Sacramento Superior Court Sets Aside Proposed Pardee Reservoir Expansion Because Environmental Impact Report Failed to Consider Various Cultural, Historical and Natural Resources

On April 11, 2011, Sacramento Superior Court Judge Timothy Frawley ruled in favor of Foothill Conservancy, California Sportfishing Protection Alliance and Friends of the River in their lawsuit against East Bay Municipal Utility District (EBMUD). The groups opposed EBMUD’s 2040 water plan, which proposed to expand EBMUD’s main reservoir, the Pardee Reservoir, as part of an effort to increase the utility’s water supply during times of drought. The court found the agency’s EIR was flawed in many respects, including the EIR’s failure to consider the project’s harm to important local resources, the Native American cultural values associated with the Mokelumne River, public safety concerns associated with the removal of the 1912 Middle Bar Bridge, and EBMUD’s failure to explore the expansion of the Los Vaqueros Reservoir as a water supply alternative.

In 2009, EBMUD proposed to expand its Pardee Reservoir and submitted an EIR to its Board of Directors for certification. The Pardee Reservoir, located in the Sierra Foothills, diverts water from the Mokelumne River and provides drinking water for the East Bay region. The river is a popular site, attracting visitors for fishing, camping, water play and other recreational activities, and is the site of many Native American cultural and historical resources. The 2040 water plan proposed to expand the Pardee Reservoir by creating a dam and submerging nearly two miles of the Mokelumne River. Middle Bar Run, an area of the Mokelumne River which holds recreational, cultural and historical significance, would have been completely immersed. In 2009, EBMUD’s Board of Directors certified the project’s EIR. Plaintiffs brought suit against EBMUD to enjoin the agency from proceeding with the plan.

The court found that EBMUD’s EIR failed to adequately address the substantial impact the expansion would have on the Mokelumne River, noting the EIR had completely overlooked the existence of Middle Bar Run. As explained in the court’s statement of decision, in addition to the recreational activities and natural scenic beauty that the Mokelumne River provides, the river is an area that is considered sacred to the native Miwok. Federal agencies have regarded Native American cultural values to be one of the outstanding attributes to the Mokelumne River and, yet, the EIR failed to consider the potentially significant impact that the expansion would have on native Miwok ancestral gathering places. Additionally, the proposal included the removal of the 1912 Middle Bar Bridge, which serves as a critical fire evacuation route for local residents. Further, the EIR failed to consider public safety concerns that would arise from the removal of the 1912 Middle Bar Bridge, which serves as a critical fire evacuation route for local residents.

Lastly, Judge Frawley criticized EBMUD’s failure to consider the expansion of the Los Vaqueros Reservoir, a local water supply and alternative that would have provided partnership opportunities to jointly resolve local water supply issues. In 2009, the utility had opted not to work with the Contra Costa Water District on the Los Vaqueros Reservoir water expansion, citing uncertainties associated with that project. The court found EBMUD should have considered investing in the Los Vaqueros Reservoir expansion project as a less destructive option to constructing a separate dam in the Sierra Foothills.