1

Filed 9/22/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CENTRAL DELTA WATER AGENCY et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF WATER RESOURCES,

Defendant and Respondent;

ROLL INTERNATIONAL CORPORATION et al.,

Real Parties in Interest and Appellants;

KERN COUNTY WATER AGENCY et al.,

Real Parties in Interest and Respondents.

C078249

(Super. Ct. No. 34-2010-

80000561-CU-WM-GDS)

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiff and Appellant,

v.

DEPARTMENT OF WATER RESOURCES,

Defendant and Respondent.

C080572

(Super. Ct. No. 34-2010-

80000561-CU-WM-GDS)
2

CENTER FOR FOOD SAFETY et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF WATER RESOURCES,

Defendant and Respondent;

DUDLEY RIDGE WATER DISTRICT et al.,

Real Parties in Interest and Respondents.

C086215

(Super. Ct. No. 34-2016-

80002469-CU-WM-GDS)

APPEAL from judgments of the Superior Court of Sacramento County, Timothy 

M. Frawley, Judge. Affirmed.

Law Office of Adam Keats, Adam Keats; John Buse and Aruna Prabhala for 

Plaintiffs and Appellants in case No. C078249.

April Rose Sommer, John Buse and Nicholas Whipps for Plaintiff and Appellant 

in case No. C080572.

Law Office of Adam Keats, Adam Keats; Kellan Smith; John Buse and Aruna 

Prabhala for Plaintiffs and Appellants in case No. C086215.

Nossaman, Stephen N. Roberts, Robert D. Thornton, John J. Flynn III, David 

Miller; Roll Law Group and Sophie N. Froelich for Real Parties in Interest and 

Appellants Roll International Corporation, Paramount Farming Company LLC, Westside 

Mutual Water Company and Tejon Ranch Company in case No. C078249.

Downey Brand, Steven P. Saxton, Kevin M. O’Brien; Young Wooldridge, Steven 

M. Torigiani and Ernest A. Conant for Real Party in Interest and Appellant Kern Water 

Bank Authority in case No. C078249.
3

Young Wooldridge, Steven M. Torigiani and Ernest A. Conant for Real Parties in 

Interest and Appellants Dudley Ridge Water District, Semitropic Water Storage District, 

Tejon-Castac Water District and Wheeler Ridge-Maricopa Water Storage District in case 

No. C078249.

Rossmann and Moore, Antonio Rossmann and Roger B. Moore for Planning and 

Conservation League as Amicus Curiae on behalf of Plaintiffs and Appellants in case No. 

C078249.

Kamala D. Harris, Xavier Becerra, Rob Bonta, Attorneys General, Robert W. 

Byrne, Assistant Attorney General, Eric M. Katz, Marilyn H. Levin and Daniel M. Fuchs, 

Deputy Attorneys General, for Defendant and Respondent.

Kronick, Moskovitz, Tiedemann & Girard, Hanspeter Walter, Daniel J. O’Hanlon 

and Elizabeth L. Leeper for Real Party in Interest and Respondent Kern County Water 

Agency in case No. C078249.

Adam C. Kear and Marcia L. Scully for Real Party in Interest and Respondent The 

Metropolitan Water District of Southern California in case No. C078249.

Redwine and Sherrill, Steven B. Abbott and Julianna K. Tillquist for Real Party in 

Interest and Respondent Coachella Valley Water District in case No. C078249.

The Law Offices of Young Wooldridge and Steven M. Torigiani for Real Party 

Interest and Respondent Oak Flat Water District in case No. C078249.

Lemieux & O’Neill, W. Keith Lemieux and Christine M. Carson for Real Parties 

in Interest and Respondents Littlerock Creek Irrigation District and San Gabriel Valley 

Municipal Water District in case No. C078249.

Brownstein Hyatt Farber Schreck and Lisabeth D. Rothman for Real Parties in 

Interest and Respondents Central Coast Water Authority and Santa Barbara County Flood 

Control and Water Conservation District in case No. C078249.

Somach Simmons & Dunn, Andrew Hitchings and Aaron A. Ferguson for Real 

Party in Interest and Respondent City of Yuba City in case No. C078249. 

Minh Tran, County Counsel, and Robert Martin, Deputy County Counsel, for Real 

Party in Interest and Respondent Napa County Flood Control and Water Conservation 

District in case No. C078249.

Brunick, McElhaney & Beckett and Leland McElhaney for Real Party in Interest 

and Respondent Mojave Water Agency in case No. C078249.
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Best Best & Krieger and Kimberly E. Hood for Real Parties in Interest and 

Respondents Antelope Valley-East Kern Water Agency, Santa Clarita Valley Water 

Agency, Crestline-Lake Arrowhead Water Agency, Desert Water Agency, and San 

Gorgonio Pass Water Agency in case No. C078249.

Colleen Carlson, County Counsel, for Real Party in Interest and Respondent 

County of Kings in case No. C078249.

Anthony T. Fulcher for Real Party in Interest and Respondent Santa Clara Valley 

Water District in case No. C078249.

Herum/Crabtree/Suntang and Jeanne M. Zolezzi for Real Party in Interest and 

Respondent Solano County Water Agency in case No. C078249.

Hanson Bridgett and Stephen B. Peck for Real Party in Interest and Respondent 

Alameda County Water District in case No. C078249.

Downey Brand and David R.E. Aladjem for Real Parties in Interest and 

Respondents Alameda County Flood Control and Water Conservation District, Zone 7 

and San Bernardino Valley Municipal Water District in case No. C078249.

Aleshire & Wynder, Eric L. Dunn and Lindsay M. Tabaian for Real Party in 

Interest and Respondent Palmdale Water District in case No. C078249.

Nossaman, Stephen N. Roberts, Robert D. Thornton, John J. Flynn III, David 

Miller; Roll Law Group and Kristina Diaz for Real Parties in Interest and Respondents 

Roll International Corporation, Roll Law Group PC, Paramount Farming Company LLC 

and Westside Mutual Water Company in case No. C086215.

Downey Brand, Steven P. Saxton, Kevin M. O’Brien; Young Wooldridge, Steven 

M. Torigiani and Ernest A. Conant for Real Party in Interest and Respondent Kern Water 

Bank Authority in case No. C086215.

Young Wooldridge, Steven M. Torigiani and Ernest A. Conant for Real Parties in 

Interest and Respondents Dudley Ridge Water District, Semitropic Water Storage 

District, Tejon-Castac Water District and Wheeler Ridge-Maricopa Water Storage 

District in case No. C086215.

Kronick, Moskovitz, Tiedemann & Girard and Hanspeter Walter for Real Party in 

Interest and Respondent Kern County Water Agency in case No. C086215.
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Adam C. Kear and Marcia L. Scully for Real Party in Interest and Respondent The 

Metropolitan Water District of Southern California in case No. C086215.

Redwine and Sherrill and Steven B. Abbott for Real Party in Interest and 

Respondent Coachella Valley Water District in case No. C086215.

Anthony T. Fulcher for Real Party in Interest and Respondent Santa Clara Valley 

Water District in case No. C086215.

Hanson Bridgett and Nathan A. Metcalf for Real Party in Interest and Respondent 

Alameda County Water District in case No. C086215.

The Law Offices of Young Wooldridge, Steven M. Torigiani and Brett A. Stroud 

for Real Party Interest and Respondent Oak Flat Water District in case No. C086215.

Best Best & Krieger, Charity Schiller and Kimberly E. Hood for Real Parties in 

Interest and Respondents Santa Clarita Valley Water Agency, San Gorgonio Pass Water 

Agency, Desert Water Agency and Crestline-Lake Arrowhead Water Agency in case No. 

C086215.

Olivarez Madruga Lemieux O’Neill and Manuel D. Serpa for Real Party in 

Interest and Respondent Littlerock Creek Irrigation District in case No. C086215.

Brownstein Hyatt Farber Schreck and Amy M. Steinfeld for Real Party in Interest 

and Respondent Central Coast Water Authority in case No. C086215.

Lagerlof, Senecal, Gosney & Kruse and James D. Ciampa for Real Party in 

Interest and Respondent San Gabriel Valley Municipal Water District in case No. 

C086215.

Juliana F. Gmur, Assistant County Counsel, for Real Party in Interest and 

Respondent County of Kings in case No. C086215.

Ruddell, Stanton, Bixler, Mauritson & Evans and Aubrey A. Mauritson for Real 

Party in Interest and Respondent Tulare Lake Basin Water Storage District in case No. 

C086215.

Somach Simmons & Dunn and Aaron A. Ferguson for Real Party in Interest and 

Respondent City of Yuba City in case No. C086215.

William J. Brunick for Real Parties in Interest and Respondents the Mojave Water 

Agency and the Antelope Valley-East Kern Water Agency in case No. C086215. 
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We have consolidated three appeals against respondent Department of Water 

Resources (DWR). All involve litigation related to changes in long-term water supply 

contracts brought about by the “Monterey Agreement” and “Monterey Amendment.”

In the first case (Central Delta Water Agency et al. v. Department of Water 

Resources, case No. C078249), Central Delta Water Agency, et al. (collectively, Central 

Delta) appeals from the trial court’s decision on a petition for writ of mandate

challenging the adequacy of the “Monterey Plus” environmental impact report (Monterey 

Plus EIR) issued in 2010 and the validity of the Monterey Amendment.

In the second (Center for Biological Diversity v. Department of Water Resources, 

case No. C080572), Center for Biological Diversity (Biological Diversity) appeals from 

the trial court’s denial of attorney fees incurred in connection with its writ petition against 

DWR involving the Monterey Plus EIR and Monterey Amendment.

In the third case (Center for Food Safety et al. v. Department of Water Resources, 

case No. C086215), Center for Food Safety, et al. (collectively, Food Safety) appeals

from the trial court’s denial of a petition for writ of mandate challenging DWR’s revised 

environmental impact report on the Monterey Plus project (Revised EIR).

We will affirm in all three cases.

FACTUAL AND PROCEDURAL BACKGROUND

State Water Project

The State Water Project (SWP) and the Central Valley Water Project comprise 

California’s two great water projects aimed at addressing the state’s “fundamental water 

problem.”1 (El Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006) 

1

 The parties in these appeals do not dispute the factual summaries in the trial court’s 

rulings. Indeed, Central Delta and Food Safety direct us to the court’s rulings for 

background history and facts. Therefore, we draw the facts from the rulings below. (City 

of Anaheim v. Bosler (2019) 42 Cal.App.5th 603, 606.)
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142 Cal.App.4th 937, 945.) Or, as one court termed it, providing a remedy for the 

“ ‘maldistribution’ ” of water in relation to public needs. (Ibid.)

The SWP is one of the largest water projects in the world, consisting of dams, 

reservoirs, storage tanks, pumping plants, aqueducts, pipelines, and canals designed to 

capture, store, and deliver water throughout the state. Each year, the SWP delivers water 

to about 25 million residents from Napa Valley to San Diego and irrigates about 750,000 

acres of farmland.

DWR is charged with operating and managing the SWP. During the 1960s, DWR

entered into long-term contracts with local and regional water contractors, known as the 

State Water Project contractors (SWP contractors).

Under the contracts, the SWP contractors received entitlements to an amount of 

SWP water. Each contract included a “Table A,” which specified the maximum amount 

of SWP water provided to each SWP contractor from the available water during the year. 

The amount of water available depends on rainfall, snowpack, runoff, reservoir capacity, 

pumping capacity, and regulatory and environmental restrictions. In return for their

entitlements, the SWP contractors committed to pay a proportional share of the costs of 

developing, operating, and maintaining the SWP. The SWP contractors agreed to make 

this proportional payment regardless of the amount of available water.

Articles 18 and 21

In negotiating the long-term contracts, DWR and the SWP contractors anticipated 

possible future shortages. The long-term contracts contained provisions regarding a 

water supply shortage. Article 18, subdivision (a) provided that, in a temporary water 

supply shortage, agricultural SWP contractors would have their deliveries cut back first—

up to 50 percent in a year—before a reduction in deliveries to urban SWP contractors, in 

what is colloquially referred to as an “urban preference.”

Article 18, subdivision (b) addressed a permanent water supply shortage and 

provided that, with some exceptions, the entitlements of all SWP contractors would be 
8

reduced proportionately so that total entitlements would equal the SWP’s reduced water 

supply.

