted for surface water under the Proposed Action would be relatively small compared to the amount of surface water used to irrigate agricultural fields in the Seller Service Area. Groundwater would mix with surface water in agricultural drainages prior to irrigation return flow reaching the rivers Constituents of concern that may be present in the groundwater could enter the surface water as a result of mixing with irrigation return flows. Any constituents of concern, however, would be greatly diluted when mixed with the existing surface waters applied because a much higher volume of surface water is used for irrigation purposes in the Seller Service Area. Additionally, groundwater quality in the area is generally good and sufficient for municipal agricultural domestic and industrial uses. Section 3.3 provides additional discussion of groundwater quality. Groundwater substitution transfers would result in a less than significant impact on water quality.

AR 14970. Both the DEIS/R and the FEIS/R emphasize that "groundwater quality in the area is generally good and sufficient for municipal agricultural domestic and industrial uses." Id. ; AR 25559.

As mentioned, CEQA requires that the lead agency provide a new public comment period if "significant new information" is added to an EIR subsequent to the close of the public comment period but prior to certification of the final EIR. Cal. Pub. Res. Code § 21092.1 . CEQA Guidelines section 15088.5(a) explains that "significant new information" includes information tending to show: (1) "[a] new significant environmental impact would result from the project ..."; or (2) [a] substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance." (Emphasis added.) Here, Plaintiffs have failed to demonstrate that the new information at issue, including the data showing the location of active contaminant clean-up sites, meets either re-circulation trigger criterion. Plaintiffs do not argue that the FEIS/R was wrong to conclude that "groundwater quality in the area is generally good," nor that the logic underlying the finding of no significance is flawed. They fail to demonstrate that the new information highlights a "new significant environmental impact" or "a substantial increase in the severity of an environmental impact." 22 Re-circulation is therefore not required. Accordingly, Plaintiffs' motion for summary judgment that the new information added to the *1016 FEIS/R regarding groundwater quality required re-circulation is DENIED; the Authority's cross-motion is GRANTED.

Plaintiffs also argue that the information pertaining to contamination in the FEIS/R is inadequate because "it does not show the elevation or proximity of any contaminated site to any project groundwater well." ECF No. 45 at 22. As Federal Defendants point out, the FEIS/R contains a map, which shows the locations of the clean-up sites and of groundwater substitution pumping wells. AR 25674. As to whether the groundwater elevation of the contaminated sites is material, the same logic that undercut Plaintiffs' argument about re-circulation after additions were made to the DEIS/R undercuts their argument about inadequacy of the groundwater quality description in the FEIS/R. Plaintiffs fail to rebut the assertion in the DEIS/R and FEIS/R that groundwater quality is generally good and the related reasoning that led the authors to conclude groundwater contamination issues would be less than significant. The level of detail required in a project description need not go "beyond that needed for evaluation and review of the environmental impact." CEQA Guidelines § 15124. Plaintiffs' motion for summary judgment on this issue is DENIED. 23

b. NEPA Challenges to Description of Groundwater Baseline

Plaintiffs argue that the FEIS/R violates NEPA because it impermissibly relies upon monitoring set forth in Mitigation Measure GW-1 in lieu of describing the environmental baseline. ECF No. 45 at 24-25. This, they contend, violates NEPA, which prohibits an EIS to substitute a mitigation measure as a proxy for measuring the environmental baseline. Id. (discussing N. Plains Res. Council v. Surface Transp. Bd. , 668 F.3d 1067 , 1085 (9th Cir. 2011) (rejecting EIR where agency failed to gather information about baseline environmental conditions) ). This requirement stems from the uncontroversial proposition that it would be "simply impossible" to evaluate the effects of a project if an agency fails to gather information on the project's environmental conditions. LaFlamme v. FERC , 852 F.2d 389 , 400 (9th Cir. 1988). Plaintiffs argue that the task of describing baseline groundwater conditions is "left completely to a future date." ECF No. 45 at 25. Here, the record does not warrant the finding Plaintiffs advocate. As discussed above, the FEIS/R, including supporting graphs in Appendix L, see AR 28256-28344, describes existing groundwater conditions. Accordingly, Plaintiffs' motion for summary judgment on these grounds is DENIED; Federal Defendants' cross-motion is GRANTED.

Relatedly, Plaintiffs argue elsewhere that the FEIS/R unlawfully defers site-specific review to future mitigation measures. ECF No. 51 at 9-10. Plaintiffs correctly point to authorities applying NEPA that prohibit a federal agency from avoiding site-specific evaluation of impacts, but rely entirely on portions of the FEIS/R that respond to a comment letter from EPA to argue that the FEIS/R omits site-specific analysis of impacts to groundwater. See id. at 9 (citing AR 27454 and AR

*1017 27471). While these record citations indicate that EPA raised this issue, they do not provide record support for the proposition itself, nor address the FEIS/R's response. The Court simply cannot make heads or tails of this argument as presented. Therefore, as to this issue Plaintiffs' motion for summary judgment on these grounds is DENIED; Federal Defendants' cross-motion is GRANTED.

4. Assessment of Significant Environmental Impacts

Next, Plaintiffs bring five sets of challenges concerning the FEIS/R's assessment of environmental impacts. The introductory paragraph for this section only cites CEQA authorities, suggesting all sub-arguments are CEQA challenges only. ECF No. 45 at 22. But, the second and third sub-arguments within this larger section also mention NEPA. See id. at 24-28. Other than those sections in which NEPA is specifically mentioned, or unless otherwise noted, the Court assumes only CEQA challenges are raised.

Under CEQA, "[a]n EIR shall identify and focus on the significant environmental effects of the proposed project." CEQA Guidelines § 15126.2(a). The EIR should examine "changes in the existing physical conditions in the affected area." Id. "Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects." Id.

