Filed 4 / 11 / 22 (unmodified opinion and 3 /22 /22 pub. & mod. order attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BUENA VISTA WATER STORAGE DISTRICT,

Plaintiff and Respondent,

v.

KERN WATER BANK AUTHORITY,

Defendant and Appellant. 2d Civil No. B309764 (Super. Ct. No. 56

- 2019

- 00528316

- CU

- WM

- VTA) (Ventura County)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on February 23,
2022
, be modified as follows: On page 1, the second sentence of the first paragraph beginning “In 2010, the State Water Board” is deleted and replaced with :

In 2010, the State Water Board (State Board) issued an order removing the fully appropriated stream designation of the Kern River based on evidence that “there [was] some2 unappropriated water in the Kern River” in certain wet years.

There is no change i n judgment. Respondent’s petition for rehearing is denied.

____________________________________________________________ YEGAN

, Acting P. J. PERREN , J. TANGEMAN, J.F iled 2 / 23 / 22 ; modified and certified for publication 3/22/22 (order attached) (unmodified opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BUENA VISTA WATER STORAGE DISTRICT,

Plaintiff and Respondent,

v.

KERN WATER BANK AUTHORITY,

Defendant and Appellant. 2d Civil No. B309764 (Super. Ct. No. 56

- 2019

- 00528316

- CU

- WM

- VTA) (Ventura County)

Appellant Kern Water Bank Authority ( KWBA ) appeals from the judgment grant ing respondent Buena Vista Water Storage District’s (Buena Vista) petition for a writ of
mandate . KWBA contends the trial court erred in finding its environmental impact report (EIR) inadequate pursuant to the
California Environmental Quality Act (CEQA). We agree the
EIR was adequate and reverse

.2 FACT UAL AND PROCEDURAL HISTORY
KWBA is a “Joint Powers Authority

, ” a public agency
consist ing of fiv e water districts and one privately

- owned mutua l water company. KWBA operate s Kern Water Bank ( KWB )

. Surface w ater from various sources , including the Kern River, is
diverted into land owned by the KWBA to recharge the KWB

. In dry years, KWBA recover s water from the KWB

. Buena Vista is a water storage distr ict located wi thin Kern County. Kern River Hydrology
The Kern River originates in the southern Sierra
Nevada and flows southwest to the floor of the San Joaquin Valley

. The upper segment of the river flow s into the Lake
Isabella Reservoir and Dam , which has been used as a storage and regulation reservoir by the United States Army Corps of Engineers (USACE) and Kern River rights holders

. The Kern
River Watermaster manages water stored within Isabella
Reservoir and directs releases from it for wate r control purposes

or to satisfy the needs of Kern River water rights holders

. Below the Isabella Dam, river flows are controlled by
a series of weirs and canals used to divert water. Some of the key features in the lower segment of the river include the First Point
of M easurement ( located 30 miles downstream from Lake Isabella)

, the Second Point of M easurement (located several miles downstream from the First Point) , and the Kern River

- California
A queduct Intertie (Intertie)

. The First Point of M easurement was established to measure river flow prior to major diversions so the flows could be properly apportioned among right s holders.
The Second Point of M easurement was established to document deliveries to downstream right s holders. The Intertie is a3 physical structure through which flood waters are diverted to the California Aqueduct

. Under normal conditions, the Kern River is dry as it

runs through Bakersfield . But in some wet year s, the river flows through Bakersfield before reaching the Intertie

. In these wet years, water flows reach a level that trigger “mandatory release”
flood conditions

. These are conditions under which USACE
orders the rel ease of water (flood flows) from the Isabella
Reservoir

. To alleviate downstream flooding

, the Department of Water Resources (DWR) operates the Intertie to catch excess
flood flows and divert the m into the California Aqueduct. Existing Kern River Water Rights
California law recognizes “ appropriative water rights

. ” These rights allow the rights holder to d ivert a specified quantity of surface water for a reasonable, beneficial use on land

. Before 1914, Kern River water rights were administered th r ough

“ ‘ the law of the river, ’ ” arising from a series of court decisions, orders, decrees, and agreements dating back to the 1860 s

. In 1914, the Water Commission Act went into effect

. Thereafter , only the State Water Board ( State Board) may issue new appropriative water rights. (Wat. Code, 1 § 1225.) To date,
most Kern River water div ersion s are b ased on pre

- 1914 water rights. A definitive quantification of all water rights on the Kern
River has n ever been conducted.
Pre

