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Petition for Writ of Mandate

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA
LIVING RIVERS COUNCIL, Petitioner and Plaintiff,
vs.
STATE WATER RESOURCES CONTROL BOARD,
Respondent and Defendant.
RG10-543923

WRIT OF MANDATE. (C.C.P. 1094.5; Pub. Res. Code 21168.9.) TO THE CALIFORNIA STATE WATER RESOURCES CONTROL BOARD:

YOU ARE HEREBY COMMANDED TO:

1. Set aside and vacate Resolution 2010-0021 adopted on May 4, 2010, entitled “Adoption of a Proposed Policy for Maintaining Instream Flows in Northern California Coastal Streams” (the “Policy”) in which the Board adopted the Policy and determined that the Draft Substitute Environmental Document, Scientific Basis Report, Sensitivity Study, and response to comments were completed in compliance with CEQA.

2. A set forth in the statement of decision, the court finds that the following action is necessary under Public Resources Code § 21168.9(a) to comply with the provisions of CEQA:

a. The Board must evaluate the “Groundwater Delineations” as a potentially feasible mitigation measure for the anticipated increased use of percolating groundwater and make appropriate disclosures regarding that evaluation and resulting decision.

b. The Board must present sufficient information to enable the decision makers and the public to understand and to consider meaningfully the limited legal options facing the Board to mitigate the expected increase in the use of percolating groundwater and the implications for the effectiveness of the vacated Policy.

3. The Policy was not adopted in compliance with CEQA and therefore must not remain in effect pending compliance with the writ and further CEQA review. The procedural requirements of adequate public disclosure and informed deliberation are not severable from the substance of the vacated Policy. (Pub. Res. Code § 21168.9(a).)

4. The court does not preclude the Board from treating the vacated Policy as a guideline and, if consistent with Water Code 275, Water Code 1200 et seq., and other laws, and if within the proper exercise of the Board’s discretion, processing water applications consistent with the vacated Policy until the CEQA process is completed.

5. The Court does not direct the Board to exercise its lawful discretion in any particular way, (Pub. Res. Code § 21168.9(c).) The court leaves to the Board’s discretion whether it is necessary to recirculate a Substitute Environmental Document. (14 CCR § 15088.5.)

6. The court does not direct the Board to exercise its discretion in any particular way in determining whether the benefits of the vacated Policy as whole outweigh the potential adverse impacts from increased use of percolating groundwater under California’s regulatory structure. (14 CCR § 15093.)

7. The State Water Resources shall make and file its return to this writ not later than October 17, 2012, setting forth what it has done to comply herewith, for the consideration of which a hearing will be conducted at 1:30 pm, on October 24, 2012, in Department 31.

DATED:_____________ Clerk of the Superior Court