Deltakeeper v. Oakdale Irrigation Dist.
Filed 8/31/06 Deltakeeper v. Oakdale Irrigation Dist. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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| DELTAKEEPER, Plaintiff and Appellant, v. OAKDALE IRRIGATION DISTRICT et al., Defendants and Respondents. |
C049798
(Super. Ct. No. 04CS00188) |
| DELTAKEEPER et al., Plaintiffs and Appellants, v. MERCED IRRIGATION DISTRICT et al., Defendants and Appellants. |
(Super. Ct. No. 04CS00227)
|
| DELTAKEEPER et al., Plaintiffs and Appellants, v. SOUTH SAN JOAQUIN IRRIGATION DISTRICT et al., Defendants and Appellants. |
(Super. Ct. No. 04CS00228) |
These cases, consolidated for appeal, involve questions whether irrigation districts violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.[1] (CEQA)) by adopting negative declarations[2] instead of preparing environmental impact reports (EIRs) for programs applying aquatic herbicides/pesticides[3] to keep irrigation canals clear of weeds and algae. Environmental review of these long-standing programs was newly triggered by permit requirements of the State Water Resources Control Board (SWRCB) to satisfy federal law (National Pollution Discharge Elimination System (NPDES) permits under the Clean Water Act, 33 U.S.C. § 1251 et seq.).
In the trial court, various groups filed petitions for writ of mandate against various irrigation districts and state agencies, alleging CEQA violations. The cases were not consolidated in the trial court but were all assigned to one judge. This consolidated appeal involves the following trial court proceedings:
1. Deltakeeper[4] sought a writ of mandate against Oakdale Irrigation District and its Board of Directors (collectively Oakdale); the Governor's Office of Planning and Research (OPR); OPR's acting director Jan Boel; and the State Clearinghouse and its director Terry Roberts (collectively the State). Deltakeeper complained, among other things, that inadequate time was allowed for public comment. The trial court found a CEQA violation but no prejudice and therefore denied the writ petition. Deltakeeper appeals.
2. Deltakeeper, San Joaquin Raptor Rescue Center, Protect Our Water, and Central Valley Safe Environmental Network (collectively Deltakeeper, for ease of reference[5]) sought a writ of mandate against Merced Irrigation District (Merced) and the State. The trial court held Merced abused its discretion in adopting a negative declaration, and the evidence supported a fair argument that the program had potential significant impacts to natural habitat and groundwater. Merced appeals. Deltakeeper cross-appeals, complaining the trial court denied a motion to augment the record and failed to find additional potential impacts.
3. Deltakeeper, San Joaquin Raptor Rescue Center, Protect Our Water, and Central Valley Safe Environmental Network (collectively Deltakeeper), filed a writ petition against South San Joaquin Irrigation District (SSJID) and the State. The trial court found substantial evidence of potential impact on groundwater and concluded SSJID abused its discretion in adopting the negative declaration. SSJID appeals, arguing possible mootness and lack of substantial evidence. Deltakeeper cross-appeals, complaining the trial court denied a motion to augment the record and failed to find additional potential impacts.
This appeal thus involves three cases, to which we shall refer as the Oakdale case, the Merced case, and the SSJID case. Other related cases involving other irrigation districts were simultaneously heard in the trial court but are not at issue in this appeal.
We shall reverse the judgment in the Oakdale case, because the shortened comment period caused prejudice. We shall affirm the judgments in the Merced and SSJID cases, because evidence of potential impacts made the negative declarations inappropriate.[6]
FACTUAL AND PROCEDURAL BACKGROUND
1. The Oakdale Case
Oakdale's district, located in eastern Stanislaus County and southeastern San Joaquin County, delivers water to irrigate pastures and agricultural land in the Stanislaus River watershed. Oakdale maintains over 330 miles of lateral canals and pipelines, 110 miles of drains, and 40 miles of main canals. About 15 percent of the facilities are lined ditches and cement pipelines; the remainder are dirt-lined or clay-lined ditches. Oakdale's canals drain into the Stanislaus River, Lone Tree Creek, and Dry Creek -- all of which are tributaries of the San Joaquin River.
Since 1985, Oakdale has applied aquatic pesticides to its irrigation system as part of its pesticide application program to control weeds and algae that interfere with water conveyance and clog waterways and irrigation machinery. The pesticides used are Magnacide H (acrolein), Rodeo/AquaMaster (glyphosate), copper sulfate, and Clearigate (copper as elemental). Before this case arose, the program had never been required to undergo CEQA review.
In 2001, the Ninth Circuit Court of Appeals held that irrigation canals that contribute water flow to a natural stream or water body are â€