- 1914 water appropriative rights have seque ntial priority. When river flow is insufficient to supply all right s holders, the highest priority appropriator is entitled to full appropriation before the next is entitled to any. Pre

- 1914 rights

1 Further unspecified statutory references are to the Water Code.4 holders have priority over any appropriative rig hts granted by
the State Board.
Under the 1888 Miller

- Haggin Agreement

, 2 water rights were allocated into three groups: First Point rights,
Second Point r ights, and Lower River rights. Water a llocations
are based on the computed natural flow at the First Po int , and
allocations of the First and Second Point flows are made on a daily bas i s. Any water that is not stored or diverted by the First
and Second Point rights holders and which passes State Highway
46 via the Kern Flood Channel belongs to Lower River r ights
holders

. Allocations to Lower River right s holders are typicall y only available in wet years. The City of Bakersfield, North Kern, and Kern Delta Water District hold the First Point rights. Respondent Buena Vista holds the Second Point rights

. The K ern C ounty W ater A gency holds the Lower River rights.
KWBA Water Source
KWBA does not hold Kern Ri ver water rights except for those rights it has purchased from others

. Water diverted
into the KWB is obtained from three main sources: the State Water Project, the Central Valley Project, and the Kern River

. Kern River water (from both purchases and floodwater) account s for about 24 percent of the water diverted to the KWB.
KWBA has diverted and used Kern River water in
accordance wit h the “ Policy Re

- Utilization of Isabella Reservoir
Flood Releases ” ( Flood Policy )

. 3 This policy is impl emented by

2 The Miller

- Haggin Agreement was a settlement amon g certain Kern River diverters.

3 The Flood Policy has been in effect at least since 1986

.5 the Kern River Watermaster pursuant to a n agreement among Kern River rights holders

. The Flood Policy takes effect in wet years when mandatory release conditions are triggered and flood
flows released from the Isabella Reservoir flow into the Intertie. The Flood Policy provides that during periods when (1) abnormal
flow is released from t he Lake Isabella Reservoir by order of
USACE and (2) such flow enter s into the Intertie, water is available to “any person, interest or group in Kern County who wish to divert that water, up to the amount of water flowing into the Intertie, provided such i nterest, person or group acknowledges their desire to divert said water by executing an ‘Order’ which shall include, among other things, a description of the point they wish to divert such flow, the rate of flow they wish to divert and provide a schedule s uch that the request may be honored by the operating Kern River entity. The policy is without prejudice to the rights of any of the Parties. ”
State Board and Court Decision s In 1964, the State Board issued Water Right Decision 1196 (D

- 1196) , in which it f ound no Kern River wat er available for appropriation. Based on this decision, the State Board
included Kern River on its list of Fully Appropriated Streams (FAS Declaration) pursuant to sections 1205 through 1207. The
State Board subsequently issued an order (WR 89

- 25) adopting
the FAS D eclaration

. The finding that Kern River was fully appropriated was reconfirmed in 1991, 1994, and 1998 ( WR 91

- 07 , WR 94

- 01 and WR 98

- 08). The FAS Declaration may be modified based o n a “change in c ircumstances.” ( Cal. Code Regs. , tit. 23, § 871 , subd. (b ).) Circumstances began changing with the construction of the
Intertie in 1977. The Intertie was built to alleviat e flooding in6 the lower Kern River region and nearby a gricultural lands in wet

years

. The Inter tie only divert s river flows to the aqueduct when
flows are in excess of water claimed by the water rights holders

. Since the construction of the Intertie, floodwater ha s been
diverted from the Kern River in nine separate years

. In 2007
, the Fifth District Court of Appeal decided
N orth Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555 ( North Kern Water Storage )

— a case litigated

amon gst First Poi nt rights holders. The court held that there

was a partial forfeiture of Kern Delta’s First Point rights due to

nonuse

. (§ 1241.) The court concluded that the question of
whether the forfeiture created available water for appropriation
would be resolved by the State Board

. ( North Kern Water Storage

, at p. 58 4 .)
T he State Board received petitions requesting
revision s to the FAS Declaration . The State Board found

, b ased on (1) the occasions in which the Intertie diverted excess floodwater and ( 2) the partial forfeiture finding in the North Kern Water Storage case, that there “may have been a change in
circumstances. ” The State Board set a hearing on the question of
whether the FAS Declaration should be revised. Following a hearing, the State Board issued an order (WR 2010

