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] some 
2

unappropriated water in the Kern River” in 

certain wet years. 

There is no change in judgment.

Respondent’s petition for rehearing is denied. 

____________________________________________________________

YEGAN, Acting P. J. PERREN, J. TANGEMAN, J. 
Filed 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 granting 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

FACTUAL AND PROCEDURAL HISTORY

KWBA is a “Joint Powers Authority,” a public agency 

consisting of five water districts and one privately-owned mutual

water company. KWBA operates Kern Water Bank (KWB). 

Surface water from various sources, including the Kern River, is 

diverted into land owned by the KWBA to recharge the KWB. In 

dry years, KWBA recovers water from the KWB. Buena Vista is 

a water storage district located within 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 flows 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 water 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 Measurement (located 30 miles downstream from Lake 

Isabella), the Second Point of Measurement (located several miles 

downstream from the First Point), and the Kern River-California 

Aqueduct Intertie (Intertie). The First Point of Measurement 

was established to measure river flow prior to major diversions so 

the flows could be properly apportioned among rights holders. 

The Second Point of Measurement was established to document 

deliveries to downstream rights holders. The Intertie is a 
3

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 years, 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 release 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 them into the California Aqueduct.

Existing Kern River Water Rights

California law recognizes “appropriative water 

rights.” These rights allow the rights holder to divert a specified 

quantity of surface water for a reasonable, beneficial use on land. 

Before 1914, Kern River water rights were administered through 

“‘the law of the river,’” arising from a series of court decisions, 

orders, decrees, and agreements dating back to the 1860s.

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 diversions are based on pre-1914 water 

rights. A definitive quantification of all water rights on the Kern 

River has never been conducted.

Pre-1914 water appropriative rights have sequential 

priority. When river flow is insufficient to supply all rights 

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 rights granted by 

the State Board.

Under the 1888 Miller-Haggin Agreement,2 water 

rights were allocated into three groups: First Point rights, 

Second Point rights, and Lower River rights. Water allocations 

are based on the computed natural flow at the First Point, and 

allocations of the First and Second Point flows are made on a 

daily basis. 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 rights 

holders. Allocations to Lower River rights holders are typically 

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 Kern County Water 

Agency holds the Lower River rights.

KWBA Water Source

KWBA does not hold Kern River 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) accounts

for about 24 percent of the water diverted to the KWB.

KWBA has diverted and used Kern River water in 

accordance with the “Policy Re-Utilization of Isabella Reservoir 

Flood Releases” (Flood Policy).3 This policy is implemented by 

2 The Miller-Haggin Agreement was a settlement among 

certain Kern River diverters.

3 The Flood Policy has been in effect at least since 1986.
5

the Kern River Watermaster pursuant to an 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 the Lake Isabella Reservoir by order of 

USACE and (2) such flow enters 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 interest, 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 such 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 Decisions

In 1964, the State Board issued Water Right Decision 

1196 (D-1196), in which it found no Kern River water 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 Declaration. 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 on a 

“change in circumstances.” (Cal. Code Regs., tit. 23, § 871, subd. 

(b).) Circumstances began changing with the construction of the 

Intertie in 1977. The Intertie was built to alleviate flooding in 
6

the lower Kern River region and nearby agricultural lands in wet 

years. The Intertie only diverts 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 has been 

diverted from the Kern River in nine separate years.

In 2007, the Fifth District Court of Appeal decided

North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 

147 Cal.App.4th 555 (North Kern Water Storage)—a case litigated 

amongst First Point 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. 584.) 

The State Board received petitions requesting 

revisions to the FAS Declaration. The State Board found, based 

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 fully appropriated. The State 

Board concluded that “there [was] some unappropriated water”

based on evidence that water in excess of that claimed 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 appropriate 

water from the Kern River.” The State Board clarified that the 
7

“processing water right applications will require consideration of 

numerous issues not addressed in this order,” including “when 

and how much available water there 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 

availability, and other issues relevant to determining whether 

water rights permits may be issued are best determined as a part 

of the processing of water rights applications.”