Article 21 dealt with a temporary surplus in available water supply. Under article 

21, surplus water would be offered first to agricultural SWP contractors. Article 21, 

subdivision (g)(1), an amendment to the long-term contracts prior to the Monterey 

Amendment, provided that DWR “ ‘shall refuse to deliver such surplus water to any 

contractor . . . to the extent that the State determines that such delivery would tend to 

encourage the development of an economy within the area served by such contractor . . .

which would be dependent upon the sustained delivery of surplus water.’ ”

Kern Water Bank

The Kern Water Bank is an approximately 20,000-acre groundwater reserve in 

Kern County. In 1988, DWR acquired the Kern Fan Element as part of a plan to develop 

the Kern Water Bank. DWR ultimately determined it could not develop a state water 

bank and, in 1993, ceased work on the project.

Prelude to the Monterey Agreement

Application of articles 18 and 21 became a point of contention between the 

agricultural and urban SWP contractors, as the SWP was unable to deliver sufficient 

water to satisfy SWP contractor demands on a reliable basis.

During the 1980s, DWR was able to satisfy Table A requests because demands by 

urban SWP contractors increased more slowly than expected. DWR regularly had 

surplus water to deliver. Agricultural SWP contractors could schedule delivery of 

surplus water as much as five years in advance in what was referred to as “scheduled 

surplus” water.

However, in the late 1980s, SWP contractors were requesting Table A amounts at 

levels higher than available water such that there was no surplus water to schedule. Since 
9

then, DWR has only delivered “unscheduled surplus” water, which is water that 

unexpectedly becomes available over what is required to meet Table A demands.

Many of the facilities originally designated to make up the SWP were not 

completed. When completed, the SWP was expected to deliver about 4.2 million acrefeet of water per year. Failure to complete the facilities resulted in the SWP being unable 

to deliver all the water to which SWP contractors were entitled under the long-term 

supply contracts. (Planning & Conservation League v. Department of Water Resources 

(2000) 83 Cal.App.4th 892, 912-913 (Planning & Conservation).) DWR estimated the 

actual, reliable water supply from the SWP to be 2 to 2.5 million acre-feet of water per 

year. DWR never reduced the original Table A amounts to reflect the deficiency.

A drought in the early 1990s compounded the problem, resulting in even larger 

disparities between contractual water amounts and those actually delivered.2 During the 

drought, DWR relied on article 18, subdivision (a) of the water contracts to reduce 

significantly amounts delivered to agricultural SWP contractors. However, under article 

22, agricultural SWP contractors were required to pay DWR for SWP costs even when 

they received little or no water. Many agricultural SWP contractors experienced severe 

financial hardships.

The agricultural SWP contractors believed it was inequitable for DWR to reduce 

water deliveries under article 18, subdivision (a) because the water shortages were 

permanent shortages in part because of the failure to complete the facilities necessary to 

meet the entitlements set forth in Table A. The agricultural SWP contractors believed 

DWR should declare a permanent shortage and reduce all SWP contractors’ annual

2

 For example, in 1991, Kern County Water Agency’s Table A amount for agriculture 

was over 1 million acre-feet. DWR was able to deliver only 8,965 acre-feet. The Kern 

County Water Agency still was contractually obligated to pay DWR more than $37 

million.
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entitlements under article 18, subdivision (b). Urban SWP contractors disagreed. They 

believed that DWR should continue to allocate water under article 18, subdivision (a). 

The 1995 Monterey Agreement

In 1994, DWR and SWP contractor representatives engaged in mediated 

negotiations in an effort to settle allocation disputes under the long-term water supply 

contracts. The negotiations soon went beyond articles 18 and 21 into a discussion of 

revisions to the long-term water supply contracts.

In December 1994, in Monterey, the parties reached a comprehensive agreement

known as the Monterey Agreement. The Monterey Agreement established 14 principles 

designed to resolve water allocation disputes and operational issues of the SWP. These 

principles can be distilled to three general goals: increase the reliability of existing water 

supplies, provide stronger financial management of the SWP, and increase water 

management flexibility.

To implement the Monterey Agreement, the parties drafted an amendment to the 

long-term water supply contracts. This standard amendment and separate amendments to 

the long-term contracts became known as the Monterey Amendment.3

The Monterey Amendment

The Monterey Amendment altered water allocation procedures in times of 

shortage by eliminating the urban preference and mandating that deliveries to both 

agricultural and urban SWP contractors would, with exceptions, be reduced 

proportionately. The amendment also authorized permanent sales of water among

contractors and implemented various other changes in administration of the SWP.

3

 Appellants in case No. C078249 requested judicial notice of (1) DWR’s notice of 

determination and (2) “Findings and Mitigation Measures, Implementation of the 

Monterey Agreement Principles,” both dated December 13, 1995. They concede that the 

trial court denied judicial notice of these documents. As this request is thus little more 

than an attempted end-run around the trial court’s decision, we also deny the request.
11

In addition, the Monterey Amendment transferred the 20,000 acres of farmland, 

the Kern Fan Element, previously considered as the location of the Kern Water Bank, to 

local Kern County entities so that they could develop the groundwater bank. To 

accomplish this, the Monterey Amendment added articles 52 and 53 to the long-term 

water contracts. Article 52 required DWR to convey the Kern property to the Kern 

County Water Agency in accordance with a separate agreement, entitled the “Agreement 

for the Exchange of the Kern Fan Element to the Kern Water Bank,” known as the “KFE 

Transfer Agreement.” Article 53 provided for the transfer and retirement of 45,000 acrefeet of water entitlements from Kern County Water Agency and Dudley Ridge Water 

Agency.

The parties also rewrote article 21. As amended, article 21 (1) eliminated 

scheduled surplus water and gave urban SWP contractors equal access to unscheduled 

surplus water, and (2) eliminated the language in article 21, subdivision (g)(1) regarding 

the use of surplus water for permanent economies as unnecessary.

A joint powers agency composed of two SWP contractors prepared an

environmental impact report on the agreement (the Monterey Agreement EIR), which 

DWR, as responsible agency, certified in 1995. The Monterey Amendment was signed

by 27 of the 29 SWP contractors between 1995 and 1999. In 1995, the parties executed 

the KFE Transfer Agreement.

The Planning and Conservation League Litigation

In December 1995, a group of plaintiffs, including the Planning and Conservation 

League (PCL), filed suit challenging the sufficiency of the Monterey Agreement EIR. 

Among many objections, the PCL plaintiffs argued the Monterey Agreement EIR 

violated the California Environmental Quality Act (CEQA; Pub. Resources Code, 

§ 21000 et seq.) and the contracts were an invalid transfer in violation of the Water Code. 
12

They also alleged DWR, not the two SWP contractors, should have served as the lead 

agency for purposes of preparing the EIR.

In 1996, the trial court entered an order granting DWR’s motion for summary 

adjudication on the reverse validation cause of action, finding the plaintiffs failed to join 

Kern County Water Agency as an indispensable party. The court dismissed the reverse 

validation action. The court subsequently entered a final judgment denying the plaintiffs’ 

application for a writ of mandate to set aside the Monterey Agreement EIR. The court 

concluded the two SWP contractors were not the proper lead agency under CEQA, but 

upheld the adequacy of the environmental impact report.

In 2000, we reversed the trial court’s judgment in Planning & Conservation, 

supra, 83 Cal.App.4th 892. We found the Monterey Agreement EIR invalid because it 

was prepared by the wrong lead agency (id. at p. 907) and because it failed to discuss 

implementation of article 18, subdivision (b) as a “no project” alternative (id. at pp. 919-

920). We found these errors mandated the preparation of a new environmental impact 

report under the direction of DWR. (Id. at p. 926.)

In addition, we held the trial court erred in dismissing the reverse validation 

challenge to the execution of the Monterey Agreement and the KFE Transfer Agreement 

for failure to name and serve indispensable parties. (Planning & Conservation, supra, 

83 Cal.App.4th at p. 926.) We directed the court to vacate its summary adjudication of 

the reverse validation action, to issue a writ of mandate vacating the certification of the 

Monterey Agreement EIR, and to retain jurisdiction over the action until DWR, as lead 

agency, certified the environmental impact report. (Ibid.) We declined the PCL 

plaintiffs’ request to set aside approval of the Monterey Amendment and KFE Transfer 

Agreement.
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Settlement Agreement

The parties engaged in extensive mediated settlement discussions, which led to a 

comprehensive settlement agreement. Among other things, the settlement agreement 

provided that the Kern Water Bank Authority, the public entity created to operate the 

Kern Water Bank, would retain title to the Kern Water Bank and DWR would study its 

impacts in the Monterey Plus EIR. The parties also agreed that DWR would act as the 

lead agency in preparing the Monterey Plus EIR.

The settlement agreement required DWR to prepare a new environmental impact 

report analyzing the Monterey Amendment and the KFE Transfer Agreement and other 

changes to the long-term contracts. This project was known as the Monterey Plus project 

because it included the original Monterey Amendment plus the additional terms and 

conditions of the settlement agreement.

A committee was formed to provide advice and recommendations to DWR in 

connection with the preparation of the Monterey Plus EIR. The committee, with the PCL 

representatives actively participating, met formally at least 25 times before DWR issued a 

draft Monterey Plus EIR in 2007.

In addition, the parties agreed that the Monterey Plus EIR would include analysis 

of (1) the environmental effects of the pre-Monterey Amendment long-term water supply 

contracts as part of the no project alternative, (2) the potential environmental impacts of 

changes in SWP operations and deliveries relating to the implementation of the Monterey 

Plus project, and (3) an analysis and determination regarding the transfer of development 

of the Kern Water Bank.

Monterey Plus EIR

In 2007, DWR released the draft Monterey Plus EIR. DWR analyzed four no 

project alternatives, three of which considered the impacts of the SWP operating as if the 

Monterey Amendment had not been implemented. The fourth no project alternative 
14

analyzed the impacts of the Monterey Amendment but without additional terms and 

conditions of the settlement agreement.

On February 1, 2010, DWR certified the Monterey Plus EIR. DWR determined 

the SWP had not caused any significant impacts from 1996 through 2003. The SWP

could result in additional pumping from the Delta in 2003 through 2020, but any impacts 

on Delta fish would be reduced to a less-than-significant level through compliance with 

existing and future environmental regulatory processes and permits. However, the SWP

could have potentially significant environmental impacts associated with the construction 

of new groundwater banking facilities and more severe depletion of two Southern 

California reservoirs. The Monterey Plus EIR identified and adopted feasible mitigation 

measures, but recognized that these measures might not fully mitigate the impacts and 

adopted a statement of overriding concerns for each impact.

In May 2010, DWR decided to carry out the SWP by continuing to operate under 

the Monterey Amendment and settlement agreement. DWR recorded a notice of 

determination regarding its decision. The trial court discharged the 2003 writ in August 

2010.

Central Delta Petition and Complaint

On June 4, 2010, Central Delta filed a first amended petition for writ of mandate 

and complaint for declaratory and injunctive relief. The first cause of action challenged 

the sufficiency of the Monterey Plus EIR. It alleged the report failed to provide an 

adequate description of the project and its impacts, did not adequately analyze 

alternatives and mitigation measures, contained inadequate responses to public 

comments, and was not circulated properly. Central Delta also challenged the CEQA 

findings as not supported by substantial evidence and asserted DWR failed to provide 

proper notice of determination.
15

The second and third causes of action challenged the validity of the Monterey Plus 

Amendment. The trial court noted that Central Delta lumped all the various underlying 

agreements under this term. To avoid confusion, the trial court stated it would refer to 

the agreements separately as the Monterey Amendment, the KFE Transfer Agreement,

and the “Attachment A Amendments.” Central Delta mounted challenges to the 

Monterey Amendment and the KFE Transfer Agreement, which the trial court designated 

as the “Subject Contracts.”

The second cause of action was a reverse validation action, challenging the 

validity of the KFE Transfer Agreement, as well as the consideration made in exchange 

for the transfer. Central Delta sought to invalidate the agreement. In the alternative, the 

third cause of action also challenged the agreement but requested that the court consider a 

mandamus cause of action if reverse validation did not apply.

Biological Diversity’s Petition and Complaint

On June 30, 2010, Biological Diversity, along with a coalition of water agencies, 

nonprofits and individuals, also filed a petition for writ of mandate and complaint for 

declaratory and injunctive relief. The petition asserted three causes of action. The first 

arose under CEQA, alleging deficiencies in the Monterey Plus EIR and other CEQA 

errors. Biological Diversity asserted DWR violated CEQA and requested that the trial 

court return the Kern Water Bank land to DWR and enjoin the Kern Water Bank’s 

operation. The second and third causes of action arose under the validation statutes, 

alleging the Monterey Amendment and article 52 were invalid.