- 0010) amending the FAS Declaration to remove the designation of the Kern River as full y appropriated. The State
Board concluded that “ there [ was ] some unappropriated water ”
based on evidence that water in exce ss of that cla imed by rights
holders had been diverted into the Intertie in certain wet years.
The State Board ordered the FAS Declaration amended “to allow for processing applications to appropria te water from the Kern River.” T he State Board clarified that the7 “ processing water right applications will require consideration of
numerous issues not addressed in th is order

, ” including “when
and how much available water ther e is for appropriation. ” Buena Vista and KWBA, among others, petitioned for
reconsideration of the order amending the FAS Declaration

. Their petitions were denied in order WR 2010

- 0016. The State
Board clarified that its order amended the FAS declaration based
on evidence that there was some unappropriated water available

, but concluded that “issues concerning the specific amounts of water available for appropriation, the season of water
availab ility, and other issues relevant to determining whether water rights permits may be issued are best determined as a part of the processing of water ri ghts applications.” The Project
T he Kern Water Bank Authority Conservation and Storage Project (the Project) was proposed by KWBA and is designed “to directly dive rt up to 500,000 [acre

- feet

- per

- year (AFY)] from the Kern River for recharge, storage, and later recovery within the KWB through existing diversion works and recharge facilities located on the KWB lands, and/or to deliver water directly to KWBA’s participating members’ service areas via [existing canals].” 4 KWBA, as the lead agenc y, prepared an
EIR to evaluate environmental impacts of the Project

. The EIR

was also intended to be used by the responsible agenc y ( i

. e. , the

4 500,000 AFY is the maximum quantity that KWBA can physically divert and recharge withi n the KWB in the wettest

years. Any water directly divert ed to KWBA members would reduce the amount that can be diverted to storage by the same
amount.8 State Board) to consider “how or whether to approve permits
associated with i mplementation of the project.”
T he EIR “ addresses the appropriation of high flow Kern River water, only avai lable under certain hydrologic conditions and after the rights of senior Kern River water right
holders have been met, that otherwise would have : (1) been diverted to the Intertie, ( 2) flooded farmlands, or (3) left Kern County.” The EIR further state d that based on an analysis of historical hydrology, flood flows would be available for diversion
in only about 18 percent of all years. The EIR specifie d in the “Project O bjectives” that
KWBA seeks to “ [ s ] ecure water rights to unappropriated Kern River water in order to maximize use of the KWB’s existing capabilities,” “[c]ontinue [allowing] Kern River water to be diverted to the KWB during times of excess Kern River flows for recharge and later recovery by KWBA,” and enhance “water supply reliability, particularly in dry years, to KWBA participating members th rough storage within the KWB.”
To fulfill Project objectives

, KWBA separately filed a n application with the State Board (Application 31676) , seeking a water right permi t to directly divert up to 500,000 AFY of water from Kern River for underground storage and other beneficial

uses during years when water i s available

. The EIR analyze d the impacts of State Board approv al of th is permit.
T he EI R evaluated various environmental impacts, including the impact s on hydrology and groundwater resources

. It use d the environment settings from 1995 (when KWB began operating) to February 2012 (when the Notice of Preparation for the Project was issued) as the baseline conditions

. T he EIR9 discussed the hydrological changes that would occur i f the Project

was implemented.
KWBA conducted a W ater Availability Analysis (W AA ) 5 with a “key objective” “to determine if flood water is available for appropriation.” The WAA provided historical
measurements of diversions of Kern River wat er by existing rights holders. It also provided measurements of Kern River water diverted to the Intertie, and the amount diverted by KWBA in prior years pursuant to the Flood Policy (KWBA diverted flood flows in three years during th e baseline period)

. From these records, the WAA esti mated how much water, in excess of that used by rights holders, could have been delivered to the KWB based on existing water banking recharge and diversion capacit ies

. Based on the analysis, the EIR found “there exists both the opportunity to fulfill the water requested by the project as well as the quantity of surplus water being requested by the project on these occasions.” The EIR concluded that because “KWBA would only divert available surplus Kern River water which cannot
otherwise be used or stored b y existing Kern River water right holders, and would not divert surplus flows in normal or dry years, . . . [n]o mitigation is required because the project is not expected to result in a significant impa ct on available water supply.”
The EIR also discusse d the Project’s impact on groundwater resource s. It determined that there would be a “ less than significant” impact on groundwater levels

, b ecause the

5 The entire WAA is included in the appendix to the EIR

. Relevant summar ies and findings from the WAA are presented in the EIR.10 Project seeks to “only

. . . increase water available for recharge and storage” and not to change recovery operations (within historical levels) in multiple dry years