When reviewing whether an agency's impact analysis complies with NEPA, a reviewing court must ask whether the agency "adequately considered a project's potential impacts and whether the consideration given amounted to a 'hard look' at the environmental effects." N. Alaska Envtl. Ctr. v. Kempthorne , 457 F.3d 969 , 975 (9th Cir. 2006) ( quoting Idaho Sporting Congress, Inc. v. Rittenhouse , 305 F.3d 957 , 963 (9th Cir. 2002) ). A "hard look" includes "considering all foreseeable direct and indirect impacts." Idaho Sporting Congress , 305 F.3d at 973 . "Furthermore, a 'hard look' should involve a discussion of adverse impacts that does not improperly minimize negative side effects." N. Alaska Envtl. Ctr. , 457 F.3d at 975 (quoting Native Ecosystems Council v. U.S. Forest Service , 428 F.3d 1233 , 1241 (9th Cir. 2005) ). Under NEPA, an agency's actions are only arbitrary and capricious if it "has relied on factors that Congress has not intended it to consider, has entirely failed to consider an important aspect of the problem, or has offered an explanation for that decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Pub. Citizen v. Nuclear Regulatory Com'n , 573 F.3d 916 , 923 (9th Cir. 2009).

a. Groundwater Impact Modeling Baseline (CEQA)

Plaintiffs argue that the FEIS/R is not in compliance with CEQA because the model it uses to evaluate its groundwater impacts inaccurately depicts baseline conditions.

(1) Hydrologic Baseline

Plaintiffs first argue that the model defines baseline conditions using an outdated baseline period from 1970-2003. ECF No 45. at 23. Plaintiffs generally assert that "reliance on data from this period fails to accurately reflect existing and foreseeable growth in future water demand, fails to account for ongoing increases in global temperatures, and fails to account for the long-term trend of groundwater drawdown in the state." Id.

The determination of the baseline is the first step in the impact review process.

*1018 Save our Peninsula Comm. v. Monterey Cty. Bd. of Supervisors , 87 Cal. App. 4th 99 , 125, 104 Cal.Rptr.2d 326 (2001). "Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods. In some cases, conditions closer to the date the project is approved are more relevant to a determination whether the project's impacts will be significant." Id. "[A]n agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence." Baykeeper , 242 Cal. App. 4th at 218 , 194 Cal.Rptr.3d 880 (internal citation and quotation omitted). Under CEQA, a court must "apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR's analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions." City of Long Beach v. Los Angeles Unified Sch. Dist. , 176 Cal. App. 4th 889 , 898, 98 Cal.Rptr.3d 137 (2009). Such a challenge therefore must be rejected if substantial evidence supports the agency's approach and the EIR is not clearly inadequate or unsupported. Id.

Some background is helpful to understanding the selection of 1970-2003 as the modeling period for the FEIS/R. The FEIS/R used three models to evaluate the environmental impacts of the project on groundwater resources: the Sacramento Valley Finite Element Groundwater Flow Model ("SACFEM2013"), CalSim II, 24 and the Transfer Operations Model ("TOM"). AR 27428. The full simulation period for which SACFEM2013 was capable at the time the FEIS/R issued was water year ("WY") 1970 through 2010; the full simulation period for CalSim II was WY 1922 through 2003. Id. TOM was developed for, and analysis was conducted on, the 34-year period of WY 1970-2003 because that was the period common to both the SACFEM2013 and CalSim II models. Id.

Plaintiffs assert that the FEIS/R's reliance on data from 1970-2003 for its modeling fails to accurately reflect existing conditions during more recent drought years. ECF No. 45 at 23. 25 The FEIS/R explains that the model's reliance on this data period is nonetheless appropriate, despite the fact that the years since 2003 have been drier than average, because the model inputs included several ten-year periods that were even drier than the most recent period excluded from the model's data set. See AR 27428.

*1019 The long-term average annual runoff from [the Sacramento, Feather, Yuba, and American Rivers] is approximately 17.8 [million acre-feet ("MAF") ]. The average annual runoff for the period 2004 through 2014 is 15.7 MAF, while the average annual runoff for the period of analysis is 18.6 MAF. While it is true that the period from 2004 through 2014 has been drier than both the long-term average and the average for the period of analysis, this does not invalidate the analysis supporting the discussions in the environmental document. Hydrology in the period of analysis adequately represents the historical range and the variability that has occurred in the Sacramento Valley, and includes two multi-year droughts: 1976-77 and 1987-92. The drought of 1976-77 was more severe than any single year or 2-year period from 2004 through 2014, and the 1987-92 drought was more prolonged than any recent 6-year period.

Additionally, the EIS/EIR is intended to assess environmental conditions resulting from implementation of the range of potential transfer activities under the Proposed Action for a 10-year period. A key consideration, therefore, is whether there exists within the period of analysis any 10-year period that is representative of a reasonable worst-case condition for Sacramento Valley hydrology. Within the period of analysis, there are several 10-year periods that are considerably drier than the 2004 through 2014 period. For example, the average annual runoff for the 10-year period 1985 through 1994 is 12.7 MAF. This is comparable to the minimum average annual runoff, 12.3 MAF in 1928 through 1937, for any 10-year period in the available record. The analysis includes a period similar to the driest 10 years on record, and drier than the period from 2004 through 2014.

AR 27428-29. Plaintiffs fail to rebut this reasonable explanation that is supported by substantial evidence in the form of the cited historical runoff data. See Baykeeper , 242 Cal. App. 4th at 219 , 194 Cal.Rptr.3d 880 (approving agency's decision that running five year average better reflected baseline than most recent year because most recent year's data was skewed by unique economic conditions, and finding challenger's argument that the more recent years were a more appropriate baseline to be an insufficient "disagreement with the Final EIR's analysis"); see also Bakersfield Citizens v. City of Bakersfield , 124 Cal. App. 4th 1184 , 1198, 22 Cal.Rptr.3d 203 (2004) ("Substantial evidence is defined as enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached."). Plaintiffs' motion for summary judgment that the FEIS/R's modeling approach inaccurately defines the environmental baseline related to groundwater levels is DENIED; the Authority's cross-motion is GRANTED.

