Sacramento County Superior Court Rules in Favor of the State Water Board’s Substitute Environmental Document for Phase I of the Bay-Delta Plan

Water Law  

March 22, 2024


On March 15, 2024, the Sacramento County Superior Court found that the State Water Board’s substitute environmental document did not violate the Porter-Cologne Act, the California Environmental Quality Act (“CEQA”), the public trust doctrine, or article X, section 2 of the California Constitution. (State Water Board Cases, Super. Ct. Sacramento County, 2024, No. JCCP5013.)  The court found that the State Water Board sufficiently evaluated the impacts of the updated plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan”) and complied with its obligations under the Porter-Cologne Act and CEQA when it established a 40% unimpaired flow objective to protect San Joaquin River watershed fish populations.


In 2018, the State Water Board certified a substitute environmental document that analyzed the impacts of “Phase I” of the updated the 2006 Bay-Delta Plan, which deals with flows in the San Joaquin River basin. Under Phase I, the State Water Board ordered a 40% unimpaired flow to support and maintain the San Joaquin River watershed fish populations migrating through the Delta. When determining that there needed to be an increase in unimpaired flows, the State Water Board depended on a 2012 technical report that found increased unimpaired flows are needed in February through June when juvenile fall-run Chinook Salmon are migrating from the San Joaquin River basin through the Delta and out to the ocean. The State Water Board set a goal to maintain 40% unimpaired flow, with flows that will vary between 30%-50%, in each of the Stanislaus, Tuolumne, and Merced Rivers from February through June.

To update the 2006 Bay-Delta Plan, the State Water Board had to abide by the Porter-Cologne Act and CEQA. The Porter-Cologne Act gives the State Water Board the authority to develop, adopt, and periodically amend plans to protect the quality of state waterways. When adopting these plans, Water Code section 13241 requires that the State Water Board establish water quality objectives that will ensure the reasonable protection of beneficial uses, such as domestic and agricultural usage of water. Under CEQA, the State Water Board must conduct an environmental review when adopting a water quality control plan that may have significant environmental impacts. Here, the State Water Board prepared a program-level substitute environmental document to discuss potential environmental impacts, identify ways to minimize and mitigate those impacts, and disclose the government’s reasoning for updating the Bay-Delta Plan.

The Court’s Decision

Many parties contesting the substitute environmental document argued that the State Water Board did not consider the impacts to water supplies used for other beneficial uses such as municipal, industrial, and agricultural uses. One of the factors the State Water Board must consider when establishing water quality objectives under Water Code section 13241 is the “past, present, and probable future beneficial uses of water.” However, the court found that the State Water Board adequately considered the water supply impacts and did not abuse its discretion when considering section 13241’s factors. The court held that section 13241 “only requires consideration of the listed factors when establishing water quality objectives,” but does not specify how that must be done. The court found that the State Water Board engaged in “rational, sophisticated, and thoughtful analyses of the potential impacts the flow objectives will have on municipal, industrial, and agricultural water supplies….”  The court recognized that the State Water Board’s flow objectives would cause several significant impacts to other beneficial uses, but ultimately found that section 13241 gives the State Water Board the discretion to make these difficult determinations about competing beneficial uses and upheld the Board’s decision under the Porter-Cologne Act.

Next, the court examined the CEQA claims, which centered around arguments that the substitute environmental document was inadequate because it underestimated the impacts of imposing a 40% unimpaired flow requirement. Parties also claimed that the substitute environmental document did not adequately analyze the impact that the updated Bay-Delta Plan would have because it improperly segmented the project by not considering the State Water Board’s upcoming update to the Sacramento River and Delta watersheds, called “Phase II,” of the Bay-Delta Plan. The court disagreed with the improper segmentation argument because the State Water Board could implement the 40% unimpaired flow objective separately from its Phase II proceedings of the Bay-Delta Plan. Specifically, the court found that “the [Lower San Joaquin River] flow and southern Delta salinity objectives operate independently of any future amendments in the Sacramento River or Delta watersheds and can be implemented separately.”  The court stated that the interconnected ecosystems of the Delta did not require the State Water Board to consider the environmental impacts of Phase I and Phase II in a single environmental review process. The court ultimately held the State Water Board properly exercised its discretion to evaluate revisions to the Bay-Delta Plan in phases with separate environmental reviews because each of the phases dealt with different areas, and within these areas, the native fish populations had different needs.

In considering challenges to the State Water Board’s adoption of the Phase I substitute environmental document under the common law public trust doctrine Constitution, the Court held that the State Water Board satisfied its affirmative duty to take the public trust into account in the planning and allocation of water resources and protect trust resources when feasible by satisfying its responsibilities under the Porter-Cologne Act. Similarly, the court held that the State Water Board did not act in an arbitrary or capricious manner that would amount to a violation of its authority to balance competing beneficial uses of water under article X, section 2 of the California Constitution.

Conclusion and Implications

The parties challenging the State Water Board’s Phase I decisions will have the option to appeal the superior court’s decision. While the lawsuit is pending, the State Water Board is proceeding with Phase I and will hold hearings on how to allocate unimpaired flow responsibilities among existing water right holders. On March 8, 2024, the State Water Board gave notice of a public workshop to discuss the voluntary agreements proposed by water users in the Sacramento River and Delta watersheds as an alternative to unimpaired flow requirements under Phase II. This workshop will take place from April 24-26, 2024, at the CalEPA building on 1001 I Street, Second Floor, Sacramento, CA 95814 and via video and teleconference. More information on the Bay-Delta Plan developments is available on the State Water Board’s website.