Two Kern County water districts, Rosedale-Rio Bravo Water Storage District and 

Buena Vista Water Storage District (collectively, Rosedale), also filed suit alleging 

CEQA violations. Their complaint challenged the Monterey Plus EIR’s analysis 

regarding whether the Kern Water Bank adversely affected neighboring groundwater 
16

wells and water banks. Rosedale did not seek to enjoin the operations of the Kern Water 

Bank or void the land transfer.4

2014 Writ

The trial court granted DWR’s motion to set a special trial on the statute of 

limitations, laches, and mootness defenses to Central Delta’s second and third validation

causes of action. In that trial, the trial court found the causes of action time-barred.

Subsequently, the court tried the CEQA claims. The court found no merit in them, 

save for one. The trial court questioned the adequacy of DWR’s analysis of the Kern 

Water Bank’s potential future impact on groundwater and water quality. The parties 

briefed the issue and the court held another hearing. The trial court concluded that the 

Monterey Plus EIR should have further analyzed the impacts associated with the Kern 

Water Bank.

The court issued a ruling on the appropriate remedy and a limited writ of mandate

(the 2014 Writ). The 2014 Writ severed the Kern Water Bank operations from DWR

operations, ordered DWR to decertify the Monterey Plus EIR, and directed DWR to 

revise the report only as necessary to address the Kern Water Bank issue.

Biological Diversity’s Motion for Attorney Fees

On January 23, 2015, Biological Diversity and DWR entered into a stipulation that 

Biological Diversity could have an extension to file a motion for attorney fees “on or 

before March 31, 2015.” Although there were real parties in interest in the underlying 

action, neither Biological Diversity nor DWR requested a stipulation from any of them. 

DWR requested the following stipulation: “DWR contends that Petitioners’ Motion for 

4

 We grant DWR’s request for judicial notice, filed July 7, 2016, in case No. C080572, 

of pleadings or excerpts of pleadings in the Rosedale action. We deny the request for 

judicial notice of excerpts of briefs filed in case No. C078249, since we have 

consolidated that case with case No. C080572.
17

Attorneys Fees was required to be filed by or before December 31, 2014, and seeks to 

preserve its argument that Petitioners’ Motion for Attorneys Fees would be untimely if 

filed on or after the date of this Stipulation.” On January 28, 2015, the court issued an 

order granting the extension of time.

March 31, 2015, was a court holiday, Cesar Chavez Day (Gov. Code, § 19853). 

Biological Diversity filed its motion for attorney fees on the next business day, April 1, 

2015. The motion was filed on behalf of Biological Diversity, California Water Impact 

Network, California Sportfishing Protection Alliance, and Carolee Krieger. Biological 

Diversity served as both a party and the legal representative on the motion. The motion 

requested $1,768,513 in fees for 2,324.3 hours of work.

DWR opposed the motion on several grounds. DWR argued the motion was 

untimely because it was filed more than 30 days after notice of entry of judgment was 

served and the amount of fees sought was unreasonable given Biological Diversity’s 

limited success. Each of the real parties in interest joined DWR’s opposition. Several 

real parties in interest also argued that, even if Biological Diversity had filed the fee 

motion within 60 days after service of notice of entry of judgment, the fee motion was 

filed late because those real parties in interest had not stipulated to extend the due date.

The court determined the motion was untimely for two reasons: (1) the motion 

should have been filed within the 30-day statute of limitations applicable to validation 

causes of action, but Biological Diversity relied on the 60-day limitations period for 

CEQA causes of action; and (2) the extension of time ordered by the court was 

inapplicable because not all parties stipulated to the extension.

The Revised EIR

DWR prepared the Revised EIR in compliance with the 2014 Writ. The Revised 

EIR analyzed the Kern Water Bank’s potential impact to groundwater wells outside the 

Kern Water Bank. DWR reviewed Kern County groundwater and consulted with experts, 

subsequently revising the Kern County groundwater model. The revised model 
18

considered impacts from past, existing, and future Kern Water Bank operations in wet, 

dry, and average rainfall years.

The draft Revised EIR also considered potential impacts of the Kern Water Bank 

on water quality, air quality, terrestrial species, and greenhouse gases. It also examined 

potential impacts on these resources in combination with other groundwater banking 

projects in Kern County.

In April 2016, DWR released the draft Revised EIR. DWR concluded that Kern 

Water Bank’s operations from 1996 through 2014 did not have a significant impact. 

However, without mitigation, future operation might have significant impacts on surface 

water and groundwater hydrology and quality, terrestrial biological resources, geology, 

soils and mineral resources, hazards and hazardous materials, cultural and paleontological 

resources, energy, and climate change, as well as cumulative impacts related to growth. 

The draft Revised EIR concluded those impacts would be less than significant after 

mitigation. The only significant, unavoidable impacts were the Kern Water Bank’s 

facilitation of potential growth-inducing impacts.

The draft Revised EIR identified measures to mitigate the potential impacts to 

local groundwater wells due to Kern Water Bank’s groundwater extraction with the Kern 

Water Bank Authority adopted in a long-term operations plan. Under the plan, the Kern 

Water Bank Authority would monitor groundwater levels monthly, publicly report 

groundwater levels, update the model to project future groundwater conditions, use the 

model to avoid groundwater recovery activities that could negatively impact well owners, 

provide equivalent water to the affected well owners, or provide interim in-home water 

for domestic users. DWR solicited comments on the draft Revised EIR and held two 

public hearings.

In September 2016, DWR certified the Revised EIR, made findings and 

determinations, adopted a mitigation monitoring and report program and, as required by 
19

the 2014 Writ, directed DWR to carry out the proposed project by continuing the use and 

operation of the Kern Water Bank by the Kern Water Bank Authority.

DWR adopted a statement of overriding considerations, detailing the Monterey 

Plus project’s benefits, including that “[w]ater supply reliability and equitable allocation 

among SWP contractors would be facilitated in both wet and dry years, creating 

significant related statewide benefits for the economy, agriculture, environment and 

citizens.” Restructuring SWP allocations would provide benefits by “eliminating 

potentially economically devastating agricultural first shortage provisions.” DWR found

that “[a]gricultural water users would face a lower risk of receiving no water supplies in a 

dry year while still being required to pay high water contract costs. The lowered risk 

could keep some lands in agricultural production even in dry years and consequently 

provide agricultural water users with a baseline of income and reduce their financial 

loss.”

Judicial Review of Revised EIR

In September 2016, DWR filed its return to the 2014 Writ. The Central Delta

plaintiffs did not object to the discharge of the 2014 Writ, but stated their intent, along 

with other parties including Food Safety, to file a new suit challenging the Revised EIR. 

Subsequently, Food Safety and other parties filed a petition for writ of mandate.

Food Safety also filed a motion to stay the case, arguing that the Central Delta 

appeal automatically stayed further proceedings under Code of Civil Procedure section 

916. The trial court found section 916 did not automatically stay its review of the 

Revised EIR. Central Delta then filed a petition for supersedeas in this court to stay the 

trial court proceedings, which we denied.

The parties in all cases stipulated the trial court would conduct a single hearing as 

to whether to discharge the 2014 Writ and on Food Safety’s petition challenging the 

Revised EIR. Following a hearing, in October 2017 the court issued an order discharging 

the 2014 Writ and denying Food Safety’s petition challenging the Revised EIR.
20

DISCUSSION

I. Central Delta Appeal

On appeal from the 2014 Writ, Central Delta contends: (1) DWR violated CEQA 

by failing to make a proper project decision; (2) the Monterey Plus EIR failed to analyze 

article 21, subdivision (g)(1) in the no project alternatives; (3) Central Delta’s validation 

claims are not time-barred; and (4) the trial court was required to order DWR to void its 

project approvals relating to the Kern Water Bank. 

Kern Water Bank Authority, et al. cross-appeal, arguing Central Delta’s challenge 

to the 2010 Monterey Plus EIR is barred by res judicata and Central Delta lacks standing 

to bring suit. We affirm the judgment and deny the cross-complaint.

A. DWR’s Decision on the Monterey Plus EIR

We review an agency’s compliance with CEQA under the abuse of discretion 

standard, i.e., whether the agency has not proceeded in a manner required by law or if its 

determination is not supported by substantial evidence. (Pub. Resources Code, 

§ 21168.5; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 

116 Cal.App.4th 1099, 1105-1106.) Substantial evidence consists of enough relevant 

information and reasonable inferences from this information to support a conclusion, 

even though other conclusions might also be reached. (Cal. Code Regs., tit. 14, 

§ 15384.)5 

We do not assess the correctness of the environmental impact report’s conclusions, 

but only its sufficiency as an informational document. We focus on the report’s 

adequacy, completeness, and good faith effort at full disclosure. (Association of Irritated 

Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390.) A failure to comply 

with CEQA requirements that results in omission of information necessary to informed 

5

 Regulatory guidelines for CEQA are codified at California Code of Regulations, title 

14, section 15000 et seq. (CEQA Guidelines).
21

decisionmaking and public participation constitutes a prejudicial abuse of discretion, 

regardless whether a different outcome would have resulted if the agency had complied 

with the disclosure requirements. (Bakersfield Citizens for Local Control v. City of 

Bakersfield (2004) 124 Cal.App.4th 1184, 1198.) We presume DWR’s decision to certify 

the environmental impact report is correct and a challenger bears the burden of proving 

otherwise. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530 (Sierra 

Club).)

Central Delta contends DWR violated CEQA by failing to make a proper project 

decision. Central Delta maintains that the SWP, for purposes of the Monterey Plus EIR, 

consisted of the Monterey Amendment and the contract amendments described in the 

settlement agreement, not the operation of the SWP pursuant to those amendments. 

According to Central Delta, when DWR made its project decision in the Monterey Plus 

EIR, DWR failed to decide whether to approve, enact, and adopt the contract 

amendments. 

Central Delta asserts that instead DWR “ ‘determined that the proposed project 

[could] be carried out by continuing to operate under the existing Monterey Amendment 

(including the Kern Water Bank transfer) and the existing Settlement Agreement,’ ” 

which “ ‘does not require re-approval or re-execution of the Monterey Amendment or the 

Settlement Agreement.’ ” DWR decided to “continue operating under the Monterey Plus 

proposed project—the Monterey Amendment and the Settlement Agreement” and 

directed “the Department to carry out the proposed project by continuing to operate under 

the existing Monterey Amendment . . . and the existing Settlement Agreement . . . in 

accordance with the terms of those documents as previously executed . . . .”

DWR argues Central Delta waived this argument by failing to raise it in the trial 

court. However, Central Delta made a version of the argument in alleging the Monterey 

Plus EIR violated CEQA by failing to provide an accurate description of the proposed 

project. As the trial court observed, “Petitioners contend that the EIR’s project 
22

description is confusing because it is unclear whether the Monterey Agreement is the 

proposed ‘project’ or the ‘status quo.’ Petitioners argue that if the ‘no project’ alternative 

is operation of the SWP without the Monterey Amendment, then the ‘project’ necessarily 

must be operation of the SWP with the Monterey Amendment. By describing the Project 

as ‘continuing to operate’ under the Monterey Amendment, Petitioners argue that DWR 

has concealed the true scope of the Project.”

As in the trial court, Central Delta contends because the PCL litigation voided the 

prior approvals of the Monterey Amendment, a new project approval is required. The 

trial court disagreed.

The trial court found the case before it was “unusual in that the proposed Project is 

a standardized contract amendment that previously was approved and executed. As part 

of the Settlement Agreement, the parties agreed that DWR would study and consider the 

impacts of the changes in SWP operations resulting from implementation of the 

Monterey Amendment. However, as this court previously concluded, the PCL Litigation 

did not invalidate the contract amendments. To the contrary, the evidence shows that the 

parties ‘validated’ the amended contracts as part of the Settlement Agreement. The 

parties also affirmed that the SWP would continue to be administered and operated under 

the Monterey Amendment while a new EIR was being prepared.”

Because DWR was operating pursuant to the Monterey Amendment while 

preparing the Monterey Plus EIR, the trial court found the report accurately described the 

practical result of carrying out the proposed SWP as “continuing.” The Monterey Plus 

EIR also accurately described the no project alternatives as returning to operation of the 

SWP in accordance with the pre-Monterey Amendment long-term water supply contracts. 

As a result DWR did not err in determining it could carry out the SWP “simply by 

deciding to continue operating under the Monterey Amendment.”