(2) Consistency of Baseline

Plaintiffs next appear to argue that the FEIS/R is unlawful because it provides an internally inconsistent 26 picture of the environmental baseline. ECF No. 45 at 23. 27 As a specific example of *1020 internal inconsistency, Plaintiffs compare a portion of the FEIS/R that asserts "groundwater levels declin[e] moderately during extended droughts and recover[ ] to pre-drought levels after subsequent wet periods," id. (quoting AR 27424), to a section from the FEIS/R containing hydrographs of various monitoring wells in the Sacramento Valley. Id. (quoting AR 25625-666). As discussed above, although Plaintiffs claim the hydrographs show "10 years of persistently declining groundwater levels in the Sacramento Valley," the graphs are more equivocal. Id. Therefore, the Court does not find the FEIS/R to be internally inconsistent on this issue. Plaintiffs' motion for summary judgment on this issue is DENIED; the Authority's cross-motion is GRANTED.

(3) Water Supply Demand Baseline

Plaintiffs next argue that the FEIS/R ignores a consistent growth in water supply demand. ECF No. 45 at 23. The CalSim II and SACFEM2013 models are designed to approximate a fixed level of development, with CalSim II using a 2005 level of development and SACFEM2013 using a 2010 level of development. AR 27430. "This means that population, land use, and agricultural demands used in the models are representative of demands that existed in those years." Id. "These demands are then used with historical hydrology inputs, primarily precipitation, reservoir inflows, and unregulated flows, in model simulations." Id. With respect to those aspects of the modeling in the FEIS/R linked to the SACFEM2013 model, 28 the FEIS/R concludes that, even though there have been changes in demand since 2010, the "range of demands simulated in SACFEM2013 is representative of existing conditions in the Sacramento Valley." AR 27431; see also AR 27430 (indicating that "[d]emands in SACFEM2013 are based on land use data and surveys taken as recently as 2010 ( see Appendix M"). 29

The question is whether the record contains substantial information to support this conclusion. See *1021 Bakersfield Citizens , 124 Cal. App. 4th at 1198 , 22 Cal.Rptr.3d 203 . Plaintiffs argue that substantial evidence does not support the use of this approach to setting a baseline, in light of the "backdrop of decades of persistent growth in groundwater demands." ECF No. 45 at 24. Plaintiffs correctly point out that data in the FEIS/R indicates groundwater pumping grew consistently from 1961 (250,000 AF) to 2003 (800,000 AF). AR 25625; see also AR 15024 (same information in DEIS/R). In light of this trend, Plaintiffs argue that there is no support for the FEIS/R's conclusion that "the range of demands simulated in SACFEM2013 is representative of existing conditions in the Sacramento Valley." ECF No. 45 at 24. Plaintiffs' argument suggests, therefore, that the modeling parameters must be adjusted to account for the overall upward trend in groundwater demand resulting in greater demand between 2010 (the last year of inputted demand information) and 2015 (the planned starting year of the Project ( see AR 25365) ). See ECF No. 58 at 6 (citing 27430) (the Authority conceding that the FEIS/R itself admits that "since 2010, groundwater demand has likely increased due to additional irrigated lands (particularly in permanent crops) and population increases").

"An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective." CEQA Guidelines § 15125(a). "This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant." Id. Preparation of the FEIS/R began in early 2011. ECF No. 48 at 15 n. 10.

However, "[i]n appropriate circumstances an existing conditions analysis may take account of environmental conditions that will exist when the project begins operations; the agency is not strictly limited to those prevailing during the period of EIR preparation." Neighbors for Smart Rail v. Exposition Metro Line Const. Auth. , 57 Cal. 4th 439 , 452, 160 Cal.Rptr.3d 1 , 304 P.3d 499 (2013). "An agency may, where appropriate, adjust its existing conditions baseline to account for a major change in environmental conditions that is expected to occur before project implementation." Id.

In so adjusting its existing conditions baseline, an agency exercises its discretion on how best to define such a baseline under the circumstance of rapidly changing environmental conditions. As we explained in our earlier decision, CEQA imposes no uniform, inflexible rule for determination of the existing conditions baseline, instead leaving to a sound exercise of agency discretion the exact method of measuring the existing environmental conditions upon which the project will operate.... For example, in an EIR for a new office building, the analysis of impacts on sunlight and views in the surrounding neighborhood might reasonably take account of a larger tower already under construction on an adjacent site at the time of EIR preparation.

Id. at 452-53 , 160 Cal.Rptr.3d 1 , 304 P.3d 499 . An agency "may forgo analysis of a project's impacts on existing environmental conditions if such an analysis would be uninformative or misleading to decision makers and the public." Id. at 453 , 160 Cal.Rptr.3d 1 , 304 P.3d 499 . Nonetheless, departure from the norm (i.e., using existing conditions as they existed at the time environmental review commenced) is disfavored because "existing environmental conditions have the advantage that they can generally be directly measured and need not be projected through a predictive *1022 model. However sophisticated and well-designed a model is, its product carries the inherent uncertainty of every long-term prediction, uncertainty that tends to increase with the period of projection." Id.

