At the same time, the Court validated the Council’s role in creating an enforceable Delta Plan, and the Council’s use of best available science to set direction for the Delta.
While the Council is still considering the full implications of the ruling, we are disappointed that the Court chose to invalidate the entire Delta Plan because of what it identified as inadequacies in two discrete areas:
The lack of legally enforceable, quantifiable targets for achieving reduced Delta reliance, reduced harm from invasive species, restoring more natural flows and increased water supply reliability, and
Inadequate “promotion” of options to improve the way water projects move water across the Delta.
It is important to note that the Court was only able to consider the Delta Plan as it was adopted in May 2013.
Over the past three years the Council – working with state and local agencies and a wide range of stakeholders – has greatly improved the Plan’s performance measures. The Council conducted a rigorous public process and adopted refined measures in February of this year.
In addition, the 2009 Delta Reform Act envisioned that the then-Bay Delta Conservation Plan, which proposed new Delta conveyance, would be automatically incorporated into the Delta Plan if it met all other requirements of law. Now that the BDCP is no longer being pursued consistent with that provision of the Delta Reform Act, the Council last year began work on potential amendments to promote conveyance options with new storage and improved operations to achieve the coequal goals.
By tentatively invalidating the Delta Plan, the Court would remove the enforceability of uncontested policies such as those protecting portions of the Delta for future habitat restoration, prohibiting new development in floodplains and floodways, and requiring the use of best available science and adaptive management for projects in the Delta.
The Delta remains in crisis and now isn’t the time to set aside the State’s only comprehensive management plan for the Delta.
Because of this, the Council likely will appeal.
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