On appeal, Central Delta argues that analyzing impacts of a decision that has 

already been made undermines the effectiveness of an environmental impact report as an 
23

informational document. The trial court agreed in general with this proposition, but 

found this case presented “a highly unusual situation in which the parties agreed, and the 

court approved, a ‘remedial’ EIR to analyze the impacts of the pre-existing contractual 

amendments.”

The court also addressed Central Delta’s contention that the trial court in the PCL

litigation should have invalidated the Monterey Amendment approvals and the failure to 

do so undermines CEQA by turning the Monterey Plus EIR into a “ ‘post hoc 

rationalization’ ” to support action already taken. In a previous ruling, the trial court 

found the problem with this argument is that even if Central Delta is correct, “[t]he time 

to object was when the Settlement Agreement was approved and the writ issued, and 

certainly no later than the discharge of the writ in the PCL Litigation. Neither 

Petitioners, nor the PCL plaintiffs, nor any other person raised any objections and, 

therefore, the PCL writ was issued and discharged and the prior validation action was 

dismissed and became final.”

The trial court concluded that “[t]he unique procedural posture of this case placed 

the DWR into the unusual position of preparing an EIR for a ‘proposed project’ that was 

already approved, implemented, and validated. The court acknowledges that this is a 

less-than-ideal way to conduct CEQA review. Still, the facts are what they are; the court 

cannot rewrite history. [¶] Under the unique circumstances of this case, DWR did not 

abuse its discretion in describing the Project as continuing to operate under the Monterey 

Amendment and Settlement Agreement.”

On appeal, Central Delta disagrees with the trial court’s reasoning. Central Delta 

argues the PCL court did not order or authorize DWR to violate CEQA by preparing a 

purely retrospective environmental impact report. According to Central Delta, nothing in 

the record can be read to require or permit DWR “to limit itself to preparing an improper, 

and ultimately meaningless retrospective analysis of an existing project’s environmental 

impacts.” 
24

However, CEQA provides a lead agency with discretion as to how it will manifest 

its decision on a project, “[n]o particular form of approval is required.” (Stockton 

Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 506.) CEQA 

Guidelines define “approval” as “the decision by a public agency which commits the 

agency to a definite course of action in regard to a project intended to be carried out by 

any person.” (Cal. Code Regs., tit. 14, § 15352, subd. (a).) 

Central Delta argues DWR’s decision to continue the SWP by relying on its prior

approval instead of making a new decision to approve the amendments was not a proper 

decision under CEQA.

As Central Delta states, CEQA requires that an environmental impact report be 

completed before a lead agency makes a decision on a project. However, under Public 

Resources Code section 21168.9, a trial court has the authority to leave earlier project 

approvals in place while the agency complies with CEQA. Here, the trial court found the 

PCL trial court allowed the contracts to remain in place while DWR prepared the 

Monterey Plus EIR. The trial court carefully considered Central Delta’s contentions and, 

after noting the unique procedural and factual circumstances surrounding the litigation, 

concluded DWR “correctly determined that it could carry out the project simply by 

deciding to continue operating under the Monterey Amendment.” We find the trial 

court’s reasoning persuasive and conclude DWR did not err in its project decision in May 

2010. 

B. Article 21, Subdivision (g)(1) and the No Project Alternative

Central Delta next contends the Monterey Plus EIR violates CEQA because the no

project alternative improperly failed to include an analysis of the implementation of 

article 21, subdivision (g)(1), which authorizes DWR to refuse to deliver surplus, which 

tends to encourage the establishment of a permanent economy. We affirm DWR’s 
25

decision as to what constitutes the no project condition if we find substantial evidence to 

support it. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 673.) 

Under CEQA, an environmental impact report “describes ways to minimize 

significant environmental effects, and suggests alternatives to the project, including the 

option of ‘no project.’ ” (Mountain Lion Foundation v. Fish & Game Com. (1997) 

16 Cal.4th 105, 113; Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(1) [“The specific 

alternative of ‘no project’ shall also be evaluated along with its impact”]; see also South 

County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330 

[“Alternative 1 was the ‘No Project’ alternative required by CEQA”]; California Oak

Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 274.) 

Under CEQA Guidelines, the no project analysis discusses the existing conditions at the 

time the notice of preparation is published as well as what would be reasonably expected 

to occur in the foreseeable future should the project not be approved. (Cal. Code Regs.,

tit. 14, § 15126.6, subd. (e)(2).) “The existing conditions, supplemented by a reasonable 

forecast, are characterized as the no project alternative.” (Planning & Conservation, 

supra, 83 Cal.App.4th at p. 911.) “[W]here the EIR is reviewing an existing operation or 

changes to that operation, the no project alternative is the existing operation.” (Center for 

Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214, 253.)

The trial court explained that the nature of the SWP as “representing a negotiated 

compromise between DWR and urban and agricultural contractors – necessarily limits 

the objectives of the Project. The overall objective of the Project is to resolve the 

underlying issues that led to the Monterey Amendment and implement the Settlement 

Agreement.”

The court then outlined the specific objectives of the Monterey Amendment: 

(1) restructure and clarify procedures for water allocation and delivery during times of 

shortage and surplus; (2) reduce financial pressures on agricultural contractors during 

drought; (3) adjust the rate structure of the SWP to more closely match revenue needs; 
26

(4) facilitate water management practices and water transfers to improve reliability and 

flexibility of SWP water supplies in conjunction with local supplies; and (5) resolve legal 

and institutional issues related to storage of SWP water in Kern County groundwater 

basins. Each objective corresponded to five elements of the Monterey Amendment:

(1) changing allocation procedures for Table A water and surplus water; (2) approval of 

the permanent transfer of 130,000 acre-feet and retirement of 45,000 acre-feet of Table A 

amounts; (3) transfer of the Kern Water Bank property; (4) water supply management 

practices; and (5) restructured rates.

This negotiated compromise resulted in interdependent objectives. Failing to 

achieve any objective ran the risk of upsetting the negotiated balance of interest reflected 

in the compromise. The trial court noted that the California Supreme Court in multiple 

decisions recognized that interdependent objectives may constrain the range of 

alternatives that can feasibly meet those objectives. The court determined: “Such is the 

case here. DWR appropriately screened out the various alternatives that would not meet 

most, if any, of the Project’s objectives, including those proposed by the PCL plaintiffs 

during the EIR Committee process.”

DWR analyzed four no project alternatives in the Monterey Plus EIR. To comply 

with our opinion in Planning & Conservation, two of the no project alternatives 

evaluated the environmental impacts of implementing article 18, subdivision (b). The 

environmental impact report also analyzed a no project alternative in which article 18, 

subdivision (b) would not be invoked and a no project alternative in which all of the 

actions completed under the Monterey Amendment would remain in place. The SWP

contractors believed the last alternative was the most realistic because it reflected the 

conditions existing at the time the notice of preparation was published and did not 

unwind the actions the SWP contractors believed could not be undone. The trial court 

found this basic approach to the no project analysis to be reasonable under the 

circumstances.
27

Central Delta criticized no project alternatives considering article 18, subdivision 

(b) for failing to analyze that article in combination with article 21. The trial court 

rejected this criticism: “This is not strictly true. Both alternatives analyzed the 

implementation of Articles 18 and 21 in tandem. DWR simply did not interpret or apply 

Article 21 in the same manner as Petitioners.”

The Monterey Plus EIR concluded that if article 18 were invoked, it would not 

have significant impact on the amount of water available to the SWP in any given year. 

The amount of SWP water available is not generally controlled by the Monterey 

Amendment, but by a combination of the capacity of DWR’s facilities, the hydrologic 

availability of water, and environmental standards. The court noted these limitations 

exist independently of the SWP.

The Monterey Plus EIR also concluded that if DWR invoked article 18, 

subdivision (b) to lower the Table A amounts of water, DWR would use article 21 to 

continue to try to deliver as much water requested by SWP contractors as possible. 

Invoking article 18, subdivision (b) would not reduce SWP deliveries, because any 

decrease in Table A allocations would be counterbalanced by a commensurate increase in 

article 21 allocations.

In the trial court, Central Delta argued the Monterey Plus EIR relied on two 

incorrect assumptions: that reductions to maximum Table A amounts do not affect 

demand and that under article 21, subdivision (g)(1) water could be used to make up the 

difference. The court dismissed the first contention, but found the Monterey Plus EIR’s 

treatment of article 21 water presented “a more complicated issue.” 

As the court observed, if article 21, subdivision (g)(1) could be construed in a 

manner that would result in significant environmental consequences, its elimination 

should be considered and discussed in the environmental impact report as a no project 

alternative. Since such an interpretation was plausible, the report should have 

incorporated the elimination of article 21, subdivision (g)(1) into a no project alternative. 
28

The failure to include article 21, subdivision (g)(1) as a no project alternative, however, 

was reversible only if DWR abused its discretion by failing to include relevant 

information that precluded informed decisionmaking and informed public participation.

The trial court found the omission of an article 21 no project alternative did not 

preclude informed decisionmaking or informed public participation, because, in response 

to comments, DWR developed an analysis of the effects of the SWP operating with 

article 18, subdivision (b) invoked and limited or no article 21 water delivered to SWP

contractors. The analysis provided both the public and the decisionmakers additional 

information on the effects of not delivering water to SWP contractors that would 

otherwise be available under article 21.

The court concluded: “The analysis shows that under such a scenario, average 

annual SWP contractor deliveries would be reduced by about 1.2 [million acre-feet], or 

about 40%, with potentially significant (adverse and beneficial) impacts. The EIR’s 

analysis of this scenario is not perfect, but it is sufficient to make an informed decision on 

the Project, particularly where, as here, all of the parties to the SWP contracts believe 

such interpretation is not reasonable or enforceable.”

Central Delta disputes the trial court’s conclusion, arguing the court erred in 

finding DWR’s analysis of article 21, subdivision (g) did not preclude informed 

decisionmaking. We disagree.

As we noted in Planning & Conservation, “Our task is extraordinarily limited and 

our focus is narrow. Did the EIR adequately describe the existing conditions and offer a 

plausible vision of the foreseeable future?” (Planning & Conservation, supra, 

83 Cal.App.4th at p. 911.) Central Delta argues our decision in Planning & Conservation

regarding article 18, subdivision (b) applies just as strongly to DWR’s treatment of article 

21, subdivision (g)(1) as a no project alternative. (Planning & Conservation, at pp. 909-

917.) However, the environmental impact report at issue in Planning & Conservation did 

not analyze article 18, but instead ignored the provision. (Planning & Conservation, at 
29

p. 913.) Here, two of the no project alternatives discussed article 21 in relation to article 

18, subdivision (b).

Moreover, as the trial court found, DWR included in the final version of the 

Monterey Plus EIR an analysis of the effects of operating the SWP with article 18, 

subdivision (b) invoked and with limited or no article 21 surplus water delivered to 

contractors. The court concluded that “[t]his analysis provides additional information to 

the public and to decision-makers on the effects of not delivering water to the SWP 

contractors that would otherwise be available under Article 21.”

As the trial court found, the Monterey Plus EIR’s no project analysis and 

discussion of article 21, subdivision (g)(1) allowed for informed decisionmaking and 

public participation. We find no error.

C. Reverse Validation Claims 

Central Delta challenges the trial court’s determination that the validation claims 

were time-barred.

The validation statute codifies a process by which a public agency knows within a 

short time period that a matter is valid and immune from subsequent attack. (Code Civ. 

Proc., §§ 860-870.5.) The parties and the trial court agreed that the subject contracts 

were subject to validation.

A matter may be validated if a public agency files an action to obtain a judicial 

determination of the matter’s validity. (Code Civ. Proc., § 860.) A member of the public 

can file a reverse validation challenge seeking a judicial declaration that a public 

agency’s action is invalid. (Code Civ. Proc., § 863.) In both cases, the determination of 

a validation or reverse validation binds all persons because these actions are in rem. 

(Code Civ. Proc., §§ 860, 863, 869; Friedland v. City of Long Beach (1998) 

62 Cal.App.4th 835, 843.) The immunity from later challenges includes all types of 

challenges, including those based on common law, statutory, or constitutional challenges. 
30

(California Commerce Casino, Inc. v. Schwarzenegger (2007) 146 Cal.App.4th 1406, 

1420.) 

Under Code of Civil Procedure section 860 et seq., an action to challenge the 

validity of a contract must be commenced within 60 days after the contract comes into 

existence. Contracts are deemed to come into existence upon their authorization. 