. Thus, “recovery operations would not result in any marginal l owering of groundwater levels.” The EIR concluded tha t “[n]o mitigation is required because the project is not expected to result in significant impacts on groundwater recharge or local groundwater elevations. ” Following a comment period, KWBA
certified the final EIR and approved the Project

. Trial Court P roceedings Buena Vista petitioned for a writ of ma ndate, seeking
to set aside KWBA’s certification of th e EIR and its approval of the Project. The trial court granted the writ on the ground that
the EIR was “inade quate

. ” The court found : (1) the “definitions of Project water and existing water rights are inadequate because they are inaccurate, unstable, and indefinite ”; (2) the “baseline analysis is inadequate because it fails to include a full and complete analysis, including quantification, of competing existing rights to Kern River water ”; and (3) the “analysis of environmental impacts is inadequate in terms of the significant environmental impacts on senior rights holders and significant environmental impacts on groundwater during l ong

- term recovery operations.” The court ordered KWBA to set aside the

r esolution certifying the EIR , prepare a legally adequate EIR,
and suspend activities related to its approval of the Proj ect. DISCUSSION
KWBA contends (1) the Project descriptions of Project

w ater and existing water rights satisfied CEQA requirements; (2)

a complete quantification of existing Kern River water rights was11 not required ; and (3) the EIR properly evaluated the environmental impacts of long

- term recovery oper ations on existing rights and groundwater levels

. We agree with each of
these contentions.
General CEQA Principles and Standard of Review
The EIR is the “‘ heart of CEQA. ’” ( Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 ( Laurel Heights ) .) The purpose of an EIR is

“ to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways i n which the significant effects of such a project might be minimized; and to indicate alternatives to such a project. ” (Pub. Res ources Code, § 21061.) “ Informed public participation is essential to environmental review under CEQA.” ( Washoe Meadows
Commu nity v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277, 285.)

“ An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible

. . . . The courts have looked

not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” ( Cal. Code Regs., tit. 14, § 15151.) We review the agency’s action rather than the trial court’s ruling, applying the same standards as the trial court ; in
that s ense appellate judicial review under CEQA is de novo

.12 ( Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal.4th 412, 427.)
We review the agency’s decision for abuse of discretion. ( Laurel Heights

, supra , 47 Cal.3d at p. 392 ; Pub.
Resources Code

, § 21168.5 .) Abuse of discretion is established (1) when the agency has not proceeded in a manner required by law

or (2) if the determination or decision is not supported by substantial evidence. ( Laurel Heights , at p. 392. ) “ ‘ Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, “ scrupulously enforc[ing] all legislatively mandated CEQA requirements ” [citation ] , we accord greater deference to the agency ’ s substantive factual conclusions. In reviewing for substantial evidence, the reviewing court “ may not set aside an

agency ’ s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable

. ” ’ ( Sierra
Club v. County of Fresno (2018) 6 Cal.5th 502, 512 ( Sierra Club ) .) Project Description
KWBA correctly contends the trial court erred when
it found th at the descriptions of (1) Project w ater and (2) existing water rights were inaccurate, unstable

, and indefinite.

“ [ E ] very EIR must set forth a project description that is sufficient to allow an adequate evaluation and review of the environmental impact .” ( San Joaquin Raptor Rescue Center v. County of Merced ( 2007) 149 Cal.App.4th 645, 654 .) An “accurate, stable [

, ] and finite ” project description is essential to an informative and legally sufficient EIR. ( County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 19 3 ( County of Inyo ) .)
“A curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate13 view of the project may affected outsiders and public decision

makers balance the proposal ’ s benefit against its environmental
cost, consider mitigation measures, assess the advantage of terminating the proposal

. . . and weigh other alternatives in the
balance. ” ( Id

. at pp. 192

- 193.) An agency’s f ailure to provide an accurate, stable, and finite project description is a failure to proceed in a manner required by law. ( Id

. at p. 2 00.)

