Modification: Delta Stewardship Council Cases

DELTA STEWARDSHIP COUNCIL CASES.

C082944 & C086199

(JCCP No. 4758; Sacramento Super. Ct. case Nos. 34-2013-80001500, 34-2013-80001530, 34-2013-80001534; San Francisco Super. Ct. case Nos. CPF-13-513047; CPF-13-513048, CPF-13-513049.)

California Courts of Appeal

Third Appellate District

(Sacramento)

Filed June 8, 2020

CERTIFIED FOR PARTIAL PUBLICATION^*

^* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of the Discussion entitled "THE FEES CASE."

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Affirmed in part and reversed in part.

Best Best & Krieger, Charity Schiller, Stefanie Morris, Jennifer Lynch for Plaintiffs and Appellants State Water Contractors, Alameda County Flood Control and Water Conservation District Zone 7, and San Bernardino Valley Municipal Water District.

Marcia L. Scully, Adam C. Kear, Robert C. Horton, and Stefanie Morris for Plaintiff and Appellant The Metropolitan Water District of Southern California.

Brunick, McElhaney & Kennedy, William J. Brunick, and Leland McElhaney for Plaintiffs and Appellants Mojave Water Agency and Antelope Valley-East Kern Water Agency.

Stanly T. Yamamoto, District Counsel, and Anthony T. Fulcher, Assistant District Counsel for Plaintiff and Appellant Santa Clara Valley Water District.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, Rebecca Harms, and Carissa M. Beecham for Plaintiffs and Appellants San Luis & Delta-Mendota Water Authority and Westlands Water District.

Pioneer Law Group, Andrea A. Matarazzo; and Jon D. Rubin, General Counsel for Plaintiff and Appellant Westlands Water District.

Rebecca R. Akroyd, General Counsel for Plaintiff and Appellant San Luis & Delta-Mendota Water Authority.

Freeman Firm, Thomas H. Keeling; Law Office of John H. Herrick, John H. Herrick; Mohan, Harris, Ruiz, Wortmann, Perisho & Rubino, S. Dean Ruiz; Nomellini, Grilli & McDaniel, Dante John Nomellini, Dante John Nomellini, Jr., and Daniel A. McDaniel for Plaintiffs and Appellants Central Delta Water Agency, South Delta Water Agency, Lafayette Ranch, Inc., and Cindy Charles.

Michael B. Jackson for Plaintiffs and Appellants California Sportfishing Protection Alliance, California Water Impact Network, and AquAlliance, Friends of the River and Restore the Delta.

Soluri Meserve and Osha R. Meserve for Plaintiff and Appellant Local Agencies of the North Delta.

E. Robert Wright for Plaintiff and Appellant Friends of the River.

John Buse for Plaintiff and Appellant Center for Biological Diversity.

Law Offices of Michael A. Brodsky and Michael A. Brodsky for Plaintiff and Appellant Save the California Delta Alliance.

Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General, Deborah M. Smith, Supervising Deputy Attorney General, Jeremy Brown, Daniel L. Siegel, Matthew Struhar, Deputy Attorneys General; Shute, Mihaly & Weinberger, Ellen J. Garber, Gabriel M.B. Ross, and Sarah H. Sigman for Defendants and Appellants Delta Stewardship Council.

Law Offices of Stephan C. Volker, Stephan C. Volker, and Alexis E. Krieg for Plaintiffs and Respondents North Coast Rivers Alliance, Pacific Coast Federation of Fishermen's Associations, San Francisco Crab Boat Owners Association, and Winnemem Wintu Tribe.

THE COURT:

It is ordered that the opinion filed herein on April 10, 2020, and modified and certified for partial publication on May 12, 2020, be modified as follows:

1. On page 5, following the heading "Factual Background" and immediately preceding the subheading "The Delta, Its Ecosystem, and California's Water Supply" the following paragraph is added:

The information in this section is largely drawn from the statutes added by the Delta Reform Act, the Delta Plan, and the 2008 Delta Vision Strategic Plan (Strategic Plan). The remaining information was taken from various documents in the administrative record.

2. On page 6, in the first full paragraph beginning with "The Delta is the terminus" the fifth sentence is modified to delete the words "It extends" and add "The Delta and Suisun Marsh estuary extend" in its place. As modified this sentence now reads:

The Delta and Suisun Marsh estuary extend westward to the Golden Gate and southward to San Jose.

3. On page 10, in the first full paragraph beginning with "Approximately half of the water" the second sentence is modified to delete the word "some" and replace it with "much", and delete the phrase "the diversion of water" and replace it with the words "this diversion". As modified this sentence now reads:

While much of this diversion occurs at points upstream, before the Sacramento and San Joaquin Rivers reach the Delta, the last and largest draws take place in the Delta itself.

4. On page 11, in the last full paragraph beginning with "After many years of slow decline," the third sentence and attached footnote 9 are deleted, which will require renumbering of all subsequent footnotes. The following is inserted in its place:

The list of causes negatively affecting the Delta ecosystem begins, but does not end, with all the water withdrawals, which have been characterized as a "kind of tax that leaves the [Delta] [eco]system in a condition of chronic drought. The specific, peculiar manner in which the last large gulps of water are withdrawn adds to the ecological cost."

5. On page 15, in the first sentence of the first full paragraph beginning with "In 2008, the Task Force" the words "Delta Vision Strategic Plan" and the following parentheses around the words "(Strategic Plan)" are deleted. As modified this sentence now reads:

In 2008, the Task Force presented its findings and recommendations in its Strategic Plan.

This modification does not change the judgment. The petition for rehearing filed by Water Contractors on June 2, 2020, is denied.

FOR THE COURT:

/s/

RAYE, P. J.

/s/

HULL, J.

/s/

BUTZ, J.