The Project

The Kern Water Bank Authority Conservation and 

Storage Project (the Project) was proposed by KWBA and is 

designed “to directly divert 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 agency, prepared an 

EIR to evaluate environmental impacts of the Project. The EIR

was also intended to be used by the responsible agency (i.e., the 

4 500,000 AFY is the maximum quantity that KWBA can 

physically divert and recharge within the KWB in the wettest 

years. Any water directly diverted 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 implementation of the project.”

The EIR “addresses the appropriation of high flow 

Kern River water, only available 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 stated 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 specified in the “Project Objectives” 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 through storage within the KWB.”

To fulfill Project objectives, KWBA separately filed an 

application with the State Board (Application 31676), seeking a 

water right permit to directly divert up to 500,000 AFY of water 

from Kern River for underground storage and other beneficial 

uses during years when water is available. The EIR analyzed the 

impacts of State Board approval of this permit. 

The EIR evaluated various environmental impacts, 

including the impacts on hydrology and groundwater resources. 

It used 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. The EIR 
9

discussed the hydrological changes that would occur if the Project 

was implemented.

KWBA conducted a Water Availability Analysis

(WAA)5 with a “key objective” “to determine if flood water is

available for appropriation.” The WAA provided historical 

measurements of diversions of Kern River water 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 the baseline period). From these 

records, the WAA estimated 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 

capacities. 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 by 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 impact on available water 

supply.”

The EIR also discussed the Project’s impact on 

groundwater resources. It determined that there would be a “less 

than significant” impact on groundwater levels, because the 

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

Relevant summaries 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 lowering of 

groundwater levels.” The EIR concluded that “[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 Proceedings

Buena Vista petitioned for a writ of mandate, seeking 

to set aside KWBA’s certification of the EIR and its approval of 

the Project. 

The trial court granted the writ on the ground that 

the EIR was “inadequate.” 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 long-term

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

resolution certifying the EIR, prepare a legally adequate EIR, 

and suspend activities related to its approval of the Project.

DISCUSSION

KWBA contends (1) the Project descriptions of Project 

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

a complete quantification of existing Kern River water rights was 
11

not required; and (3) the EIR properly evaluated the 

environmental impacts of long-term recovery operations 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 in which the 

significant effects of such a project might be minimized; and to 

indicate alternatives to such a project.” (Pub. Resources Code, 

§ 21061.) “Informed public participation is essential to 

environmental review under CEQA.” (Washoe Meadows

Community 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 sense 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 that the descriptions of (1) Project water 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, 193 (County of Inyo).)

“A curtailed or distorted project description may stultify the 

objectives of the reporting process. Only through an accurate 
13

view of the project may affected outsiders and public decisionmakers 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 failure to provide an 

accurate, stable, and finite project description is a failure to 

proceed in a manner required by law. (Id. at p. 200.) 

1. Project Water

Here, the “Project Description” chapter adequately 

and consistently describes Project water as “high flow Kern River 

water, only available 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

describes the “hydrologic conditions” in which Project water 

would be available and defines 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 built, “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 Project 

water would be available in 18 percent of all years, based on 

historical records, which show that the Intertie has operated nine 

years since it was built.

Buena Vista contends 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) “water that was historically offered to the 

Intertie”; (3) “water historically diverted by KWBA”; and (4) 

“‘unappropriated’” or “‘surplus’” water. This contention fails 

because these descriptions are not inconsistent; but instead, they 

describe in different words the same conditions under which 

Project water has historically flowed. 

First, “mandatory release flood flows” is not an 

inconsistent description because, as the EIR explains, Project 

water is available in years when mandatory release conditions 

are triggered—that is, when abnormally heavy flow is released 

from the Isabella Reservoir and the Intertie 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 rights 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 water subject to Lower River rights is
15

appropriated water that does not meet the EIR’s description of 

Project water. 