1. Project Water Here, the “Project Description” chapter adequately and consistently describes Project water as “ high flow Kern River water, only avai lable under certain hydrologic conditions and after the rights of senior Kern River water right holders have been met, that otherwise would have (1) been diverted to the Intertie, (2) flooded farmlands, or (3) left Kern County.”
In the same chapter and in other chapters, the EIR
describe s the “ hydrologic conditions ” in which Project water
would be available and define s the terms “diverted to the Intertie,” “flooded farmlands

, ” and “left Kern County

. ” In the chapter describing the Project’s environmental settings, the EIR explains that before the Intertie was buil t , “high flows would spill into agricultural fields in the Buena Vista Lake and Tulare Lake
beds. ” After the Intertie was built, these high flows ( that would
have otherwise flooded agricultural fields ) are now diverted through the Intertie into the California Aqueduct, where the water is then routed out of Kern County. Even after construction of the Intertie, there have been instances where up to 430,000 AF of water bypassed the Intertie to “flood farmlands in the Tulare Lake Basin, where a large volume of that water simply evaporated.”14 The EIR explains that the Intertie is used when mandatory release conditions result in the release of flood flows
from the Lake Isabella Reservoir

. The EIR estimates that Projec t water would be available in 18 percent of all years, based on historical records , which show that t he Intertie has operated nine years since it was built.
Buena Vista contend s that the description of Project

water is inconsistent throughout the EIR and highlights four other descriptions: (1) “water that would ‘trigger mandatory release conditions for flood control, cause downstream flooding

, and/or operate the intertie’” or “ ‘ flood flows ’ ” resulting from the Flood Policy ; (2) “wat er that was historically offered to the Intertie”; ( 3 ) “ water historically diverted by KWBA”; and (4)

“ ‘ unappropriated ’ ” or “ ‘ surplus ’ ” water. T h is contention fails
because th ese descriptions are not inconsistent ; but instead , they
describe in different words the same conditions under which Project water ha s historically flowed. First, “mandatory release flood flows” is not an inconsistent de scription because , as the EIR explains

, Project water is available in years when mandatory release condition s

are triggered

— that is

, when abnormally heavy flow is released
from the Isabella Reservoir and the Inter tie is operated to catch flows that would otherwise cause flooding to farmlands

. Buena Vista contends that the term “flood flows” is unclear because water diverted to Lower River right s holders is
also referred to as flood flows. But the EIR clarified that “ flood
flows ” refer to water released from the Lake Isabella Reservoir

. The EIR also emphasizes that Project water is unappropriated

water that is available only after existing water rights are
satisfied , whereas w ater subject to Lower River rights is15 appropriated water that does not meet the EIR’s de s cription of Project water. Second, “ water

. . . histo rically offered to the Intertie ”
is not an inconsistent description of Project water

. The P roject seeks diversions of water that “have historically occurred and are proposed to occur only in high water years when [the DWR ] might otherwise operate the Intertie t o capture excess flood
flows.” Thus, w ater diverted through the Intertie into the California Aqueduct is unappropriated water

. Third, water that “KWBA has historically received” is
not an inconsistent description of Project water

. The EIR

exp lains that pursuant to the Flood Policy, KWBA ha s historically diverted flood flows into the KWB that would have otherwise been diverted to the Intertie. Thus, the Project would “result in a State Water Board permit for the continuance of a

pre

- existing a ctivity throug h use of existing facilities.” The EIR
further clarifies that the P roject would seek a permit “for an existing source of water” “ only to the extent unappropriated Ke rn River flows” are available. This amount of water “ ‘ would not necessarily represent an increase in annual diversions relative to diversions that have historically occurred in the project area. ’ ” In essence, the Project seeks to establish a right to the same water that KWBA ha s historically diverted under the Flood P olicy.
Buena Vista contends that it is unclear if the Project water is limited to floodwater that KWBA historically diverted to the KWB (a maximum of 80,735 AFY of floodwater) or if KWBA’s historical purchases of Kern River water (a maximum of 155, 948
AF Y) are included. But purchased water is water that had fi r st been diverted pursuant to existing water rights. Thus, purchased16 water is not unappropriated water . As such, it does not meet the
de scription of Project water.
Buena Vista also contends that t he Project description is unstable and indefinite because it “relies on the

open

- ended limit of ‘up to 500,000 AF of Kern River water.’” Buena Vista compares this case to Stopthemille n niumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1, in which the EIR’s project description was “indefinite

. ” That case is distinguishable. There, the project was for a “mixed

- use development” and the description “ fail [ed] to describe the siting, size, mass, or appearance of any b uilding proposed to be built at the project site. ” ( Id

. at p. 18.) The draft
EIR merely presented different conceptual scenarios that future developers could follow for the development of th e site. Such

“ concepts and development scenarios

— none of which may ultimately be constructed ,” d id not meet the requirement of a stable or finite proposed project. ( Ibid

. ) Here, a precise amount of water for the Project cannot be determined because water availability will fluctuate from year to year

. Nonetheless , the Project proposes a finite
maximum amount of water for diversion and provide s estimates
of the amount of water that could have been diverted based on
histori cal hydrological conditions. A project description may use a flexible parameter when the project is subject to future changing conditions. (See In re Bay