Contracts are “deemed authorized as of the date of adoption by the governing body of the 

public agency of a resolution or ordinance approving the contract and authorizing its 

execution.” (Code Civ. Proc., § 864.) If no timely validation action is filed, the matter is 

conclusively validated. (Code Civ. Proc., §§ 860, 863, 869.) 

Here, the trial court considered the applicable statutes and found: “In this case the 

Subject Contracts are ‘contracts’ that were ‘authorized’ by the DWR in 1995 with its 

approval of the Monterey Agreement, the Monterey Amendment and the KFE Transfer 

Agreement. In 1996, the PCL Plaintiffs filed a reverse validation lawsuit challenging the 

validity of those contracts. The Court of Appeal reversed the trial court’s dismissal of the 

validation causes of action and remanded the matter to the trial court. The reverse 

validation cause of action subsequently was voluntarily dismissed by the PCL Plaintiffs 

pursuant to the Settlement Agreement. Thus, there can be no dispute that the Monterey 

Agreement, the Monterey Amendment, and the KFE Transfer Agreement were deemed to 

be in ‘existence,’ both by the parties to the PCL Litigation and the Court of Appeal, as 

early as 1996. [¶] In addition, all of the Subject Contracts, including all 27 of the 

Monterey Amendments, were fully executed between 1995 and 1999. This further 

supports the conclusion that the contracts were in ‘existence’ many years before the 

Plaintiffs filed this action.”

As in the trial court, Central Delta concedes the contracts were validated, but 

presents a novel, convoluted argument that the complaint was timely filed. Central Delta 

argues the contracts were taken out of existence in 2003 as part of the settlement 

agreement. According to Central Delta, as part of the settlement agreement, the trial 
31

court “necessarily” voided the 1995 approvals of the Monterey Amendment project, 

including DWR’s authorization of the contracts, and required a new decision on a new 

project based on a new environmental impact report. Consequently, according to Central 

Delta, the contracts were not finally approved and authorized until DWR issued its new 

notice of determination on May 4, 2010.

The trial court disagreed. The settlement agreement resolved the disputes between 

the PCL parties concerning the Monterey Agreement EIR. The parties came together and 

drafted the form of the 2003 writ and 2003 order for the court to enter. The trial court 

found that although DWR agreed to prepare a new environmental impact report and make 

a new CEQA determination, “nowhere in the Settlement Agreement did the parties agree 

to invalidate the Subject Contracts.”

As the trial court noted, the settlement agreement explicitly required DWR to set 

aside its certification of the Monterey Agreement EIR, but did not mention setting aside 

the contracts. We agree with the trial court’s conclusion that, “[i]n the absence of any 

language in the Settlement Agreement, Interim Implementation Order or the PCL writ 

requiring the DWR to set aside its approval of the Subject Contracts, it simply cannot be 

inferred that the parties or the trial court intended this result.” We also agree with the 

trial court that, for the same reasons, DWR’s issuance of the new environmental impact 

report and the issuance of the notice of determination did not cause the contracts to go out 

of existence and create a new contract subject to validation.

In addition, the trial court noted the PCL plaintiffs agreed to dismiss their reverse 

validation challenge to the Monterey Amendment, subject to a tolling agreement. As the 

trial court observed, “[t]his is clear evidence that the parties intended to ‘validate’ those 

Contracts as part of the Settlement Agreement.”

The trial court also found extrinsic evidence to support its conclusion that the 

contract approvals were not invalidated. The parties to the settlement agreement issued a 

joint statement listing the “ ‘key components’ of the agreement. If invalidation of the 
32

Monterey Amendment had been agreed to, one would reasonably expect it to be included 

as a ‘key component’ of the agreement. It was not. In contrast, the Joint Statement 

explicitly stated that the Kern Water Bank would ‘remain in local ownership’ and

continue to be operated ‘as it has,’ subject to additional restrictions on use.”

The trial court also noted that the PCL defendants informed the mediator before 

executing the settlement agreement that they would “never” agree to a writ that required 

DWR to set aside project approvals. The trial court concluded: “If the writ were 

intended to vacate all project approvals, the PCL Plaintiffs and the trial court certainly 

knew how to include such language in the writ. Because they did not, the Court is bound 

to conclude that there was no intent to vacate the project approvals.”

As in the trial court, Central Delta argues that even if the PCL parties did not 

intend the settlement agreement to take the contracts out of existence, the plain meaning 

of the 2003 order and 2003 writ did so. Central Delta cites the 2003 order’s language 

ordering that “[i]n the interim, until DWR files its return in compliance with the [2003 

writ] and this Court orders discharge of the [2003 writ], the administration and operation

of the State Water Project and Kern Water Bank Lands shall be conducted pursuant to 

[the contracts].”

Central Delta argues such “interim” authorization would have been unnecessary if 

the parties had agreed to fully validate the contracts. Therefore, the use of the term 

“ ‘interim’ ” shows the parties intended to set aside the original approvals of the projects 

and require DWR to make a new determination.

The trial court noted Central Delta was confusing the CEQA project with the 

underlying agreements. In addition, the court found “the more reasonable interpretation 

of the term ‘interim’ is that the parties needed to account for the fact that, under the 

Settlement Agreement, the PCL Plaintiffs retained a conditional right to re-file their 

challenge to the validity of the Subject Contracts. The PCL Plaintiffs agreed to dismiss 

their validation causes of action ‘without prejudice,’ and agreed not to re-file only so long 
33

as certain conditions were met. The parties explicitly agreed to toll the statute of 

limitations relating to the validation cause of action for the PCL Plaintiffs until forty-five 

days after the filing of the Notice of Determination on the new EIR.” The court 

concluded that the “inclusion of the tolling agreement” supported its interpretation “since 

it shows the parties intended the contracts be ‘validated,’ subject only to the possibility 

that the PCL Plaintiffs might re-file their validation action if certain agreed-upon 

conditions were not met.” We agree with the trial court’s analysis.

For the first time on appeal, Central Delta argues DWR’s 2003 amendment to the 

long-term contracts, the Attachment A Amendments, reauthorized the Monterey

Amendment and that reauthorization took place on May 5, 2010. In the settlement 

agreement, DWR and SWP contractors agreed to amend the contracts to redefine several 

terms, including changing “ ‘annual entitlement’ ” to “ ‘Annual Table A Amount.’ ” The 

changes were “solely for clarification purposes, and are not intended to nor do they in any 

way change the rights, obligations or limitations on liability of the State or the District.” 

The Attachment A Amendments were to be signed within 60 days of the settlement 

agreement’s effective date and therefore were authorized when DWR and SWP

contractors signed them in 2003. The amendments would be effective on an interim basis 

upon execution and would become final at the conclusion of the litigation surrounding 

the validity of the Monterey Agreement.

Central Delta contends DWR’s adoption of the Attachment A Amendments in 

2003 operated as a reauthorization, on an interim basis, of the Monterey Amendment. 

The reauthorization of a contract makes the entire contract, including the amended 

portions, subject to a validation challenge. In support, Central Delta relies on Barratt 

American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685 (Barratt).

In Barratt, the California Supreme Court considered a city’s annual adoption of a 

development fee ordinance under Government Code section 66022. Under the statute, a 

city can charge development fees only as necessary to cover the cost of the service 
34

provided. (Gov. Code, § 66014, subd. (a); Barratt, supra, 37 Cal.4th at p. 691.) If the 

fees charged developers in one year create excess revenue, the city must lower fees the 

following year to make up for the previous overcharge. (Gov. Code, § 66016, subd. (a); 

Barratt, at p. 703.) Government Code section 66022 allows validation challenges to “an 

ordinance, resolution, or motion adopting a new fee or service charge, or modifying or 

amending an existing fee or service charge.” (Gov. Code, §66022, subd. (a).) 

The court in Barratt concluded that the city’s fee ordinance requires an annual 

accounting and an independent decision each year that the prior year’s fees did not result 

in a surplus and that the present year’s fee schedule is set at a level designed to cover 

only the cost of service. Even if the city readopts the previous year’s fee schedule 

without change, the court found the city would be making a new determination, based on 

new data that the previous year’s fees did not result in a surplus. Under these facts, each 

year the city’s fee ordinance decision is subject to challenge under the validation statute. 

(Barratt, supra, 37 Cal.4th at pp. 703-704.) 

Central Delta contends that “just as the reenactment rule of statutory interpretation 

states that the enactment of an amendment to a statute reenacts the entire statute, so must 

the authorization of a contract amendment reauthorize the entire contract; the contract 

must be ‘deemed to have been acted on as a whole’ at the date of the authorization of the 

amendment. ([Barratt], supra, 37 Cal.4th at [p.] 704.)” However, Central Delta provides 

no support for the sweeping proposition that an analysis of statutory interpretation applies 

with equal force to contracts. 

Here, DWR’s decision in May 2010 to continue with the Attachment A 

Amendments was not a reauthorization of the Monterey Amendment, which had been 

executed years earlier. Although some of the settlement agreement obligations do not 

become final until the Monterey Amendment litigation is concluded, this does not 

support a finding that the Attachment A Amendments constituted a reauthorization of the 

Monterey Amendment. Neither the settlement agreement nor the Attachment A 
35

Amendments provide any support for the argument that the Attachment A Amendments 

reauthorize the Monterey Amendment. 

D. Issuance of Limited Writ

Finally, Central Delta asserts the trial court abused its discretion by issuing a 

limited CEQA remedy. The trial court found in favor of Central Delta’s claim that 

DWR’s discussion of the potential impacts associated with the future use and operation 

of the Kern Water Bank was inadequate. After briefing and a hearing on the appropriate 

CEQA remedy for the violation, the trial court issued findings and a writ of mandate.

The trial court found that the CEQA error was limited to the potential impacts 

from the Kern Water Bank operations and determined that portion of the environmental 

impact report could be severed from the rest of the SWP. The court ordered DWR to 

revise the Monterey Plus EIR to correct the deficiency and to “make a new determination 

regarding whether to continue the use and operation of the Kern Water Bank by [Kern 

Water Bank Authority].” In addition, the court allowed DWR to continue operating the 

SWP pursuant to the contracts and allowed the authority to continue operating the Kern 

Water Bank while DWR revised the Monterey Plus EIR.

Faced with Central Delta’s objections, the trial court noted Central Delta’s broad 

challenges to the sufficiency of the Monterey Plus EIR and that the court had rejected all 

but one of these arguments. Therefore, “[t]he court has since concluded that it is 

appropriate for the court to limit its remedy to the Kern Water Bank portion of the 

Project. As a result, the only ‘approvals’ reasonably at issue here are the approvals to 

continue using and operating the Kern Water Bank. [¶] Invalidating the Project 

approvals is unnecessary and would throw the entire SWP into complete disarray, smack 

in the middle of one of the most severe droughts on record. The circumstances of this 

case do not warrant that degree of judicial intervention, especially where, as here, the 

SWP has been operating under such approvals for years while DWR prepared the EIR.”
36

CEQA, through the Public Resources Code, allows a trial court to leave project 

approvals in place. After a court finds a CEQA error, the court has three options: void a 

decision in whole or part; suspend certain project activities; or take other specified 

actions. (Pub. Resources Code, § 21168.9, subd. (a).) CEQA does not require the court, 

on finding CEQA error, to void all project approvals. The plain language of section 

21168.9 grants the trial court the discretion to leave project approvals in place. (Preserve 

Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 286-290.) Here, the trial court 

invoked Public Resources Code section 21168.9 in its ruling.

Central Delta argues the trial court did not have discretion to leave project 

approvals in place after finding the Monterey Plus EIR was deficient in its analysis of the 

transfer, use, and operation of the Kern Water Bank. According to Central Delta, a writ 

must void any approvals that commit an agency to a definite course of action that has not 

been subject to proper environmental review, citing Save Tara v. City of West Hollywood 

(2008) 45 Cal.4th 116 (Save Tara).

However, in Save Tara the lead agency approved an agreement allowing private 

development without preparing an environmental impact report. The Supreme Court held 

a report was required and under these circumstances ordered the underlying project 

approvals voided. (Save Tara, supra, 45 Cal.4th at pp. 121, 143.) The court did not 

consider the trial court’s discretion to leave project approvals in place after an 

environmental impact report is prepared and the court finds some defects in the report. 

Here, the trial court exercised its discretion under Public Resources Code section 21168.9 

and we find no abuse of that discretion.