Here, Plaintiffs do not appear to be suggesting that the FEIS/R should make uncertain predictions about water supply demand well into the future. Rather, they appear to be making the narrow request that demand information incorporated into the SACFEM2013 model be updated to include the most up to date information possible. See ECF No. 45 at 23-24. Nonetheless, as the Authority explains in its supplemental briefing, the 2010 land use data incorporated into SACFEM2013 was the most recent land use data available in 2011, the time of the initiation of this environmental review. See ECF No. 68 at 8 n.19 ("Demands in SACREM2013 are based on the most recent land use data and surveys available in 2011."). Moreover, the land use data was combined in SACFEM2013 "with the historical precipitation record to develop demands that vary in each year of the simulation, with higher demands for groundwater in drier years." Id. The Authority contends that the historical data provides a sufficient variety of hydrological conditions to realistically depict the baseline of existing groundwater conditions, ECF No. 68 at 9 (citing AR 25599-697 (period of analysis used in modeling included critical and dry periods as well as multi-year droughts and monthly stress periods) ), including droughts more severe than the one persisting at the time the present legal challenge was filed. AR 27429; see also AR 25706. Plaintiffs point to no better data set the Authority could have incorporated into its SACFEM2013 modeling. Nor do Plaintiffs explain how additional data would have made any material difference in the informational value of the baseline description. In addition, the FEIS/R includes in its in description of the environmental baseline data on groundwater levels through water year 2014 demonstrating "a general decreasing trend in groundwater levels in the Sacramento Valley." AR 25656. Put another way, the FEIS/R discusses each potentially impacted groundwater basin through the use of both modeling and real data-the real data extending up through and including 2014. In light of the entire record, the Court concludes that substantial evidence supports the Authority's approach to describing existing groundwater conditions.

In response to the Court's request for supplemental briefing on the issue of the FEIS/R's description of the groundwater baseline, Plaintiffs focus almost exclusively on new arguments about how the CalSim II model operates, without providing any explanation of how the CalSim II model relates to groundwater conditions. ECF No. 69 at 4-7. This is despite the fact that the record suggests SACFEM2013 is the model used to evaluate groundwater levels and demands. AR 27430. The Court will not entertain new arguments regarding CalSim II in the context of Plaintiffs' challenge to how the FEIS/R treats groundwater demand in its description of the baseline. Plaintiffs do make one other argument about SACFEM2013, asserting that the Authority "cannot point to substantial evidence demonstrating that the model considers trends in groundwater demands such that the [F]EIS/R could meaningfully assess the extent to which additional groundwater pumping caused by the project would exacerbate trends in groundwater demands that have cause persistent drawdown over the course of decades. Relying on 2005 demands, the [F]EIS/R does not even describe existing conditions at the time of the [Notice of Publication of the FEIS/R]." ECF No. 69 at 5. Here, Plaintiffs appear to confuse the fact that the CalSim II model set its level of demand at 2005 levels, while the SACFEM2013 model used demand set at *1023 2010 levels. The Court is not in a position to tease out an argument from this confusion and finds nothing in Plaintiffs' response to the request for supplemental briefing that undermines its earlier conclusion that the Authority did not act unlawfully by utilizing a 2010 level of demand for its SACFEM2013 modeling efforts. Plaintiffs' motion for summary judgment on this issue is DENIED; the Authority's cross-motion is GRANTED.

(4) Failure to Utilize Datasets that Better Reflect Climate Change

Finally, Plaintiffs appear to include within their set of challenges to the CEQA "baseline" an argument about climate change. Specifically, as part of Plaintiffs' critique of the FEIS/R's use of an "arbitrary baseline period of 1970-2003," Plaintiffs argue that this period "fails to account for ongoing increases in global temperatures." ECF No. 45 at 23. Yet, Plaintiffs fail to develop this as a "baseline" argument in any serious way, focusing instead on whether the FEIS/R meaningfully assessed the impacts associated with ongoing climate change. See id. at 25. Under the rubric of Neighbors , which stands for the general proposition that the baseline should normally be the conditions extant at the time environmental review commences, the arguments Plaintiffs do make about climate change do not fit within the baseline framework. Id. at 25-26 (Plaintiffs challenging FEIS/R's conclusion that impacts of climate change over course of project would be minimal). The Court will not manufacture an argument where none is made and where none exists.

b. Analysis of Climate Change Impacts (CEQA and NEPA)

Plaintiffs do argue directly that the FEIS/R as a whole fails to meaningfully assess impacts associated with ongoing climate change. 30 As to this argument, Plaintiffs assert the FEIS/R violates both CEQA and NEPA.

Here, Plaintiffs point to record evidence in the FEIS/R projecting specific, relevant impacts of climate change on California's water supply. For example, the FEIS/R reviews several major reports on the impacts of climate change on California, each based on different global climate models and emissions scenarios, and presents the range of projected changes. See AR 25861-65862. With respect to impacts of climate change on snowpack and streamflow, the FEIS/R indicates:

Snowpack and streamflow amounts are projected to decline because of less late winter precipitation falling as snow and earlier snowmelt (Melillo, Richmond, and Yohe 2014). In California, snow water equivalent (the amount of water held in a volume of snow) is projected to decrease by 16 percent by 2035 , 34 percent by 2070, and 57 percent by 2099, as compared to measurements between 1971 and 2000 (Melillo, Richmond, and Yohe 2014). By the end of the century, late spring streamflow could decline by up to 30 percent (CEC 2011).

AR 25864 (emphasis added). Plaintiffs' comments on the DEIS/R suggested that the Lead Agencies use these figures to calculate projected loss of snowpack over the life of the project, as snowpack is a factor in surface water supply projections. AR 21832. Instead of doing so, the FEIS/R acknowledges that "changes to annual temperatures, extreme heat, precipitation, sea level rise and storm surge, and snowpack and streamflow are expected to occur in the future because of climate change," but concludes: "Because of the short-term duration of the Proposed Action (10 years), *1024 any effects of climate change on this alternative are expected to be minimal. Impacts to the Proposed Action from climate change would be less than significant." AR 25874. Again, this conclusion appears to be in conflict with the data disclosed in the FEIS/R itself. With snow water equivalent predicted to decline by 16 percent by 2035, one cannot escape the obvious deduction that snow water equivalent is likely to decline by some (possibly significant) fraction of 16 percent by the end of the Proposed Action in 2024.