- Delta etc. (2008) 43 Cal.4th 1143, 1172

- 1173; see also Citizens for a Sustainable Treasure
Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1053

- 1054 ( Treasure Island ).) Th us, the EIR provide s an accurate, stable

, and finite Project description. ( County of Inyo

, supra , 71 Cal.App.3d at p. 193.)17 2. Existing Water Rights
The trial court determined that the Project Description was inadequate because it did not “actually quant ify the amount that water right holders . . . are entitled to” and that this “incomplete data suggests that KWBA failed to investigate and disclose all that it reasonably could.” KWBA argues th at the Project description need not include the complete quantification
of existing Kern River water rights. We agree with KWBA.
Pursuant to section 15124 of the CEQA guidelines

, the EIR project description must include (a) the precise location and boundaries of the proposed project, (b) a statement of the objectives sought by the proposed project, (c) a general description o f the project’s technical, economic, and environmental characteristics, and (d) a statement briefly describing the intended use of the EIR. (Cal. Code Regs., tit. 14, § 15124, subds. (a)

- (d).) The Project description included all of these
elements. It set forth a general description of the P roject’s
technical and environmental characteristics, including
information about the process of obtaining a water right permit / license from the State Board

, the methods and locations of water diversion, the water o perations process, and monitoring of the groundwater

. Nothing in the CEQA guidelines required KWBA to provide a specific quantification of t he existing water rights within its Project description. Moreover, the trial court erred in requiring a quantification of existing rights because

, as KWBA notes, there
has never been a stream

- wide adjudication of Kern River water in which such rights have been quantified. A stream

- wide adjudication is a complex proceeding conducted by the State18 Board or court and could take several years or even decades to complete. ( § § 2000 et seq., 2500 et seq.) “ CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. ” ( Treasure Island

, supra , 227 Cal.App.4th at p. 1046.) Here, the
EIR disclosed all it reasonably could. The Project Description met the requirements of CEQA. Environmental Settings Analysis “An EIR must include a description of the physical environmental conditions in the vicinity of the project. This
environmental se tting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant

. . . . The purpose of this requirement is to give the public and decision makers the most accurate and
understandable pictur e practically possible of the project’s likely

near

- term and long

- term impacts.” (Cal. Code Regs., tit. 14, § 15125 , subd. (a) .) The baseline condition must be based on actual existing physical conditions, as opposed to hypothetical
conditions

, under existing plans, permits or regulations

. ( Ibid

. )

“ If the description of the environmental setting of the project site and surrounding area is inaccurate, incomplete or misleading, the EIR does not comply with CEQA. [Citation.]
‘Without accurate and complete information pertaining to the setting of the project and surrounding uses, it cannot be found that the FEIR adequately investigated and discussed the environmental impacts of the development project.’ [Citation.]” ( Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 87.) Here, the trial court found that a detailed description
of the environmental settings should include (1) “ quantified measurements of water used by existing Kern River water rights19 holders, ” and (2) “ quantified measurements of the water those rights holders have the right to divert from the Kern River

. ” With respect to the water used by existing rights holders, t he court acknowledged that the WAA described “the means by which water is allocated to rights holders , outline[d] pre

- 1914 water right holders and diversions as outlined in the 1888 Miller

Haggin Agreement, . . . discuss[ed] approximate annual
allocations to the first point, second point, lower river users, and Intertie deliveries from 1978 to 2011[,] . . . [and] summarize[d] flows at the second point, which reflect [Buena Vista]’s historic
diversions and diversion to the Intertie. ” T he court also acknowledged that KWBA “correctly state[d] that the setting and baseline discussion identifies and quantifies the amount of water that actually was diverted when water has been available for
diversion.” Nevertheless

, the court found the EIR inadequate because “KWBA cannot cite to any quantificat ion of existing water rights.”
Here , a quantification of existing wa ter rights was not necessary to an accurate and complete description of the environmental setting. Historical use may determine the quantitative limits o n the amount of water that a pre

- 1914 water appropriator may divert . ( Millview County Water Dist. v. State
Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 889 .)
As the lead agency, KWBA had the discretion to rely upon
historical measurements of water to determine “ ‘ how the existing physical conditions without the project can most realistically be
measured

. . . . [Citation].’ ” ( Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 336

- 337.)20 KWBA adequately discussed the environmenta l settings . It provided a detailed description of existing Kern River
water allocations and provided historical measurements of water from the First Point, Second Point, and the Intertie during the baseline period

