The Sonoma County Water Agency's environmental impact report for a project to increase the agency's withdrawals from the Russian River has been thrown out by the First District Court of Appeal. The EIR's analysis of cumulative impacts and project alternatives, and the document's description of the environmental setting were all inadequate, the court ruled. The primary flaw was the agency's failure to consider that the Russian River is likely to have less water in it in the future because various agencies and Pacific Gas & Electric Company are pursuing a plan to decrease diversions from the Eel River to the Russian River. Most of the summertime flow in the Russian River is actually water that has been diverted from the Eel. "[T]he agency's failure to consider the impact of the potential curtailment of water from the Eel River has resulted in an EIR that fails to alert decisionmakers and the public to the possibility that the agency will not be able to supply water to its customers in an environmentally sound way," Justice Sandra Margulies wrote for the court. The plan to decrease diversions from the Eel River to the Russian River had advanced to the point that work had begun on an environmental impact statement. That fact alone made the cut in diversions a "reasonably foreseeable future project" that the EIR had to discuss in the project setting and in the analysis of cumulative impacts, the court ruled. Water has been a big issue in Sonoma County for decades, and the Sonoma County Water Agency — which serves 500,000 customers in unincorporated Sonoma and Marin counties and in eight cities — is the biggest player. The agency has the rights to 75,000 acre-feet of water a year from the Russian River, of which the agency uses about 55,000. To meeting growing demand, the agency proposed to increase its Russian River take to 101,000 acre-feet annually and to expand storage capacity. At the same time the agency was considering its plan, the Federal Energy Regulatory Commission (FERC) was reviewing a "consensus recommendation" from the U.S. Fish and Wildlife Service, the California Department of Fish and Game, the National Marine Fisheries Service and PG&E to reduce by 22% the diversion of water from the Eel River to the Russian River. Since 1965, PG&E has had a license to divert between 159,000 acre-feet and 181,000 acre-feet per year from the Eel for hydroelectric plants elsewhere. Most of that diverted water ends up in the Russian River. Those diversions have harmed fish in the Eel River, including some species of salmon that are now endangered. The Sonoma County Water Agency gave FERC an alternate proposal for curtailing the diversion by only 10%. The proposed 22% reduction would have severe environmental consequences, including the potential for dewatering part of the Russian River during critically dry years, the agency told FERC. However, in its EIR for the proposal to take more water from the Russian River, the agency "made only a summary reference to the pending FERC proceedings," according to the court. So environmental organizations sued, arguing that the EIR was inadequate and that the agency had broken some planning laws. Sonoma County Superior Court Judge Lawrence Antolini ruled for the county. But the First District overturned Antolini's decision regarding the EIR. The court was clearly distressed at the agency's failure to address the proposals to reduce water flowing into the Russian River — proposals that the agency argued were speculative, and, therefore, not in need of consideration under the California Environmental Quality Act (CEQA). "The record tells a far different story from the one the agency relates in its EIR," Justice Margulies wrote. "Although the agency euphemistically describes the flow proposals before FERC as ‘modifications,' every proposal before FERC — including the agency's own — posits a decrease in the amount of water available to the agency to supply its customers' needs at a time when the agency is seeking to increase the amount of water it takes out of the Russian River." In fact, one month before certifying its EIR, the agency sent a letter to FERC describing the enormous environmental and economic consequences that the proposed 22% reduction in diversions would have. Yet, the "EIR completely fails to alert the public and the decisionmakers to the cumulative impact of Eel River curtailments pending before FERC and increased Russian River diversions proposed in the project," Margulies wrote. "CEQA requires more than this." Because the EIR's discussion of cumulative impacts was deficient, the section regarding alternatives was also lacking. "Alternatives that would reduce the agency's reliance on water from the Eel River would be among the alternatives that must be considered by the agency in the event it determines that the cumulative impact of the project and the FERC proceeding is significant," the court ruled. The court also ruled that the environmental setting in the EIR was deficient because of the failure to discuss in detail the proposed diversion reduction and the condition of the Eel River water supply. The court rejected environmentalists' arguments that the EIR had to address the water agency project's impacts on the Eel River because, the court held, the project would cause no significant impact to the Eel. The court also dismissed arguments that the EIR's discussion was growth-inducing impacts was inadequate. And the court rejected arguments that the project violated some state laws regarding general plan consistency and compliance with local zoning ordinances. In a short concurring and dissenting opinion, Justice Douglas Swager said that the two-justice majority was wrong about impacts to the Eel River. Until there is an adequate description of the environmental setting, "it is premature to find that the project has no significant impact on the Eel River," Swager wrote. He agreed with his two colleagues on the rest of the issues. The Case: Friends of the Eel River, v. Sonoma County Water Agency, No. A098118, 03 C.D.O.S. 4165, 2003 DJDAR 6532. Filed May 16, 2003. Modified June 13, 2003. The Lawyers: For Friends: Stephan Volker and Eileen Rice, (510) 496-0600. For the agency: Jill Golis and Sheryl Bratton, deputy county counsels, (707) 565-2421.