(1) CEQA Analysis

The Authority takes the position that CEQA does not require an agency to analyze significant effects of climate change on a project. ECF No. 68 at 11. California Bldg. Indus. Ass'n v. Bay Area Air Quality Mgmt. Dist. , 62 Cal. 4th 369 , 386, 196 Cal.Rptr.3d 94 , 362 P.3d 792 (2015) (" CBIA I "), provides some support for this proposition, but requires considerable explanation. As discussed above, CEQA requires public agencies to conduct an environmental review of discretionary projects they carry out or approve and to prepare an EIR for any project that may have a significant effect on the environment. Cal. Pub. Res. Code §§ 21151 , 21100, 21080. The CEQA Guidelines "encourage public agencies to develop and publish 'thresholds of significance' to assist in determining whether a project's effect will be deemed significant." California Bldg. Indus. Ass'n v. Bay Area Air Quality Mgmt. Dist. , 2 Cal. App. 5th 1067 , 1073, 207 Cal.Rptr.3d 911 (2016), as modified on denial of reh'g (Sept. 9, 2016) (" CBIA II ") (citing CEQA Guidelines § 15064.7). "A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which mean the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant." CEQA Guidelines, § 15064.7(a).

CBIA I evaluated a challenge to thresholds of significance concerning certain air pollutants, along with guidelines concerning their use, published by the Bay Area Air Quality Management District. CBIA II , 2 Cal. App. 5th at 1073 , 207 Cal.Rptr.3d 911 . The challenged thresholds directed project proponents to evaluate whether the project would locate "new receptors" (such as residences, schools, school yards, parks, playgrounds, daycare centers, nursing homes, and medical facilities) close to existing or future proposed sources of air pollution and whether those existing sources would adversely affect individuals within the planned project. Id. at 1074-75 , 207 Cal.Rptr.3d 911 . Building interests sued, arguing, among other things, that the "new receptor" thresholds "were arbitrary and capricious to the extent they required an evaluation ... of the impacts the environment would have on a given project." Id. at 1076 , 207 Cal.Rptr.3d 911 . Both the trial and appellate courts resolved the matter on other grounds. Id. at 1076-77 , 207 Cal.Rptr.3d 911 . The California Supreme Court granted a petition for review of the question: "Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?" Id. (citing CBIA I , 62 Cal. 4th at 381 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 ). The appellate court's summary of the Supreme Court's analysis is concise and accurate:

In the proceedings before the Supreme Court on review, [the Air] District took the position that "when existing environmental conditions on or near the proposed project site pose hazards to humans brought to the site by the project, the project may have potentially significant environmental effects requiring *1025 evaluation." ( Building Association, supra , 62 Cal. 4th at p. 386 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .) CBIA took the "contrasting view" that the relevant consideration when determining the need for an EIR was the project's effect on the environment, not the environment's effect on the project. ( Ibid. ) In its opinion, the Supreme Court agreed with CBIA as a general matter: "In light of CEQA's text and structure, we conclude that CEQA generally does not require an analysis of how existing environmental conditions will impact a project's future users or residents." ( Building Association, supra , 62 Cal.4th at p. 386 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .)

In reaching this conclusion, the Supreme Court acknowledged District's argument that CEQA is concerned with public health and safety, and requires a finding of " ' "a significant effect on the environment" ' ( [Pub. Res. Code] § 21083(b) ) whenever the 'environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.' ( [Pub. Res. Code], § 21083(b)(3).)" ( Building Association , supra , 62 Cal. 4th at p. 387 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .) But the District's reading of this language "goes too far.... The statute does not provide enough of a basis to suggest that the term 'environmental effects' as used in this context is meant, as a general matter, to encompass these broader considerations associated with the health and safety of a project's future residents or users. [Public Resources Code s]ection 21060.5 defines 'environment' as 'the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.' ( [Pub. Res. Code,] § 21060.5.) Given the text of [Public Resources Code] section 21083 and other relevant provisions of the statutory scheme to which it belongs-including CEQA's statute-wide definition of 'environment'-the phrase in question is best interpreted as limited to those impacts on a project's users or residents that arise from the project's effects on the environment . Even if one reads into CEQA's definition of 'environment' a concern with people-a reading that, notwithstanding [Public Resources Code] section 21060.5, is conceivable given the Legislature's interest in public health and safety- [Public Resources Code] section 21083 does not contain language directing agencies to analyze the environment's effects on a project. Requiring such an evaluation in all circumstances would impermissibly expand the scope of CEQA ." ( Building Association , at p. 387, 196 Cal.Rptr.3d 94 , 362 P.3d 792 , italics added.)

The Supreme Court continued: "The rest of the statute's relevant provisions underscore why. Despite the statute's evident concern with protecting the environment and human health, its relevant provisions are best read to focus almost entirely on how projects affect the environment. ( E.g. , [Pub. Res. Code,] §§ 21060.5 [defining environment], 21068 [' "Significant effect on the environment" means a substantial, or potentially substantial, adverse change in the environment'], 21083(b)(1) [directing that a project shall be found to have a ' "significant effect on the environment" ' if it 'has the potential to degrade the quality of the environment'].) Indeed, the key phrase 'significant effect on the environment' is explicitly defined by statute in a manner that does not encompass the environment's effect on the project . (§ 21068 [' "Significant effect on the environment" means a substantial, or potentially substantial, adverse change in the environment.'].) And nowhere in the statute is there any provision *1026 that cuts against the specificity of that definition by plainly delegating power for the agency to determine whether a project must be screened on the basis of how the environment affects its residents or users." ( Building Association, supra , 62 Cal.4th at p. 387 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .)

The court then turned its attention to CEQA Guidelines section 15126.2(a), cited by District in support of its position that CEQA requires a consideration of the environment's effect upon future users of a project. CEQA Guidelines section 15126.2(a) "calls for an EIR to 'identify and focus on the significant environmental effects of the proposed project,' including 'any significant environmental effects the project might cause by bringing development and people into the area affected .' (Italics added.)" ( Building Association, supra , 62 Cal. 4th at p. 385 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .) It further states: " '[A]n EIR [should] evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards areas.' " (CEQA Guidelines, § 15126(a).)