. It also provided measurements of Kern River

water that was historically diverted into the KWB

. From these measurements, KWBA was able to show the availability of unappropriated water and provided estimates of how much water
it could have diverted into the KWB under baseli ne conditions. A complete quantification of existing water rights was not necessary to provide these estimates. The EIR’s environmental settings analysis complied with CEQA requirements. Environmental Impact Analysis
KWBA contends the trial court erred when it found
the EIR inadequate ly analyz ed the environmental impact s on (1) existing water rights and (2) groundwater from long

- term recovery operations

. We again agree.
A lea d agency shall prepare and certify the completion of an environmental impact report on a proposed project. ( Pub. Resources Code, § 21100.) T he report is required

t o have a “detailed statement” setting forth the “significant
effects on the environment of the proposed project

. ” ( Ibid

. ; Cal. Code Regs., tit. 14, §§ 15126, 15126.2.) “ In assessing the impact of a proposed project on the environment, the lead agency should normally limit its examination to changes in the existing physical conditions in the affected area as they exi st at the time the notice of preparation is published, or where no notice of preparation is published, at the time environmental analysis is commenced. Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due21 consideration to both the short

- term and long

- term effects. ” ( Cal. Code Regs., tit. 14, § 15126.2

. )

“ When reviewing whether a discussion is sufficient to satisfy CEQA, a court must be satisfied that the EIR [] includ es sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the
issues the proposed project raises .” ( Sierra Club

, supra , 6 Cal.5th at p. 510 .)

1. Existing Water Rights
The Project seeks to use only unappropriated water
which

, by definition

, excludes water being used pursuant to an existing right. (§ 1202 ; Cal. Code Regs.

, tit. 23, § 695 .) Existing water rights would not be impacted because the Water Board cannot issue a new permit to divert water that is already subject to existing water rights. (§§ 1201, 1202, 1375 ; Cal. Code Regs.,
tit. 23, § 695 .)
Moreover

, the State Board expressly a llowed the processing of applications, such as A pplication 31676, in its
Orders WR 2010

- 0010 and WR 2010

- 0016, after the State Board
found th at water diverted into the Intertie was unappropriated

water. The State Board determined that s uch water is “in ex cess of any proprietary water rights

. ” A quantification of existing rights was therefore not required. Instead, t he EIR properly used historical
measurements of actual water diver sions to evaluate the impacts

on the water supply . (See ante , at p p

. 19

- 20 .) The analysis showed that water for the Project would be available

“ approximately 18% of the time.” It concluded that “[b] ecause KWBA would only divert available surplus Kern River water
which cannot otherwise be used or store d by existing Kern River22 water right holders,

. . . [n] o mitigation is required because the project is not expected to result in a significant impact on available water supply. ” This conclusion is supported by
substantial evidence. ( Sierra Club

, supra , 6 Cal.5th at p. 512.)
2. Long Term Recovery Operations
T he trial court found that the Project proposed to “alter recovery operations, since the Project proposes to make groundwater available for longer

- term pumping operations for additional months or years duri ng drought conditions. As such

, it is likely that the Project will result in groundwater depletion
from extended recover y operations during a drought.”
But t he EIR explains that the purpose of the Project
is to “ add to groundwater supplies and increase the quantity ” of water available for storage within the KWB

. The EIR analyzed the impacts of the Project against its baseline conditions and concluded that “[r] echarging this water would raise the local groundwater levels and result in a net incr ease in aquifer
volume.” With respect to recovery operations, the EIR specifies that the Project “would not recover more groundwater than has been recharg ed.” The EIR states that “ maximum recovery volumes during an extended 3

- year drought, in any single y ear, or in any single month, are not expected to change substantially” because no new recovery f acilities will be constructed. D uring an extreme drought, the banking and storage of K ern River water “may result in extended periods of recover y (e.g., additi onal months or years), but, . . . this would not exceed banked quantities

. ” (Italics added.)23 Moreover, the EIR explains that KWBA’s pre existing operational commitments and monitoring program s 6 “would ensure that banking additional water

. . . would not result in a deficit in aquifer volume or a lowering of the groundwater table levels that would result in potential adverse impacts to the production rate of pre

- existing nearby wells or ex isting or approved land uses.” Buena Vista argues that th e EIR erroneously relied

on pre existing operations because an EIR cannot use mitigation measures to excuse a failure to analyze a p roject’s impacts. This
is incorrect

. Pre existing operations are not mitig ation measures designed to reduce a project’s impact. R ather, they are a part of
the ongoing baseline operations. (See Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, 570

- 571.)
T he EIR thus complied with CEQA requiremen ts in adequately assessing long

- term recovery operations on groundwater levels

. S ubstantial evidence support s the
conclusion that there will not be a significant impact on groundwater levels because the Project will not i ncrease long

term recovery beyond historical (baseline) operations. ( Sierra
Club

, supra , 6 Cal.5th at p. 512.)