E. Kern Water Bank Parties’ Cross-Appeal

The Kern Water Bank parties (KWB parties) countered Central Delta’s petition 

and complaint with a motion for judgment on the pleadings, arguing Central Delta’s 
37

challenge to the Monterey Plus EIR was barred because the trial court’s order discharging 

the 2003 writ was res judicata to their allegations.

The KWB parties’ motion was filed in June 2011. The court denied the motion. 

During the trial on the CEQA causes of action, the KWB parties renewed their claim that 

Central Delta’s first CEQA cause of action was barred by res judicata. The trial court 

again rejected the argument. Following entry of judgment, the KWB parties filed a 

notice of cross-appeal.

Whether the doctrine of res judicata applies to bar a cause of action is a question 

of law we review de novo. (City of Oakland v. Oakland Police & Fire Retirement System 

(2014) 224 Cal.App.4th 210, 228.) Res judicata, or claim preclusion, precludes parties or 

their privies from relitigating a cause of action finally resolved in a prior proceeding. 

Collateral estoppel precludes relitigation of issues argued and decided in a prior 

proceeding. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.)

Res judicata applies when a party can demonstrate: (1) the decision in the prior 

proceeding is final and on the merits; (2) the present proceeding is on the same cause of 

action as the prior proceeding; and (3) the parties in the present proceeding or parties in 

privity with them were parties to the prior proceeding. If a party satisfies these 

requirements, claim preclusion bars not only issues that were actually litigated, but also 

issues that could have been litigated. (Federation of Hillside & Canyon Assns. v. City of 

Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) 

As the trial court noted, Central Delta did not dispute that the August 30, 2010 

order discharging the writ of mandate is a decision both final and on the merits. 

However, both on appeal and in the trial court, Central Delta argues that the order did not 

determine the merits of the Monterey Plus EIR’s compliance with CEQA. Because the 

Monterey Agreement EIR and the Monterey Plus EIR are factually distinct attempts to 

satisfy CEQA, Central Delta contends its challenge to the latter involves a different cause 

of action.
38

The KWB parties argue the PCL lawsuit alleged DWR had “failed to act and will 

continue to fail to act to operate and manage the California Water Project . . . in violation 

of CEQA.” The 2003 writ required DWR to prepare and certify an environmental impact 

report that complies with CEQA. The trial court issued a final judgment that the 

Monterey Plus EIR, prepared and certified by DWR, addressed the primary right injury 

identified in the 2003 writ and, with the concurrence of the PCL plaintiffs, discharged the 

2003 writ. The judgment states: “The Court finds that Defendants . . . have fully 

complied with the terms of the Peremptory Writ of Mandate issued on May 20, 2003 in 

the above-entitled case.” Therefore, the KWB Parties contend, “the judgment fully and 

finally adjudicated the ‘primary right’ here – that the 2010 EIR comply with CEQA.”

However, the trial court agreed with Central Delta, as do we, that the order 

discharging the writ in the PCL litigation does not bar Central Delta’s CEQA cause of 

action.

Courts employ the primary right theory in defining a cause of action for the 

purposes of res judicata. Under the primary right theory, a cause of action consists of a 

primary right possessed by the plaintiff, a corresponding primary duty owed by the 

defendant, and a breach by the defendant of the primary right and duty. Each invasion of 

a primary right gives rise to only one cause of action, even if multiple theories of 

recovery are asserted. As a result, two proceedings are based on the same cause of action 

if they are based on the same primary right. (Citizens for Open Access etc. Tide, Inc. v. 

Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1067 (Citizens for Open Access).)

A plaintiff’s primary right is the right to be free from a particular injury, regardless 

of the legal theory on which liability for the injury is based. The scope of the primary 

right depends on how the injury is defined. An injury is defined to some degree by 

reference to the set of facts from which the injury arose. (Silverado Modjeska Recreation 

& Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 297-298 (Silverado).) 
39

In a CEQA proceeding, a plaintiff’s right to ensure the lead agency’s compliance 

with CEQA’s substantive and procedural requirements with respect to a particular 

environmental impact is a primary right. (Silverado, supra, 197 Cal.App.4th at p. 298.) 

Here, the trial court found: “It is well settled that the court which issues a writ of 

mandate retains jurisdiction to enforce the writ until it is fully satisfied. If, after an 

agency has filed its return to the writ, the petitioner is not satisfied that the court’s 

mandate has been carried out, the petitioner may challenge the validity of that claim by 

filing a new or supplemental petition, which may (and likely will) involve new and 

different causes of action. It is certainly conceivable, therefore, that a judgment 

adjudicating such a petition may bar subsequent challenges asserting similar claims. 

[Citation.] [¶] But that is not this case. The PCL Plaintiffs did not file a new or 

supplemental petition challenging DWR’s return to the writ. Neither did they object to 

the return. Rather, they filed a ‘Consent to Entry of Order Discharging the Writ.’ As a 

result, the only cause of action at issue in the PCL Litigation was that framed by the PCL 

Plaintiffs’ complaint. [Citations.] Because the underlying cause of action in this case is 

different from the cause of action litigated in the PCL Litigation, the underlying cause of 

action is not barred by res judicata. [Fn. omitted.]”

The trial court relied on Planning & Conservation League v. Castaic Lake Water 

Agency (2009) 180 Cal.App.4th 210, 228 (Castaic Lake). In Castaic Lake, two 

proceedings involved “distinct episodes of purported noncompliance regarding ‘the same 

general subject matter’ [citation], namely, the public’s statutory right to an adequate EIR

. . . .” (Id. at p. 228.) Here, Central Delta challenges deficiencies in the Monterey Plus

EIR, which the PCL plaintiffs could not have challenged in their 1995 petition for writ of 

mandate. After ruling for the PCL plaintiffs, the trial court issued a writ of mandate 

ordering decertification of the Monterey Agreement EIR and preparation of a new 

environmental impact report by a different agency. We agree with the trial court that the 
40

PCL litigation and the current litigation address different reports and “are factually 

distinct attempts to satisfy CEQA’s mandates.”

However, this did not end the trial court’s analysis. The court also considered 

whether Central Delta was collaterally estopped from pursuing the issues raised on 

appeal.

Collateral estoppel applies when: (1) the issue sought to be precluded is identical 

to that decided in a prior proceeding; (2) the issue was actually litigated and necessarily 

decided in the prior proceeding; (3) the decision in the prior proceeding is final and on 

the merits; and (4) the party against whom issue preclusion is asserted is the same or in 

privity with the party in the prior proceeding. (Hernandez v. City of Pomona (2009) 

46 Cal.4th 501, 511.) 

The KWB parties argue the order discharging the writ was a complete adjudication 

of the issues Central Delta sought to litigate. “According to Movants, the order 

represents an adjudication that DWR has fully complied with CEQA, not just with 

respect to the issues litigated in the prior proceeding, but also in respect to any new 

challenges that could be raised in respect to the 2010 EIR.”

The trial court found some support for KWB parties’ argument, noting that one 

aim of the settlement agreement was to establish a procedure to litigate and decide all 

alleged deficiencies of the Monterey Plus EIR as part of filing the return to the writ. In 

deciding the motion to discharge the writ, the court adjudicated DWR’s compliance with 

the writ’s directives. Since the writ directed DWR to comply with CEQA, the court’s 

ruling that DWR complied with the writ “arguably reflects, at least to some extent, a 

determination of the lead agency’s compliance with CEQA in preparing and certifying an 

EIR for the project.”

However, collateral estoppel requires that the same precise issue was actually 

litigated and determined in the first action. As the trial court noted: “Here, the trial court 

unequivocally decided that DWR has complied with CEQA with respect to the issues 
41

alleged in the prior action, but it is unclear whether the trial court necessarily decided that 

the 2010 EIR fully complies with CEQA in all other respects.” Although the court found 

it a close question, the court concluded collateral estoppel does not apply because the 

KWB parties failed to establish the issues were actually litigated and decided in the prior 

proceeding. We agree with the trial court’s analysis.

The court also found the KWB parties could not establish privity between the 

parties. Privity for collateral estoppel and res judicata purposes refers to a relationship 

between the party to be estopped and the unsuccessful party in the prior litigation 

sufficiently close to justify application of the doctrine of res judicata. The determination 

of privity depends on the fairness of binding one party with the result from an earlier 

proceeding in which it did not participate. Such a determination requires a close 

examination of the circumstances. The nonparty must have had an identity or community 

of interest with, and adequate representation by, the party in the first action, so that the 

nonparty should have expected to be bound by the prior adjudication. (Citizens for Open 

Access, supra, 60 Cal.App.4th at pp. 1069-1070.)

In CEQA cases, litigation of CEQA claims against a defendant on behalf of the 

public is generally sufficient to support a finding of common interest to establish privity. 

(Silverado, supra, 197 Cal.App.4th at p. 299.) Here, both the PCL plaintiffs and Central 

Delta pursued their CEQA challenges on behalf of the public. As the trial court 

acknowledged, even though they asserted different causes of action, both litigations 

sought relief on behalf of the public impacted by the environmental concerns. This was 

sufficient to show a common interest in the enforcement of CEQA.

Since Central Delta shared a community of interest with the PCL plaintiffs, the 

trial court next considered whether their interests were adequately represented in the prior 

action. The question of whether a party was adequately represented turns on whether the 

party to the earlier action had adequate opportunity and incentive to litigate the common 

issues. If the party to the earlier action had no opportunity or incentive to assert the 
42

common interest, we cannot infer adequate representation and no privity exists. 

Conversely, if the party had the opportunity to litigate the same issues in the earlier 

proceeding, and was equally motivated to reach a successful conclusion, we may infer 

adequate representation. In addition, we may also consider the manner in which the party 

participated in the earlier action. (Citizens for Open Access, supra, 60 Cal.App.4th at 

pp. 1072-1073.)

The trial court noted courts have come to different conclusions in assessing a 

party’s participation in the earlier action. In some cases courts found privity established 

because the prior litigant actively participated in the litigation and zealously asserted the 

common interest. (Citizens for Open Access, supra, 60 Cal.App.4th at pp. 1072-1073; 

Mooney v. Caspari (2006) 138 Cal.App.4th 704, 719-720.) However, in Castaic Lake, 

supra, 180 Cal.App.4th 210, the court overruled a demurrer based on res judicata because 

the plaintiff in an earlier action expressly relinquished its role and dismissed its case due 

to a lack of funds. (Id. at pp. 231-232.) The trial court found Castaic Lake bore 

similarities to the facts in the present case.

In Castaic Lake, the plaintiff had successfully challenged an environmental impact 

report and then voluntarily dismissed its action with prejudice after the agency filed a 

return to the writ and a new report. The plaintiff asserted the new report was also

defective but acknowledged it lacked the funds to continue the challenge. Subsequent 

plaintiffs filed challenges to the new environmental impact report and the agency filed a 

demurrer arguing the challenges were barred by res judicata. The trial court overruled 

the demurrer, finding the plaintiffs were not barred by res judicata. The appellate court

agreed that the statements made by the original plaintiff in dismissing the prior action 

revealed an “ ‘abdication of the role of public agent’ ” and an “abandonment” of any 

intention to represent the interests of the general public in the litigation. (Castaic Lake, 

supra, 180 Cal.App.4th at p. 231.) In view of these statements, the court said, “we 

cannot infer that the parties are in privity.” (Ibid.)
43

The trial court here noted the PCL plaintiffs also brought their challenge to the 

1995 Monterey Agreement EIR on behalf of the public “but then expressly disavowed 

and abandoned their role as public agent in the Consent to Discharge.”

Central Delta argued the PCL plaintiffs did not adequately represent the public 

interest in the order discharging the writ. Central Delta cited the terms of the settlement 

agreement, which prevented PCL plaintiffs from challenging the Monterey Plus EIR 

without first submitting to a long, complicated mediation process. The KWB parties 

countered that the PCL plaintiffs participation in the settlement agreement and in the 

lengthy process for preparation of the Monterey Plus EIR confirms that the PCL plaintiffs 

continued to represent public interests throughout the PCL litigation.

The trial court found the KWB parties’ argument presented a factual question 

which could not be resolved by a motion for judgment on the pleadings. “Since the PCL 

Plaintiffs’ statements in the Consent to Discharge express an intent to relinquish their role 

as a public representative, the Court cannot for purposes of this motion for judgment on 

the pleadings infer that the parties are in privity.” Accordingly, the court denied the 

motion. 