The Supreme Court found valid the above-quoted portions of CEQA Guidelines section 15126(a) "to the extent they call for evaluating a project's potentially significant exacerbating effects on existing environmental hazards...." ( Building Association, supra , 62 Cal. 4th at p. 388 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .) "Because this type of inquiry still focuses on the project's impacts on the environment -how a project might worsen existing conditions-directing an agency to evaluate how such worsened conditions could affect a project's future users or residents is entirely consistent with this focus and with CEQA as a whole." ( Id. at p. 389, 196 Cal.Rptr.3d 94 , 362 P.3d 792 .) But the Court found two additional sentences contained in CEQA Guidelines section 15126.2(a) to be "clearly erroneous and unauthorized under CEQA: '[A]n EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.' " ( Building Association , supra , 62 Cal. 4th at p. 390 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 .) These two sentences-which described a project that would not itself exacerbate the hazard, but whose occupants might be jeopardized by existing conditions-"impos[ed] a requirement too far removed from evaluating a project's impacts on the environment." ( Ibid. )

CBIA II , 2 Cal. App. 5th at 1077 -1079 , 207 Cal.Rptr.3d 911 (parallel citations omitted, italicized emphasis in original, underlined emphasis added). In sum, CEQA "does not generally require an agency to consider the effects of existing environmental conditions on a proposed project's future users or residents" but does mandate "an analysis of how a project might exacerbate existing environmental hazards." CBIA I , 62 Cal. 4th at 392 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 (emphasis added). The California Supreme Court provided an example.

Suppose that an agency wants to locate a project next to the site of a long-abandoned gas station. For years, that station pumped gasoline containing methyl tertiary-butyl ether (MTBE), an additive-now banned by California-that can seep into soil and groundwater. [Citations.] Without any additional development in the area, the MTBE might well remain locked in place, an existing condition whose risks-most notably the *1027 contamination of the drinking water supply-are limited to the gas station site and its immediate environs. But by virtue of its proposed location, the project threatens to disperse the settled MTBE and thus exacerbate the existing contamination. The agency would have to evaluate the existing condition-here, the presence of MTBE in the soil-as part of its environmental review. Because this type of inquiry still focuses on the project's impacts on the environment-how a project might worsen existing conditions-directing an agency to evaluate how such worsened conditions could affect a project's future users or residents is entirely consistent with this focus and with CEQA as a whole.

Id. at 389 , 196 Cal.Rptr.3d 94 , 362 P.3d 792 . In Ballona Wetlands Land Tr. v. City of Los Angeles , 201 Cal. App. 4th 455 , 474, 134 Cal.Rptr.3d 194 (2011), for example, a case decided before CBIA I , a California appellate court held that an EIR was not required to discuss the impact of sea level rise on a planned real estate development project because "identifying the environmental effects of attracting development and people to an area is consistent with CEQA's legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA's legislative purpose nor required by the CEQA statutes."

The FEIS/R does analyze of the Project's anticipated contribution to global climate change in the form of, for example, increased emissions of greenhouse gasses caused by increased groundwater pumping for groundwater substitution transfers. AR 25382; 25872-77. Plaintiffs do not challenge this aspect of the FEIS/R. Plaintiffs do insist, however, that climate change is an "existing condition" and "hazard," the effects of which the Proposed Action could potentially exacerbate and therefore that additional analysis was required in the FEIS/R. ECF No. 69 at 8. There is scant caselaw applying this "exacerbation" rule. One of the only cases to discuss it in any detail is East Sacramento Partnership for a Livable City v. City of Sacramento , 5 Cal. App. 5th 281 , 296-97, 209 Cal.Rptr.3d 774 (2016), as modified on denial of reh'g (Dec. 6, 2016) (" ESPLC "). Plaintiffs in that case challenged an EIR for a residential infill development, claiming that the "[a]dditional vehicles, residents, visitors, and others coming to the property because of the Project will undeniably contribute to and exacerbate, the already bad air quality, traffic, and other environmental conditions." Id. at 297 , 209 Cal.Rptr.3d 774 . Critically, the ESPLC court demanded of Plaintiffs factual support for their assertions of exacerbation. Id.

In the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence. Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence. Thus, project opponents must produce evidence, other than their unsubstantiated opinions, that a project will produce a particular adverse effect .

Id. (internal quotation marks and citations omitted, emphasis in original). Here, Plaintiffs point out, correctly, that the record supports a finding that climate change will have an impact on the water supply, which will in turn put pressure on California's water resources "which are already fully utilized by the demands of a growing economy and population." AR 25865. Moreover, the record indicates that "larger agricultural demands may lead to increased stress on the management of surface water resources and, potentially, the over exploitation of groundwater aquifers." Id. But, Plaintiffs fail to point to record evidence substantiating their position that the *1028 Project may exacerbate impacts to water supply caused by climate change . They repeatedly demand that the Authority provide substantial evidence of the absence of such a connection. See ECF No. 69 at 10 (Authority "has failed to incorporate into the FEIS/R any meaningful analysis of whether the Proposed Action would exacerbate existing climate change hazards."). But, as discussed, ESPLC suggests Plaintiffs bear the burden of identifying evidence of exacerbation. This makes sense in light of the fact that the exacerbation standard is an exception to the general rule that an EIR need not evaluate the impacts of the environment on a proposed project. Plaintiffs' motion for summary judgment that the FEIS/R's climate change analysis violates CEQA is DENIED; the Authority's cross-motion is GRANTED.