6 These include the KWB Memorandum of Understanding Regarding Operation and Monitoring of the Kern Water Bank Groundwater Banking Program (KWB MOU), Long

- Term Project Recovery Operations Plan Regarding Kern Water Bank Authority Project, Interim Project Recov ery Operations Plan, and the Joint P roject Recovery Operations Plan (Joint Plan)

. KWBA states that it will continue to adhere to the commitments set forth in these plans and agreements.24 DISPOSITION The judgment is reversed

. Appellant shall recover costs on appeal.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.Kevin G. DeNoce, Judge

Superior Court County of Ventura

______________________________

Downey Brand, Kevin M. O’Brien, Christian L.
Marsh

, David E. Cameron and Natalie C. Kirkish for Defendant and Appellant. McMurtrey, Hartstock & Worth, Isaac L. St. Lawrence, James A. Worth and Jeremy S. McNutt for Plaintiff and Respondent.Filed 3 / 22 / 22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BUENA VISTA WATER STORAGE DISTRICT,

Plaintiff and Respondent,

v.

KERN WATER BANK AUTHORITY,

Defendant and Appellant. 2d Civil No. B309764 (Super. Ct. No. 56

- 2019

- 00528316

- CU

- WM

- VTA) (Ventura County)

ORDER MODIFYING OPINION AND CERTIFYING OPINION FOR PUBLICATION [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on February 23, 2022, be modified as follows:

1. On page 1, the first paragraph is deleted and the following two paragraphs are inserted as the first two paragraphs of the opinion:

For many years, the Kern River was designated a fully appropriated stream, and only those who held an appropriative right could divert Kern River water. In 2010, the State Water Board (State Board) found that in27 certain wet years, there was Kern River water in excess of that used by rights holders available for diversion. Kern Water Bank Authority (KWBA) filed an applicati on with the State Board seeking a permit for a water right, and it prepared an environmental impact report (EIR) for a project to divert and store up to 500,000 acre

- feet

- per

- year (AFY) of Kern River water in wet years. Buena Vista Water Storage District (Buena Vista) challenged the EIR, and the trial court ruled in
Buena Vista’s favor.

Here, we conclude that when a project is subject to changing conditions, such as annual rainfall and snowmelt, a project description must be sufficiently
flexible to acco unt for such changing conditions. We also conclude that in the absence of a preexisting stream

wide adjudication of water rights, an adequate discussion of the existing water rights need not include a definitive quantification of those rights. Because we conclude the EIR was adequate, we reverse the judgment of the trial court.

2. On page 3, first sentence of the third full paragraph, “(State Board)” is deleted.
3. On page 7, first sentence of the second full paragraph,

“ [acre

- feet

- per

- year (AFY)]” is deleted from the quotation and replaced with “[AFY]” so that the sentence reads:

The Kern Water Bank Authority Conservation and Storage Project (the Project) was proposed by KWBA28 and is designed “to directly divert up to 500,000 [AFY]
from the Kern River for rec harge, storage, and later recovery within the KWB through existing diversion works and recharge facilities located on the KWB lands, and/or to deliver water directly to KWBA’s participating members’ service areas via [existing canals].” 10

4. On page 10, firs t sentence of the last continuing paragraph, “CEQA” is deleted and replaced with “ California Environmental Quality Act (CEQA)” so that the sentence reads:

KWBA contends (1) the Project descriptions of Project water and existing water rights satisfied California Environmental Quality Act (CEQA) requirements; (2) a complete quantification of existing Kern River water rights was not required; and (3) the EIR pr operly evaluated the environmental impacts of long

- term recovery operations on existing rights and groundwater
levels.

10 500,000 AFY is the maximum quantity that KWBA can physically divert and recharge withi n the KWB in the wettest

years. Any water directly divert ed to KWBA members would
reduce the amount that can be diverted to storage by the same

amount.29 The opinion in the above

- entitled matter filed on February 23, 2022, was not certified for publication in the Official Reports. For good cause, it now appears that the opinion should be published in the Official Reports and it is so ordered. There is no change in judgment.

____________________________________________________________ YEGAN, Acting P. J. PERRE N, J. TANGEMAN, J.