Cal WaterFix Appeal hearing begins at the Delta Stewardship Council

Hearing on whether the California Water Fix is consistent with the Delta Plan is expected to last three days

Today, the Delta Stewardship Council will begin what is expected to be a three-day public hearing on the appeal of DWR’s consistency determination for the California WaterFix project.

The 2009 Delta Reform Act created the Delta Stewardship Council and charged the Council with preparing a long-term management plan for achieving the coequal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. The Act also specifies that the coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place.

The first Delta Plan was adopted by the Council in 2013.  Since then, the Plan has been updated to refine performance measures, exclude single-year transfers as a covered action, address levee maintenance through the Delta Levee Investment Strategy, and most notably to this hearing, address improving conveyance, storage, and operations (CSO) in the Delta.  The CSO amendment was based on 19 principles and said, among other things, that new conveyance in the Delta should be “a combination of new isolated conveyance and improved through-Delta conveyance facilities (dual conveyance) with access to multiple points of diversion, including one or more screened diversions.”

Per the Delta Reform Act, any agency undertaking a project or action that qualifies as a covered action as defined in the legislation must certify that the project or action is consistent with the Delta Stewardship Council’s Delta Plan.   In July of 2018, the Department of Water Resources submitted their consistency determination for the California Water Fix project, certifying that it was consistent with the Delta Plan.

Any person who feels that a proposed action is inconsistent with the Delta Plan and that it will have a significant adverse impact on the achievement of one or both of the coequal goals may file an appeal with the Council.  Nine appeals from 26 parties were filed; the objections include that the determination is premature because the supplemental EIR is not final, the Delta Plan is under litigation and therefore invalid, the project is inconsistent with coequal goals and Delta Plan policies such as reduced reliance and flow criteria, and that implementing the project does not protect and enhance the Delta as an evolving place.

The appeal process will focus on whether there is substantial evidence that supports certification.  If there is substantial evidence, the certification must be upheld; if not, the action is remanded back to the agency, which in this case would be the Department of Water Resources.  The Department could then submit revised certification.  In order for project to move forward, all appeals must be resolved.

The Delta Stewardship Council has seven members; however two of the councilmembers, Susan Tatayon and Ken Weinberg, have recused themselves from the process due to potential conflicts of interest.

The hearing begins today and will be webcast.  Due to the number of presentations scheduled, public comment is not expected to begin until Friday.

The Council is expected to release a draft determination by November 1st, possibly hold a public hearing mid-November on the draft determination, with a final determination at the December council meeting.


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