On appeal, the KWB parties argue the privity requirement is easily satisfied 

because of the public interest nature of the CEQA claims prosecuted by the PCL 

plaintiffs. According to the KWB parties: “The PCL Plaintiffs and the Central Delta 

Appellants here clearly have an identity of interest regarding CEQA enforcement 

sufficient to establish privity. Both consist of nonprofit environmental organizations and 

other public entities alleging that their primary interest is to ensure that DWR complied 

with CEQA regarding the Monterey Amendments. Because the Central Delta Appellants 

here and the PCL Plaintiffs pursued claims on behalf of the public, that fact alone is 

sufficient to show a ‘common interest’ in the enforcement of CEQA for purposes of a 

privity determination.”
44

The KWB parties also argue the present situation “differs dramatically” from that 

in Castaic Lake. In Castaic Lake the previous plaintiff dismissed its action and stated it 

could no longer act in a representative capacity. In contrast, the KWB parties contend, 

the PCL plaintiffs never abandoned their representation of the public interest and 

obtained the settlement agreement, which bound DWR to review and dispute resolution 

for preparation of the 2010 Monterey Plus EIR. “Only at the conclusion of this lengthy

process did the PCL Plaintiffs consent to DWR’s return to the 2003 Writ.”

However, as the trial court found, the PCL plaintiffs expressly disavowed and 

abandoned their role as public agent in the consent to discharge. The PCL plaintiffs 

stated they “disavow[ed] any intent to act as representative of any others with respect to 

DWR’s certification of the 2010 Monterey Plus EIR approval of the Monterey Plus 

project.” We examine the record for “even the hint of any abdication of the role of public 

agent by the parties to the prior litigation” when determining whether privity exists 

between the parties. (Citizens for Open Access, supra, 60 Cal.App.4th at p. 1072.) Based 

on the record in the PCL litigation, we cannot find privity existed between the parties.6

II. Biological Diversity’s Appeal

Biological Diversity appeals only from trial court’s order denying its motion for 

attorney fees as untimely.

6

 Additionally, the KWB parties argue Biological Diversity did not have standing to 

maintain a CEQA cause of action because it failed to timely object to DWR’s action on 

the Monterey Plus project. The trial court found Biological Diversity timely objected to 

the SWP prior to the close of the public hearing on the project. Biological Diversity 

submitted its comments before SWP contractors provided their final comments on the 

environmental impact report, before the environmental impact report committee 

completed its process, and before DWR completed its review of the final environmental 

impact report. We agree with the trial court’s finding that Biological Diversity did not 

lack standing.
45

The trial court’s order is presumed correct and Biological Diversity bears the 

burden of showing error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) We 

conduct a de novo review of a trial court’s interpretation of the California Rules of Court. 

(Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81.) 

Biological Diversity seeks attorney fees pursuant to Code of Civil Procedure 

section 1021.5, which provides an exception to the rule that each party is responsible for 

its own attorney fees. A court may award fees under this statute if: (1) the action has 

resulted in the enforcement of an important public right affecting the public interest; (2) a 

significant benefit has been conferred on the general public or a large class of persons; 

and (3) the necessity and financial burden of private enforcement are such as to make the 

award appropriate. (Azure Ltd. v. I-Flow Corp. (2012) 207 Cal.App.4th 60, 66-67.) 

Biological Diversity argues it was entitled to an award of reasonable attorney fees 

because it was a successful party that enforced an important public right affecting the 

public interest, conferred a significant public benefit, and the costs of its legal victory 

transcended any personal interest in the lawsuit. DWR counters the motion was untimely 

because it was not filed within 30 days of service of the notice of entry of judgment as 

required by Code of Civil Procedure section 870, subdivision (b).

The trial court found Biological Diversity’s motion for attorney fees untimely. 

We agree.

The California Rules of Court provide that a motion for attorney fees “must be 

served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 

in an unlimited civil case . . . .” (Cal. Rules of Court, rule 3.1702(b)(1).) Under rule 

8.104, unless a statute or rule provides otherwise, the deadline for filing a notice of 

appeal ordinarily is 60 days after service of notice of entry of judgment, or 180 days after 

entry of judgment, whichever is first. (Cal. Rules of Court, rule 8.104(a).) 

In a validation action, Code of Civil Procedure section 870, subdivision (b) 

provides: “Notwithstanding any other provision of law . . . no appeal shall be allowed 
46

from any judgment entered into pursuant to this chapter unless a notice of appeal is filed 

within 30 days after the notice of entry of judgment . . . .” The 30-day deadline to file 

notice of appeal of judgment of validation judgments is broadly construed. (Planning &

Conservation League v. Department of Water Resources (1998) 17 Cal.4th 264, 273-

274.) 

Here, as the trial court noted, Biological Diversity’s complaint included a reverse 

validation cause of action, i.e., the second cause of action was brought under the 

validation statutes. Biological Diversity requested that the trial court find the contracts at 

issue invalid. The trial court found, as Biological Diversity stipulated, that the Monterey 

Amendment was a contract subject to the validation statutes. The trial court’s judgment 

expressly stated that it resolved a claim brought under the validation statutes. On the 

validation claim, the court entered judgment in favor of DWR and real parties in interest.

Notice of entry of judgment was served on December 1, 2014. Under Code of 

Civil Procedure section 870, the last day for Biological Diversity to file a notice of appeal 

from judgment was December 31, 2014. (Code Civ. Proc., § 870, subd. (b); Cal. Rules of 

Court, rule 8.104(a); California Commerce Casino, supra, 146 Cal.App.4th at p. 1419.) 

Under rule 3.1702(b)(1) of the California Rules of Court, the same deadline applied to an 

attorney fees motion. Biological Diversity filed a notice of appeal on December 30, 

2014, but did not file a motion for attorney fees until April 1, 2015.

In the trial court, as on appeal, Biological Diversity argued it sought only attorney 

fees on its successful CEQA cause of action, not the reverse validation claim. Therefore, 

the relevant deadline should be the time to file a notice of appeal on the CEQA cause of 

action, the standard 60-day limit under California Rules of Court, rule 8.104.

The court disagreed, finding: “In the court’s view, there was a single deadline to 

appeal the Judgment, not multiple deadlines tied to the various causes of action decided 

in the Judgment. [¶] Here, the deadline to file a notice of appeal was shortened because 

the Judgment included a validation cause of action. Petitioners apparently were aware of 
47

this since they filed their notice of appeal within the shortened deadline. Petitioners did 

not file their motion for attorney fees until 90 days later. Thus, the motion is untimely.”

We agree with the trial court’s assessment. Biological Diversity attempts to divide 

the trial court’s judgment into separate causes of action, each with a different due date for 

a notice of appeal and for a motion for attorney fees. However, an appellant appeals from 

a final judgment, not each cause of action. (Laraway v. Pasadena Unified School Dist. 

(2002) 98 Cal.App.4th 579, 583.) “[T]he one final judgment rule does not permit parties 

to ‘separate [their] causes of action into two components for separate appellate treatment 

at different points in time.’ ” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1107.) 

We find Biological Diversity’s citations to case authority unpersuasive. In Santa 

Clarita Organization for Planning & the Environment v. Abercrombie (2015) 

240 Cal.App.4th 300, the appellate court found that although the plaintiffs characterized 

their complaint as a reverse validation action, the facts did not support the claim. 

Therefore, the validation statutes’ shorter time limit for filing a notice of appeal did not 

apply. Abercrombie states that if there is an issue as to whether an action is subject to the 

validation statutes, the court must ascertain whether the underlying facts constitute a 

validation proceeding, thereby invoking the 30-day rule. (Id. at p. 308.) Similarly, in 

Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, the court also considered whether the 

underlying complaint raised a claim under the validation statute. (Id. at pp. 19, 27.)

Biological Diversity argues that “[t]he trial court had a duty to analyze the 

underlying claims to determine the appropriate deadline for the attorney’s fee motion and 

it failed that duty.” However, neither Abercrombie nor Katz support this broad claim. 

Here, the trial court was aware Biological Diversity was seeking attorney fees for its 

success on the CEQA cause of action, but found the validation cause of action in the 

judgment invoked the shorter deadline for filing both the appeal, which was filed on time, 

and for filing a motion for attorney fees, which was not. We find no error.
48

III. Food Safety’s Appeal

Food Safety challenges DWR’s Revised EIR, arguing: (1) the trial court lacked 

jurisdiction; (2) the Revised EIR inadequately addressed the Kern Water Bank’s 

contribution to crop conversion; (3) the Revised EIR should have included a no project 

alternative that assumed little or no delivery of surplus water; and (4) DWR failed to 

approve or reject the Kern Water Bank transfer. 

We affirm the judgment.

A. Trial Court Erred in Not Staying Claims

Food Safety argues Code of Civil Procedure section 916 automatically stayed the 

trial court’s consideration of Food Safety’s challenge to the Revised EIR because the 

prior litigation involving the Monterey Plus EIR discussed above sought some of the 

same remedies. A few months after filing this action, Food Safety filed a motion in the 

trial court for stay of proceedings pursuant to Code of Civil Procedure section 916, 

subdivision (a). After a hearing on the motion, the trial court found this statute did not 

automatically stay its review of the Revised EIR. The trial court denied the motion.7

On appeal, Food Safety argues the proceedings before the trial court should have 

been stayed, rather than the petition denied and the writ discharged, due to issues in two 

claims being embraced in a related appeal. The present case has been consolidated with 

the appeal by Central Delta, wherein which we consider both these claims. Therefore,

the issue is moot.

7

 The appellants in case No. C078249 filed a petition for writ of supersedeas in this court 

seeking an order imposing a stay on the trial court’s proceedings regarding whether DWR 

complied with the trial court’s writ of mandate issued in that case. The stay sought 

would also have impacted this appeal. We denied the petition.
49

B. Revised EIR’s Failure to Analyze Crop Conversion

Food Safety contends DWR failed to adequately address the impacts caused by the 

transfer of the Kern Water Bank, in terms of both (1) the relationship between the transfer 

and an increase in the planting of permanent crops and (2) the impact of this crop 

conversion on water supply and reliability. According to Food Safety, the Revised EIR’s 

conclusion that the Kern Water Bank transfer did not cause crop conversion in the water 

bank service area is not supported by substantial evidence, nor is the report’s analysis of 

the impacts to regional and statewide water supplies caused by crop conversion.

The Monterey Plus EIR discussed the Monterey Plus project’s potential to 

contribute to the frequency of farmers switching from annual crops such as cotton or 

alfalfa to permanent crops such as nuts, vines, and citrus. The Revised EIR found the 

genesis of the conversion began in the 1980s and continued through the 2000s. DWR

stated, based on current trends, more farmers in the SWP service area would replace 

annual crops with permanent crops.

The Revised EIR continued with its analysis of the conversion phenomenon. 

From 1996 through 2014 the total number of acres in crop production grew by 1.2 

percent in Kern County and by 3.7 percent in the Kern Water Bank Authority member’s 

service area. The number of acres devoted to permanent crops in both locations 

increased between 54 and 239 percent, and the number of acres of annual crops decreased 

between 39 and 89 percent. The Revised EIR found that in the Kern Water Bank 

Authority member’s service area about 110,000 more acres of nuts, citrus, and fruit trees 

were in cultivation in 2015 as compared to 1995.

In addition, the Revised EIR noted this trend in crop conversion in the service area 

was consistent with changes in the rest of Kern County, which experienced planting of 

275,000 more acres of nuts, citrus, and fruit in 2014 as compared to 1996. The Revised 

EIR provided graphs underscoring the growth in almond acreage in all of the San Joaquin 
50

Valley. DWR concluded the trend toward permanent crops would likely continue in the 

future.

The Monterey Plus EIR also analyzed the potential causes of the ongoing crop 

conversion trend. The Monterey Plus project increased the reliability of SWP

contractors’ access to water, which potentially increased the frequency of crop 

conversion. The deletion of article 18’s urban preference provision in times of shortage 

increased the reliability of water deliveries.

The Revised EIR further continued this analysis of the causes of crop conversion, 

noting this phenomenon was taking place statewide. Two factors appeared responsible 

for the shift from annual to permanent crops. First, the conversion was in response to an 

increase in profitability of permanent crops. Second, state water policies encouraged 

increased irrigation efficiency, requiring more investment by farmers in their 

infrastructure. Efficiency required famers to move from less expensive, less efficient 

flood and furrow irrigation to more expensive and efficient micro drip irrigation. The 

increased irrigation costs create an incentive for farmers to grow more lucrative crops.

The Revised EIR determined the trend towards permanent crops was not confined 

to land within the Kern Water Bank Authority member’s service area, but stretched 

throughout California’s agricultural areas. In addition, DWR observed that in dry years 

when surface water is reduced, there is an increase in groundwater pumping. 