(2) NEPA Analysis

In contrast, the parties appear to be in agreement that NEPA requires an evaluation of the impact of climate change on a project, at least under certain circumstances. See ECF No. 67 at 5-6 & n.4. Draft Guidance in place at the time the FIES/R issued indicated:

When assessing the effects of climate change on a proposed action, an agency typically start[s] with an identification of the reasonably foreseeable future condition of the affected environment for the "no action" alternative based on available climate change measurements, statistics, observations, and other evidence. See Considering Cumulative Effects (CEQ 1997) at www.nepa.gov. The reasonably foreseeable affected environment should serve as the basis for evaluating and comparing the incremental effects of alternatives. 40 CFR § 1502.15 .

"Draft NEPA Guidance On Consideration of The Effects Of Climate Change And Greenhouse Gas Emissions," (Feb. 18, 2010)(available at https://ceq.doe.gov/docs/ceq-regulations-and-guidance/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf) (hereinafter "Draft Guidance"). 31

At least one climate modeling scenario included in the AR predicts that, statewide, snow water equivalent will decrease by 16 percent by 2035. AR 25864. 32 Despite this, the FEIS/R evaluates the impact of the Project on water supplies using the CalSim II model, which is based upon "82 years of historical hydrology from water year 1922 through 2003." AR 27843. Plaintiffs protest this approach, arguing that it was unreasonable to rely on modeling that utilizes only historic data when the record reflects that "[t]the past century is no longer a reasonable guide to the future for water management." ECF No. 69 at 18 (citing AR 82917, the "Second National Climate Assessment," cited in the FEIS/R and included in the AR).

*1029 Federal Defendants offer several explanations in an attempt to justify the approach used in the FIES/R. First, Federal Defendants point to the Draft Environmental Impact Report/Environmental Impact Statement for the Bay Delta Conservation Plan ("Draft Bay Delta EIR/EIS"), which incorporated temperature and precipitation projections drawn from "multiple general circulation models and emissions projections" into rainfall runoff models. ECF No. 67 at 2 (citing AR 139843-58). The results of these runoff models were compared to runoff modeling results based on historic temperature and precipitation information to "define the influences of climate change centered on these future periods." Id. The results predict that, on an annual basis, inflow to key reservoirs in California will not be substantially different from historic patterns. Id. at 3 (citing AR 139849-58). For example, the ratio of projected average inflow in 2025 to historic inflow to Shasta Reservoir is 1:1. AR 139844-45, 139851-52. In theory, this record evidence demonstrating that precipitation overall will not change as a result of climate change could justify reliance on modeling that utilized historic datasets, were it not for a significant limitation of the analysis on which Federal Defendants rely. Plaintiffs point out, correctly, that the modeling results to which Federal Defendants refer are based upon predictions of annual inflows to reservoirs. They argue that reviewing only annual trends misses a key factor: changes in the timing of precipitation. Plaintiffs point to information in the record that indicates "[r]educed snowpack and earlier snow melt will alter the timing and amount of water supplies, posing significant challenges for water resource management in the West." AR 82878. An appendix to the Draft Bay Delta EIR/EIS entitled "Climate Change Effects on Hydrology in the Study Area Used for CALSIM Modeling Analysis" ("CalSim II Appendix") acknowledges this, indicating: "The simulated projected changes in monthly and annual runoff from projected future climate change generally reflect the expected shift from snowpack runoff (in April, May, and June) to rainfall runoff (in January, February, and March)." AR 139843. This is not academic nit-picking. As the CalSim II Appendix explains, this "decrease in inflow during the peak irrigation period of June, July and August will be particularly difficult for existing agricultural water supplies, and will likely require additional groundwater recharge in the spring with increased groundwater pumping in the summer months ." AR 139849 (emphasis added). 33 Federal Defendants' focus on annual patterns ignores a critical aspect of the impact in question.

Second, Federal Defendants suggest that the predicted 16 percent snow-water equivalent decrease emphasized by Plaintiff was based upon modeling of a "worst case scenario." ECF No. 67 at 3-4. Specifically, the relied-upon prediction came from the "A2" emissions scenario, one of several modeled scenarios. See AR 25861-62. According to Federal Defendants, "A2" scenario predicts the "highest and worst-case events and assumes continued increases in emissions throughout the century." ECF No. 67 at 3 (citing AR 83089, 83545-547). Presumably, Federal Defendants make this argument because NEPA does not require worst-case analysis. Methow Valley , 490 U.S. at 356 , 109 S.Ct. 1835 . But, as *1030 Plaintiffs point out, ECF No. 51 at 11, the A2 scenario is not a "worst case" scenario, at least not in the way that term is generally understood, in part because the record reflects that "[r]ecent carbon dioxide emissions have, in fact, been higher than in the A2 scenario. Whether this trend will continue is not possible to predict because it depends on societal choices." AR 83903 (emphasis added).

Federal Defendants make one other argument that is simply illogical, asserting:

The global dispersion of greenhouse gases means that localized environmental impacts cannot be traced to California's particular emissions. Even if there were a way to trace state-specific emissions to particular climate change impacts, record evidence demonstrates that emissions in California are decreasing, see e.g. , AR82457 (indicating that greenhouse gas emissions decreased by 1.6 percent between 2000 and 2012 in California), and that the State has set goals for future reduction in coming years, including over the life of the Project. See, e.g. AR82461. Thus, given this and other information in the record discussed above, it was not contradictory for Federal Defendants to conclude that "any effects of climate change on [the Proposed Action] alternative are expected to be minimal. Impacts to the Proposed Action from climate change would be less than significant." AR25874.

ECF No. 67 at 4. In this argument Federal Defendants rely on information demonstrating greenhouse gas emissions from California sources are decreasing to argue that impacts to the Proposed Action from climate change would be less than significant. This adds nothing but confusion to the discussion. As the first sentence of the above-quoted paragraph indicates, it is undisputed (and indisputable) that greenhouse gas emissions from California cannot and will not control the trajectory of climate change overall.