Second, “water . . . historically offered to the Intertie” 

is not an inconsistent description of Project water. The Project 

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 to capture excess flood 

flows.” Thus, water 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 

explains that pursuant to the Flood Policy, KWBA has

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 activity through use of existing facilities.” The EIR 

further clarifies that the Project would seek a permit “for an 

existing source of water” “only to the extent unappropriated Kern 

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 has historically diverted under the Flood Policy. 

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 

AFY) are included. But purchased water is water that had first 

been diverted pursuant to existing water rights. Thus, purchased 
16

water is not unappropriated water. As such, it does not meet the 

description of Project water.

Buena Vista also contends that the 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 

Stopthemillenniumhollywood.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 building 

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 the site. Such

“concepts and development scenarios—none of which may 

ultimately be constructed,” did 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 provides estimates 

of the amount of water that could have been diverted based on 

historical 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).) Thus, the EIR 

provides 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 quantify 

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 that 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 of 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 Project’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 operations process, and monitoring of 

the groundwater. Nothing in the CEQA guidelines required 

KWBA to provide a specific quantification of the 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 State 
18

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 setting 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 picture 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 rights 
19

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, the 

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 MillerHaggin 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.” The 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 quantification of existing 

water rights.”

Here, a quantification of existing water rights was 

not necessary to an accurate and complete description of the 

environmental setting. Historical use may determine the

quantitative limits on 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 environmental 

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 baseline 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 inadequately analyzed the environmental impacts on (1) 

existing water rights and (2) groundwater from long-term

recovery operations. We again agree. 

A lead agency shall prepare and certify the 

completion of an environmental impact report on a proposed 

project. (Pub. Resources Code, § 21100.) The report is required 

to 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 exist 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 due 
21

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 [] includes

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 allowed the 

processing of applications, such as Application 31676, in its 

Orders WR 2010-0010 and WR 2010-0016, after the State Board

found that water diverted into the Intertie was unappropriated 

water. The State Board determined that such water is “in excess 

of any proprietary water rights.”

A quantification of existing rights was therefore not 

required. Instead, the EIR properly used historical 

measurements of actual water diversions to evaluate the impacts 

on the water supply. (See ante, at pp. 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 stored by existing Kern River 
22

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

The 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 during drought conditions. As such, it 

is likely that the Project will result in groundwater depletion 

from extended recovery operations during a drought.”

But the 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 increase in aquifer 

volume.”

With respect to recovery operations, the EIR specifies 

that the Project “would not recover more groundwater than has 

been recharged.” The EIR states that “maximum recovery 

volumes during an extended 3-year drought, in any single year, 

or in any single month, are not expected to change substantially” 

because no new recovery facilities will be constructed. During an 

extreme drought, the banking and storage of Kern River water 

“may result in extended periods of recovery (e.g., additional 

months or years), but, . . . this would not exceed banked 

quantities.” (Italics added.)
23

Moreover, the EIR explains that KWBA’s preexisting 

operational commitments and monitoring programs6 “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 existing or 

approved land uses.”

Buena Vista argues that the EIR erroneously relied 

on preexisting operations because an EIR cannot use mitigation 

measures to excuse a failure to analyze a project’s impacts. This 

is incorrect. Preexisting operations are not mitigation measures 

designed to reduce a project’s impact. Rather, 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.) 

The EIR thus complied with CEQA requirements in 

adequately assessing long-term recovery operations on 

groundwater levels. Substantial evidence supports the

conclusion that there will not be a significant impact on 

groundwater levels because the Project will not increase longterm 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 Recovery Operations Plan, and the Joint 

Project 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 in 
27

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 

application 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 account for such changing conditions. We also 

conclude that in the absence of a preexisting streamwide 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 KWBA 
28

and is designed “to directly divert up to 500,000 [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].”10

4. On page 10, first 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 properly 

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 within the KWB in the wettest 

years. Any water directly diverted 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. PERREN, J. TANGEMAN, J.