Groundwater pumping is independent of the Kern Water Bank. The DWR concluded that 

crop conversion would occur with or without the existence of the Kern Water Bank.

In the trial court, Food Safety argued the Revised EIR failed to adequately analyze 

the environmental impact of the Kern Water Bank’s facilitation of crop conversion. Food 

Safety asserted a clear causal relationship existed between the transfer, use, and operation 

of the water bank and the massive increase in permanent crops in the service areas. The 

conversion to permanent crops impacts state water supplies by replacing annual crops 
51

that could be fallowed with crops dependent on a constant supply of water. Food Safety 

referred to the environmental impact as a hardening of demand for SWP water.

DWR countered that the Revised EIR adequately addressed the causes of crop 

conversion and its potential environmental impacts. DWR argued substantial evidence in 

the record supports the Revised EIR’s findings that, while the Kern Water Bank could 

contribute to crop conversion, it would not result in significant environmental impacts.

The trial court reviewed the record and found the Revised EIR adequately 

addressed the reality of crop conversion, its causes, and potential impact on the 

environment. The court found Food Safety’s claims that the Revised EIR “ ‘goes to great 

lengths’ ” to dispute any connection between the water bank and crop conversion “an 

exaggeration.” The Revised EIR concluded the Kern Water Bank is not the primary 

cause of crop conversion, a conclusion the court determined was supported by substantial 

evidence.

The evidence before the trial court revealed the primary forces behind crop 

conversion were and are the higher commodity price of permanent crops as compared to 

annual crops, making them more valuable to growers, and the need for growers to plant 

more valuable crops to cover the costs of implementing more efficient irrigation systems. 

This trend toward permanent crops was not new nor unique to the area served by the 

Kern Water Bank. The trend developed decades ago and spread throughout California.

Food Safety found fault with the Revised EIR for determining the Kern Water 

Bank had no significant impact on crop conversion within the area it serviced. The 

Revised EIR suggested that since alternative sources of water were available within the 

Kern Water Bank service area, crop conversion would have occurred even without the 

development of the water bank. Food Safety challenged the evidence cited by the 

Revised EIR, a map of groundwater wells, arguing the evidence did not show alternative 

groundwater supplies were available. Instead, Food Safety cited evidence that the west 
52

side of the San Joaquin Valley lacks sufficient groundwater resources and that the Kern 

Water Bank made planting permanent crops possible.

In response, DWR argued that farmers on the west side of the valley who lacked 

sufficient groundwater resources on their own property could use other Kern region water 

bank projects to store SWP water deliveries. A study in the 2010 Monterey Plus EIR and 

incorporated in the Revised EIR, Appendix E, showed that from 1995 through 2004, 

SWP water deliveries to Kern Water Bank members could have been stored in other 

water banking projects. The Revised EIR did not update the study, because 1995 through 

2004 was a particularly wet period making it likely there would be adequate storage 

during a drier period.

Food Safety objected that there was no evidence all Kern Water Bank members 

had access to other water bank facilities. DWR responded that the study revealed the 

opportunity to store SWP water delivered to the Kern Water Bank was possible in other 

water bank projects, and therefore Kern County Water Agency members, as a whole, 

could have used the water even if individual Kern Water Bank participants could not. 

The trial court found this argument supported by substantial evidence.

The Revised EIR determined that, even if crop conversion would take place 

without the Kern Water Bank, the facility could contribute to crop conversion by 

increasing available water supply in the service area. Implementation of the Kern Water 

Bank in combination with other water projects could result in the conversion of annual 

crops to permanent crops. The Revised EIR analyzed and discussed the potential 

environmental impacts of crop conversion. DWR concluded that crop conversion in and 

of itself did not pose a potentially significant environmental impact.

The trial court agreed. The court reasoned that CEQA defines a significant 

environmental impact as a “substantial, or potentially substantial, adverse change in the 

environment.” (Pub. Resources Code, § 21068.) CEQA defines environment as “the 

physical conditions which exist within the area which will be affected by a proposed 
53

project, including land, air, water, minerals, flora, fauna, noise, objects of historic or 

aesthetic significance.” (Pub. Resources Code, § 21060.5.) Therefore, a shift from one 

type of agricultural crop to another does not, by itself, represent a substantial change in 

the environment. Instead, the court must consider whether crop conversion causes a 

substantial, or potentially substantial, adverse environmental change.

The Revised EIR analyzed the potential cumulative environmental impact of 

shifting from annual to permanent crops, guided by CEQA’s checklist of environmental 

factors. These factors include terrestrial biological resources, visual resources, 

agricultural resources, air quality, soil erosion, land use, noise, cultural and 

paleontological resources, and traffic. (Pub. Resources Code, § 21083; Cal. Code Regs., 

tit. 14, Appendix G.) DWR found potential environmental impacts of crop conversion 

both positive and negative, but less than significant.

In challenging the Revised EIR, Food Safety underscored the potential impact of 

“ ‘hardening of demand,’ ” arguing the shift to permanent crops has hardened demand for 

SWP water supplies. This hardened demand results in less flexibility for cutbacks during 

droughts. The trial court found DWR correctly pointed out that hardening of demand is 

not an environmental impact.

The court also noted Food Safety’s argument reflected a concern that the shift to 

permanent crops will lead to more SWP water being pumped from the Delta. Food 

Safety characterized this as a “ ‘straw-man argument.’ ” However, Food Safety itself 

referred to the issue as a hardening of the demand for SWP and Delta water and Delta 

water pumping. Therefore, DWR’s focus on the potential impacts of crop conversion on 

Delta water was correct.

The Revised EIR found that the Kern Water Bank would not result in an increase 

in Delta water exports because SWP contractors would have requested the same amount 

of water with or without the Kern Water Bank. The trial court agreed, noting the 

evidence showed that since the 1980s the SWP has been supply-limited not demand-
54

limited. The court concluded: “Thus, there is no reason to expect that SWP contractors

would have requested less water if there was no Kern Water Bank. Further . . . the 

Revised EIR concludes that even if the Kern Water Bank did not exist, all SWP water 

delivered to the Kern Water Bank by KCWA [Kern County Water Agency] members 

could have been delivered and stored in other locations. Thus, there is evidence to 

support DWR’s finding that the existence of the Kern Water Bank places no additional 

‘pressure’ on Delta resources.”8

On appeal, Food Safety renews its claims of a lack of substantial evidence to 

support the Revised EIR’s finding on the environmental impacts of the Kern Water Bank 

on crop conversion. According to Food Safety, the transfer, use, and operation of the 

Kern Water Bank facilitated massive crop conversion in the Kern Water Bank Authority 

member’s service area. Food Safety cites the growth of permanent crops in the service 

area and argues the Revised EIR fails to “disprove that the water stored in the Kern Water 

Bank was used to water new permanent new crops that were planted after the Kern Water 

Bank transfer. It even fails to disprove that the Kern Water Bank transfer did not cause 

the planting of most or all of the permanent crops in the [Kern Water Bank Authority]

member’s service areas.”

We reiterate the scope of our review of an environmental impact report. We 

review the adequacy of the Revised EIR for substantial evidence. (City of Long Beach v. 

Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.) “ ‘The 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 Assn. v. 

8

 The court also noted the Monterey Plus EIR evaluated whether the Monterey 

Amendment project, including the SWP deliveries to the Kern Water Bank, could impact 

the Delta. The Monterey Plus EIR concluded that any possible impacts would be reduced 

to less than significant levels with mitigation. The Revised EIR did not include any new 

information challenging this conclusion.
55

Regents of the University of California (1988) 47 Cal.3d 376, 392.) We focus on the 

environmental impact report’s adequacy, completeness, and good faith effort at full 

disclosure. (Association of Irritated Residents v. County of Madera, supra,

107 Cal.App.4th at p. 1390.) We may not set aside an agency’s approval of an 

environmental impact report on the ground that an opposite conclusion would have been 

equally or more reasonable. (Western States Petroleum Assn. v. Superior Court (1995) 

9 Cal.4th 559, 573-574.) An agency’s decision to certify an environmental impact report

is presumed correct, and the party challenging the certification bears the burden of 

proving otherwise. (Sierra Club, supra, 163 Cal.App.4th at p. 530.) 

Here, the trial court carefully considered the record in response to each of Food 

Safety’s contentions that the Revised EIR’s conclusion on crop conversion was not 

supported by substantial evidence. In each instance, the court set forth the evidence in 

the record and found it to be substantial evidence supporting DWR’s findings in response 

to Food Safety’s claims. 

On appeal, Food Safety renews arguments made in the trial court and highlights 

other evidence in the record calling into question the Revised EIR’s conclusion. Food 

Safety argues the Revised EIR improperly denies that the transfer of the Kern Water 

Bank caused the large-scale conversion of crops. However, as the trial court noted, the 

Revised EIR recognized that implementation of the Kern Water Bank, in conjunction 

with other water projects, could potentially result in the conversion to permanent crops. 

Accordingly, the Revised EIR analyzed and discussed the potential environmental 

impacts of crop conversion. 

Food Safety again disputes DWR’s finding that groundwater used as alternative 

sources of water could be responsible for the planting of permanent crops. Food Safety

maintains it established the lack of alternative water available to Kern Water Bank 

member agencies by providing evidence the west side of the San Joaquin Valley lacks 

reliable ground water resources and by demonstrating that the only evidence provided by 
56

DWR, Appendix E of the Monterey Plus EIR, was rejected by the court in the Monterey 

Plus EIR litigation as improperly limited in time.

However, Appendix E was not the only evidence cited in the Revised EIR. The 

Revised EIR noted that west side farmers have access to SWP contractors who supply 

them with SWP water or with water stored in local groundwater banks. The majority of 

the 2.3 million acre-feet of groundwater banked in Kern County between 1995 and 2000 

was unrelated to the Monterey Amendment. Farmers on the west side have access to 

local groundwater and excess groundwater stored in other water projects. In addition, 

many farmers had converted to permanent crops prior to the Monterey Amendment and 

the Kern Water Bank.

As for Appendix E, Food Safety argues it “should have been updated to analyze 

post-2004 conditions as well as post-2004 use and operation of the Kern Water Bank.” 

Appendix E of the Monterey Plus EIR incorporated into the Revised EIR, showed that 

from 1995 through 2004, SWP water deliveries to Kern Water Bank participants could 

have been stored in other water banking projects. In preparing the Revised EIR, DWR 

determined an update was not required because 1995 through 2004 was a particularly wet 

period “making it even more likely there would have be adequate storage during a drier 

period.”

In short, Food Safety and the DWR disagree over whether the study in Appendix 

E should have been updated. However, in determining whether substantial evidence 

supports the agency’s approval of an environmental impact report, we may not set aside 

the agency’s approval on the ground that an opposite conclusion would have been equally 

or more reasonable. If there are conflicts in the evidence, they are resolved in favor of 

the agency. (Town of Atherton v. California High-Speed Rail Authority (2014) 

228 Cal.App.4th 314, 350-351; Mount Shasta Bioregional Ecology Center v. County of 

Siskiyou (2012) 210 Cal.App.4th 184, 195.) 
57

Finally, Food Safety again contends the Revised EIR fails to adequately analyze 

the increased pressure year after year on regional water supplies, i.e., the “hardening” of 

demand for SWP water. However, the Revised EIR determined the Kern Water Bank 

will not cause an increase in water pumped from the Delta because SWP contractors 

would have requested the same amount of water with or without the Kern Water Bank. 

As the trial court noted, the evidence shows that since the 1980s the SWP has been 

supply-limited, not demand-limited. Therefore, “there is no reason to expect that SWP 

contractors would have requested less water if there was no Kern Water Bank.”

Substantial evidence supports the Revised EIR’s finding that, although the Kern 

Water Bank increased the water supply reliability in the area it serviced, the 

environmental impact of the Kern Water Bank on crop conversion was less than 

significant. 
58

DISPOSITION

We affirm the judgment in Central Delta Water Agency et al. v. Department of 

Water Resources, case No. C078249, including the judgment against cross-appellants 

Kern Water Bank Authority, et al., and the judgment in Center for Food Safety et al. v. 

Department of Water Resources, case No. C086215. We affirm the trial court’s order 

denying attorney fees in Center for Biological Diversity v. Department of Water 

Resources, case No. C080572. The parties shall bear their own costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(5).)

 /s/

RAYE, P. J.

We concur:

 /s/

BLEASE, J.

 /s/

HOCH, J.