The Authority's relevant arguments on this topic (i.e., those arguments that could arguably be applied to a NEPA analysis), which focus on modeling, are equally unavailing. The Authority emphasizes that "[modeling] is the best available tool to estimate the effects of transfers in a range of scenarios" and argues that "[a]ny climate change effects that may have occurred in the most recent ten-year period are difficult to discern in context and would be too small to be outside the range of modeling variability." ECF No. 48 at 17 (citing AR 27429, 27934). The Authority then sets up a straw man by arguing that "[i]t is certainly possible that the next ten years may be the driest on record, potentially influenced to an unknown extent by climate change, but it would be speculative to develop hydrology for the period of analysis in the [FEIS/R] (2015-2024) as a series of 10 consecutive critical years based on potential climate change." Id. (citing AR 27429). In light of the contrary record evidence cited above concerning decreasing snow water equivalent, the Authority fails to point to record evidence to support its conclusory assertion that it is "speculative to develop hydrology for the period of analysis in the [FEIS/R]." The cited pages from the AR contain no explanation of or support for this conclusion, leaving the Court with nothing upon which it could find that the Authority's assertion is based upon record evidence. 34

*1031 In evaluating the treatment of climate change in the FEIS/R, the Court finds Wild Fish Conservancy v. Irving , 221 F.Supp.3d 1224 (E.D. Wash. 2016), to be instructive, even though the relevant sections of that case concern the ESA's best available science standard. In that case, the National Marine Fisheries Service ("NMFS") was required to evaluate under the ESA whether the operation of a fish hatchery would jeopardize the continued existence of endangered fish that spawn in the same watershed serviced by the hatchery. Id. at 1227-28 . That analysis contained a detailed discussion of the effects of climate change on salmon recovery in the region, "including that models predict a significant reduction in total snowpack and low-elevation snowpack, affecting streamflow and water temperatures." Id. at 1233 . Despite the projected changes reflected in the record, NMFS used historic stream and water temperature data to analyze the hatchery's operations and water use. Id. NMFS argued that it properly considered the best available science on region-wide climate change and relied on only historic averages to conduct its analysis of the specific stream on which the hatchery was located because no finer-scale climate change analysis of that stream was available. Id.

While acknowledging that a court must give deference to an expert agency on highly scientific or technical questions, the Wild Fish court emphasized that "a voluminous and technical record does not insulate a decision from judicial review under that deferential standard." Id.

The problem with NMFS's analysis is not that it used recent historical streamflow data to model the effects of hatchery operations and water use at different flow levels. [Record citation.] The problem here is that NMFS included no discussion whatsoever of the potential effects of climate change in the BiOp's analysis of the Hatchery's future operations and water use. NMFS discusses the effects of climate change generally and then proceeds with analysis on the apparent assumption that there will be no change to the hydrology of Icicle Creek. NMFS does not necessarily need to conduct a study or build a model addressing the impacts of climate change on the Icicle Creek watershed. But its analysis must consider that the best available science, which it discusses elsewhere in the BiOp, suggests that baseline historical flow averages may not be effective predictors of future flows.

Id. at 1233-34 . The failure was not necessarily the failure to build a model based on the more general climate change information, but the failure to consider that information in any meaningful or logical way. This was arbitrary and capricious "fail[ure] to consider an important aspect of the problem." Id. at 1234 .

The FEIS/R suffers from a strikingly similar failure. It explains that snowpack and streamflow is predicted to decline:

Snowpack and Streamflow: Snowpack and streamflow amounts are projected to decline because of less late winter precipitation falling as snow and earlier snowmelt (Melillo, Richmond, and Yohe 2014). In California, snow water equivalent the amount of water held in a volume of snow is projected to decrease by 16 percent by 2035, 34 percent by 2070, and 57 percent by 2099, as compared to measurements between 1971 and 2000 (Melillo, Richmond, and Yohe 2014). By the end of the century, late spring streamflow could decline by up to 30 percent.

*1032 AR 25864. Nonetheless, the FEIS/R fails to address or otherwise explain how this information about the potential impacts of climate change can be reconciled with the ultimate conclusion that climate change impacts to the Project will be less than significant:

Changes to the environment from climate change could affect the Proposed Action. As described in the Section 3.6.1.3, changes to annual temperatures, extreme heat, precipitation sea, level rise and storm surge, and snowpack and streamflow are expected to occur in the future because of climate change. Because of the short-term duration of the Proposed Action (10 years), any effects of climate change on this alternative are expected to be minimal. Impacts to the Proposed Action from climate change would be less than significant.

AR 25874. As in Wild Fish , this amounts to a "failure to consider an important aspect of the problem." 35 Accordingly, Plaintiffs' motion for summary judgment that the FEIS/R's analysis of climate change violates NEPA is GRANTED; Federal Defendants' cross-motion is DENIED.

c. Assessment of Water Quality Impacts (CEQA and NEPA)

Plaintiffs next argue that the FEIS/R is unlawful because it fails to evaluate water quality impacts in a manner that comports with the law. ECF No. 45 at 28. Plaintiffs do not specify whether this challenge is brought under CEQA and NEPA. Because both the Authority and Federal Defendants have responded to the motion substantively, the Court addresses compliance with both statutes.

Plaintiffs first point out that the FEIS/R sets forth certain standards of significance for impacts to water quality as follows:

Significance Criteria

For the purposes of this EIS/EIR, impacts to water quality would be considered significant if implementation of any of the alternatives would:

• Violate existing water quality objectives or standards;

• Result in long-term adverse effects on beneficial uses; or

• Substantially degrade existing water quality.

AR 25556. Plaintiffs focus on the first trigger. 36 Among applicable water quality standards or objectives, the FEIS/R references those included in D-1641, which "require that the [CVP] and [SWP] be operated to protect water quality, and that DWR and/or Reclamation ensure that the flow dependent water quality objectives are met in the Delta." AR 25539. Plaintiffs complain that the FEIS/R fails to mention that Reclamation and DWR "routinely request relaxation of these standard

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